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Rufaro Mining and Geological Services (Private) Limited v Agricultural and Rural Resettlement Authority and Delfreight (Private) Limited
HH 95-12HH 95-122012
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RUFARO MINING AND GEOLOGICAL SERVICES (PRIVATE) LIMITED
versus
AGRICULTURAL AND RURAL RESETTLEMENT AUTHORITY
and
DELFREIGHT (PRIVATE) LIMITED
HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 6, 8 & 18 February 2008 & 8 February 2012
Opposed Court Application
Mrs JB Wood, for the plaintiff
K Jakachira, for the first defendant
G Mtisi, for the second defendant
HUNGWE J: Plaintiff issued summons claiming the following relief;
1(a) From first defendant the summer of Z$16,321,929,962, 00;
(b) from second defendant the sum of Z$16 721 829 962, 00;
(c) interest on the side sums calculated at the prescribed rate from the 9 th September
2005 to the date of payment
(d) cost of suit from defendants jointly and severally, the one carrying the other to be
absolved.
Alternatively, from first defendant;
2(a) the sum of Z$33 043 659 925, 00;
(b) interest on the said sum calculated that the prescribed rate from 9 th September
2005 to the date of payment
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(c) cost of suit.
Alternatively from second defendant;
3(a) payment of the sum of Z$33 043 659 925, 00
(b) interests on the said sum calculated at the prescribed rate from the 1 st February
2005 to the date of payment;
(c) cost of suit.
Alternatively from the first and second defendant’s jointly and severally, the one paying
the other to be absolved;
4(a) payment of the sum of Z$33 043 069 925, 00
(b) interest on the side sum, calculated at the prescribed rate from the 1st February
2005 to the date of payment;
(c) costs of suit.
The cause of action under para 1 is based on the breach of contract arising from an
agreement made between the parties on or about 9 September 2005.
The first alternative is a claim for damages plaintiff says it suffered due to the negligence
of the second defendant’s employees.
The second alternative claim is based on the alleged breach of an agreement reached
between it and first defendant on or about 9 September 2005; alternatively it is based on an
alleged breach of an agreement between plaintiff and first defendant on or about December 2005;
alternatively arising from the negligence of first defendant’s employees.
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In the third alternative the plaintiff claims against both defendants jointly and severally
the one thing the other to be absolved, damages suffered due to the negligence of both
defendants’ employees
Plaintiff set out the basis of its claims in its declaration in the following terms: plaintiff
carries on business of excavating. It is duly incorporated in terms of the laws of Zimbabwe.
First defendant is the Agricultural and Rural Development Authority, a body duly incorporated
under the Agricultural and Rural Development Authority Act [Cap 8: 01]. Second defendant is
Delfreight (Private) Limited, a company duly incorporated in terms of the laws of Zimbabwe and
carrying on the business of a transporter. In December 2004 plaintiff completed an excavation
contract for first defendant at Middle Sabi. It was further contracted to conduct further
excavations at Chiduku Ngowe. First defendant engaged second defendant, for reward, to
transport the excavator to Chiduku Ngowe using first defendant’s low-bed trailer. On the way,
second defendant’s motor vehicle which, at the time, was being driven by the second defendant’s
employee within the course and scope of his employment, left the road causing the plaintiff’s
excavator to fall off the trailer. The excavator was extensively damaged in the accident.
On or about 9 September 2005 both defendants agreed to bear the costs of repairs to the
plaintiff’s excavator in equal shares; alternatively, so the plaintiff alleges, first defendant agreed
to pay for the full loss suffered by the plaintiff. Despite demand, save for the payment of
Z$400,000,000, 00 from first defendant’s insurers, defendants have refused or neglected to pay
the sums due. Plaintiff avers in its declaration that, alternatively, in the event that it is found that
there was no agreement aforesaid, the said incident was caused by the negligence of the
employees of the second defendant acting within the course and scope of their employment, who
were negligent in one or more of the following respects;
(a) They failed to ensure that the excavator was properly secured;
(b) The aforesaid the driver was travelling at a speed excessive in the prevailing
circumstances;
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(c) The said driver failed to keep the motor vehicle under proper control.
In the first alternative, plaintiff states that it was an implied term of the agreement
between plaintiff and first defendant that the excavator will be returned in an undamaged
condition. In breach of the agreement, first defendant failed to return the excavator in an
undamaged condition. The first defendant was aware at the time of contracting that plaintiff
needed the excavator for the due performance of its contracts and that should the first defendant
failed to return it in a good state of repair, plaintiff would be unable to perform its contracts and
would suffer loss of income as a result. Accordingly, first defendant is liable to the plaintiff for
the full loss of income suffered by the plaintiff.
In the second alternative, the incident resulting in the damage to the plaintiff’s excavator
was caused by the negligence of first defendant’s employees who, acting within the course and
scope of their employment failed, upon loading the excavator, to secure it properly. When the
first defendant’s employees loaded the excavator, they knew, or ought to have known that if that
was not properly secured it would fall off the trailer and plaintiff would suffer loss of income.
On that basis plaintiff states that first defendant is liable to it in damages.
In the third alternative, plaintiff states that the incident resulting in the damage to the
excavator was caused by the negligence of both defendants’ employees were acting within the
course and scope of the employment. They knew, or ought to have known, that the excavator
was required by the plaintiff for the performance of its contracts and that if it fell off the trailer it
could be rendered unfit for use thereby resulting in loss of income by the plaintiff. On that basis
plaintiff holds both defendants liable for such loss of income.
To these claims the first defendant pleaded as follows. First defendant denies that the
agreement to carry out additional works its Chiduku Ngowe was a new contract stating that it
was mere extension of the same works covered by the same terms and conditions stipulated in
the Government of Zimbabwe tender number RDS 9/2004. First defendant denies that it was
given possession, control and custody of the excavator for the purpose of transporting it to
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Chiduku Ngowe but instead avers that first defendant provided the low-bed trailer to transport
the excavator whilst second defendant provided the mechanical horse that pulled the trailer. In
these circumstances first defendant states that both defendants had joint and equal possession,
custody and control of the excavator, with plaintiff’s and full knowledge and consent, whilst in
transit to Chiduku Ngowe.
First defendant states that second defendant’s driver was compelled to swerve to avoid a
head-on collision with another on-coming motor vehicle which had encroached on to second
defendant’s lane. While admitting that the plaintiff’s excavator was extensively damaged in the
accident, first defendant denies that it was damaged beyond repair. First the defendant denied
that defendants agreed to pay the loss suffered by the plaintiff. It maintained that the meetings
undertaken by the parties were held in an effort to achieve an amicable settlement on a “without
prejudice” basis. First defendant wished to see plaintiff back in business but at no stage admitted
liability. In this regard first defendant points to the fact that neither its senior management nor its
Board of Directors passed or adopted a resolution admitting liability for the loss allegedly
suffered by plaintiff. In any event if anyone purported to admit liability on behalf of first
defendant as such admission was the result of a mistake. First defendant states that this is the
position because the contract between the parties is governed by clause 16 of the tender
document. In terms of that clause the plaintiff indemnified the government of Zimbabwe against
any claims arising from the use of the equipment on hire or whilst in transit. First defendant
states that plaintiff was aware that there was no privity of contract between first defendant and
plaintiff hence first defendant was a mere beneficiary of the tender floated by the government of
Zimbabwe.
The first defendant denied that the incident in which the plaintiff’s excavator was
damaged was caused by the negligence of second defendant’s employees. It further says that it
must have been within reasonable contemplation of the plaintiff that the excavator may be
damaged in transit or during its use and insured against such loss and damage. Failure to so
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insure indicates that plaintiff failed to mitigate its loss. Further by failing to take steps to ensure
that the excavator was repaid in time demonstrates that the plaintiff failed to mitigate its loss.
Second defendant in its plea denied that the excavator fell off the trailer due to its truck-
driver leaving the road but rather because it was not well secured to the trailer. Second
defendant never agreed to share the loss suffered by plaintiff. Second defendant denied that its
driver was in any way negligent. It maintained that the duty to properly secure the excavator lay
with the owner of the trailer who is first defendant. Second defendant pleaded that its driver was
not the proximate cause of the accident which the excavator fell. Had this been the case, police
would have charged its driver with negligent driving. On that basis second defendant denies any
liability for damages suffered by the plaintiff.
Pre-trial conference issues
At the pre-trial conference the parties filed a joint pre-trial conference minute identifying
no less than twelve issues for determination by this court. At the same conference plaintiff
admitted that no criminal charges were laid against the second defendant’s driver. On the other
hand second defendant admitted that its driver was driving the mechanical horse pulling the
trailer from which the excavator fell.
The evidence
Plaintiff relied on the evidence of three witnesses namely Jeremiah Saxon Bonde, his
wife, Euzilah Rufaro Bonde and Fungai Peter Kanonda. First defendant called Zebediah
Nhamoinesu Murungweni and Willard Tendai Mbona to testify on its behalf. Second defendant
called Dennis Shoko and Darlington Mandiringa.
Plaintiff’s evidence
The plaintiff led evidence from its two directors and the excavator operator. Jeremiah
Bonde’s evidence was that he is plaintiff’s managing director. In June 2004 he tendered for the
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contract with first defendant for works at defendant’s Middle Sabi Estate. He said that this was
in response to an advertisement posted by first defendant by the addressing a letter to first
defendant’s chief executive in May 2004. In the letter, he spelt out the plaintiff’s charges for the
excavator and the terms for hire. First defendant engaged the plaintiff before any formal contract
was signed. He moved from site on the strength of the discussions and the terms set out in his
letter. Bonde states that plaintiff moved its equipment to site before payment of mobilization
fees which were to be on first defendant’s account. This mobilization cover includes cost of
transportation, insurance for the excavator in transit as well as the labour associated with the
movement of the excavator and general administration of the process. He made these
arrangements with one Chagombera of first respondent. He denied that he was awarded the
contract on the basis that first defendant was on the approved government list. In any event the
formal contract was signed two months into the contract. He told the court that he was never
made aware of the government tender applicable to the contract nor were the terms and
conditions of the tender drawn to his attention.
He said that at the end of the Middle Sabi works they were awarded a job at Nuanetsi.
Upon the completion of the Middle Sabi works around 4 December 2004, they were advised to
shelve the move to Nuanetsi and proceeded instead to Chiduku and Romsey in Manicaland
Province. The witness was asked to quote for the Chiduku job as well as the mobilization fees.
Makombe told him, upon submission of the quote that mobilization fees were not ready as the
contract for the project had not been drawn. This witness says he was waiting for the payment of
the demobilization fee in order for him to arrange the movement of the excavator to Chiduku. It
never came. Plaintiff kept the excavator at Middle Sabi so that first defendant pays the
mobilization fee for the Chiduku project. On 22 January 2005 he received a telephone call in
which the news of the accident involving the plaintiff’s excavator was given. He went to
Chipembere outside Nyazura on the Harare-Mutare the road. On arrival he’s saw the excavator
upside down near the highway. He took his employees for medical examination and drove back
to Harare. A few days later he was advised that the plaintiff’s excavator had been moved to
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Komatsu in Ruwa. Eventually all the parties involved in the movement of the excavator that is
first and second defendant’s the insurers and legal practitioners proceeded to inspect the
excavator in Ruwa. According to this witness the defendants had, between themselves, agreed to
meet the cost of repairs. The transporter, who is second defendant, had paid for a quotation
which Komatsu had done. It was his evidence that first defendant was not disputing liability
because it had moved the machine without plaintiff’s knowledge. On the group’s visit, which
was held in July 2005, he states that engineers from first respondent and the insurance company
went through the excavator and it was agreed that the final quotation should exclude non-
accident related damage. The cab assembly which needed to be replaced would be imported
from South Africa at second defendant’s director’s initiative. Because the plaintiff had direct
dealings with first defendant, he had pushed first defendant to make good the undertaking to foot
the repairs bill. Second defendant disputed liability as early as April 2005 blaming the accident
on first defendant.
Komatsu required a 50% down payment before it began repairs. From January 2005 to
September 2005 the witness said that he was pushing first defendant to ensure that the repairs
were carried out. Throughout this period he dealt with one Murungweni of first defendant.
Although he occasionally spoke with Mbona, he was mostly referred back to Murungweni.
Murungweni for his part repeatedly assured him that first defendant would meet the cost of
repairs as well as loss of income suffered by the plaintiff. Since there was no progress the
plaintiff arranged to meet the permanent secretary in the Ministry of Agriculture under which the
first defendant fell. First defendant had no board of directors at the time. That meeting with the
permanent secretary led to a convening of another meeting held on 6 September 2005 chaired by
Zirebwa. According to Bonde, in this meeting, first defendant agreed to share equally the cost of
repairs to the excavator with the second defendant. This, according to the witness, correctly
summed up the defendant’s liability for the repairs to the excavator.
As for the loss of income by the plaintiff, the witness explained how the meeting
discussed it. He made the presentation in which he used a spreadsheet demonstrating how he
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arrived at the figures he presented to the meeting. However, one of the engineers present argued
that plaintiff was not entitled to claim for 24 hours a day since some of the costs were in fact, not
incurred. Zirebwa suggested that the defendants can pay according to government rates which
stipulated 120 hours per month when the equipment was on standby. Plaintiff insisted on a rate
of 15hours a day. It was eventually agreed that the hours be reduced so that the defendants
would pay interest at the minimum lending rate for every 30days which the amount remained
outstanding.
Plaintiff told the court that he would each month submit claims for loss of income based on the
rates agreed in the meeting but none of the claims were honoured. Plaintiff decided to sue after
three years.
The witness told the court that in the meeting of 6 September 2005, Mbona gave the
assurance that once their insurers paid to them they would forward the cheque to him in order for
him to pay Komatsu. When he inquired how the other Z$500,000,000 would be paid he was told
that second defendant would pay. Later he received a check payment for Z$400,000,000. He
waited for the remainder but that never came. In his discussions with Mr. Matovanyika he was
advised that first defendant had no money to pay for loss of income although he acknowledged
their obligation to pay for both the repairs and loss of income.
With regards to loss off income the witness said that due to damage to equipment
plaintiff could not fulfil the Chiduku contract which involved trenching 7 km; the Romsey
contract which involved trenching 27km; the 250,000 hectares clearing in Nuanetsi which was
scheduled to take between three and four years. According to the witness plaintiff was billed to
carry out works at Hwange Colliery after the Nuanetsi ranch contract. He estimated that plaintiff
lost seven years worth of income.
It is the practice of the plaintiff not to insure the excavator until it is scheduled to be
moved. Because he had not being advised that the excavator will be transported from Middle
Sabi to Chiduku, they had not taken out insurance cover for the excavator.
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Under cross examination the witness said that they had written to first defendant in
response to an advertisement. He denied that the plaintiff was registered with the government
tender board. He also denied that plaintiff participated in the government tenders between 2003
and 2004. He stated that the letter is their contract on the basis of which the plaintiff had been
engaged by first defendant. He however said that in the hope of securing future contracts with
first defendant, the plaintiff applied to be registered on the government list. This explains why
subsequently the plaintiff’s name appears on government list. His evidence was that the relevant
terms and conditions are those that appear in the plaintiff’s letter. The contract which the parties
subsequently signed was a mere formal requirement of government. When taken to task over
clause 11 of the contract, the witness struggled to explain that had first the defendant required the
parties to abide by the provisions of the contract then the first defendant would have made
payment first before requiring plaintiff to move to Middle Sabi and would not have paid the
plaintiff prior to signature of the contract.
He maintained that the plaintiff was under no obligation to insure the excavator in transit
to Chiduku because first defendant literally stole the excavator from the plaintiff. As such, the
obligation to insure the excavator lay with first defendant. The witness flatly denied a suggestion
that he had instructed his operator, after the Christmas shut down, to proceed to Middle Sabi in
expectation of the move to Chiduku. According to him, first defendant knew that they could not
move the excavator without his knowledge and consent since first defendant had to pay
mobilization fees first. The witness maintained that the whole tenor of the September meeting
was to work out modalities of payment since at no time had the defendants disputed liability. He
never agreed to contribute to the cost of repairs. Under cross examination by second defendant’s
counsel, he maintained that in his presence Shoko had agreed to share the cost of repairs to the
excavator.
The second witness was Euzilah Bonde, a director of the plaintiff. Her evidence
corroborated the first witness regarding the formation of the contract. She had also visited the
scene of the accident where the excavator lay damaged. She told the court that despite the
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promises to pay, the first defendant did not pay. She approached the permanent secretary at the
Ministry of Agriculture since the contract provided for such a procedure. As a result of this visit
the meeting of 6 September 2005 was organized. Her evidence as to what transpired at this
meeting closely corroborates that of her husband save when she says that the issue regarding the
excavator had been settled as the secretary for agriculture had said that plaintiff will be paid in
full. What remained for discussion and resolution was how to arrive at an appropriate formula to
be used to calculate a figure that would represent the plaintiff’s loss of income.
Under cross-examination, she stated that she had approached the secretary for agriculture
for arbitration over the dispute in terms of the contract. But when it was put to her that the
conditions governing that contract were those stipulated in RDS 2/2002 she denied the
applicability of that tender document to their contract. She maintained that plaintiff was using its
contract rates. She maintained that at that time plaintiff was not registered with the government
tender board. She expected the lorry driver to ensure that the excavator load was properly
secured. The thrust of her evidence was that first defendant never disputed liability but that it did
not have the money to pay at the time.
It will be clear that both husband and wife were not sure to whether the signed contract
incorporated by reference, the tender documents RDS 2/2002 and RDS 9/2004.
Plaintiff’s final witness was Fungai Peter Kanonda the excavator operator. He told the
court that when he was at Middle Sabi he would get instructions from first defendant’s
management. At the completion of the works he left for his rural home for the annual Christmas
shut down. After Christmas his employer, the first witness, told them that the next contract was
about to come on line. He instructed the witness to proceed to Middle Sabi and await further
instructions from the first defendant. Upon arrival he was told about the arrangements to move
the excavator to the next project site. After three or four days a truck towing a low-bed trailer
arrived. On it was a light pick-up truck. They removed the pick-up truck before loading the
excavator. The move to Chiduku had just begun. According to the witness the procedure
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regarding loading an excavator was this. He would drive the excavator onto their low-bed trailer
on its own power. Once on the trailer he would disengage the excavator’s hydraulics. The truck
driver would then take over to secure the excavator using chains and tensioners. On the day
appropriate tension was applied to ensure that the chains were tight. He was satisfied that the
excavator was properly secured before they left for Chiduku. They slept over in Mutare. Early
in the morning the following day, they continued on their journey out to Chiduku. They
negotiated the Christmas Pass without incident. As they approached Magamba Training Centre,
the truck almost veered off the road. This led him to believe that the driver was dozing on and off
at the wheel. This was a left-hand drive mechanical horse. He sat on the front right side. On
approaching Chipembere, there was an on-coming truck which appeared to be straddling the
centre line. The driver panicked and swerved to the left of the road to avoid a head-on collision.
The truck veered off the road. Upon attempting to control it, the excavator fell off the trailer and
landed upside down. The fifth wheel of the trailer broke. Upon further inspection, the witness
opined that the force of the load broke the chains leaving the excavator to fall off. The tensioners
ripped off the trailer sides. Police attended the scene and recorded statements.
Under cross-examination, the witness stated that his employer instructed him that first
defendant would direct him where their next job would be. He did not expect further instructions
from Bonde nor did he expect confirmation of movement from him prior to complying with the
request to move. He disputed the claim that second defendant’s lorry driver did not secured the
excavator stating that this was the standard procedure in the industry. When pressed on whether
he was not interested in ensuring that the excavator was properly secured, he told the court to
that he observed how the excavator had been secured and was happy with the steps taken to
secure it.
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Defendant’s evidence
Zebediah Nhamoinesu Murungweni (“Murungweni”) was at that time the executive
director of the Agricultural Engineering and Farmer Support Services with the first defendant.
He explained how first defendant sought to participate, through the State Procurement Board, in
a tender which was already running at the Ministry of Transport. This tender suited the
requirements of first defendant regarding the revamping of irrigation and its rehabilitation
program. The tender was formulated on and based upon the general conditions of contract for
civil works and related infrastructure development. At that time one of the directors had
indicated to him that the plaintiff had submitted a tender for civil works on rates similar to those
offer in the Ministry of Transport tender. One of the directors entered into discussions with the
plaintiff with a view to awarding to the plaintiff the civil works at Middle Sabi, Nuanetsi and
Chiduku. These discussions resulted in the movement of equipment to Middle Sabi prior to the
drawing up of the contract. Later the plaintiff submitted a claim for site establishment in June
2004. This claim was based on the discussions with the director and was duly paid. That
payment was made before the signing of the formal contract. The witness pointed out that the
letter setting out the plaintiff’s conditions may have been received but it was not the basis of the
contract. The parties proceeded on the basis of the discussions which were later reduced to
writing and signed by the parties.
In terms of the contract it is the obligation of the contractor to insure his equipment and
staff throughout the duration of the contract. In this regard the contractor takes out an all risk
insurance policy cover so as to ensure continuity of provision of service. This clause in the
contract, he said, was to protect public interest. According to the witness after completion of the
Middle Sabi project, the next project was at Chiduku. In this regard plaintiff was advised of the
need to move the excavator from the old site to Chiduku after the Christmas shut down. Plaintiff
was therefore required to make appropriate arrangements. Plaintiff submitted its pro forma
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invoice for that movement. The plaintiff’s costs were high. They discussed a proposal that
would help reduce costs. The proposal involved first defendant providing transport for the
excavator. In this regard first defendant hired second defendant to pull first defendant’s low-bed
trailer. Plaintiff’s staff would load the excavator onto their low-bed trailer. Mr. Bonde agreed to
the proposal. He sent his team back to Middle Sabi from Christmas vacation in readiness for the
movement.
The accident occured during the movement from Middle Sabi to Chiduku. After the
accident, he advised the parties involved that there was needed to separate the accident damaged
costs from those caused by wear and tear. He organized a team of representatives from the
parties concerned to carry out this task. This considerably reduced the amount quoted for the
repairs. He emphasized throughout that this was part of the ethical considerations of getting the
equipment back on the road so as to get the job done and not as an admission of liability. In the
discussion that followed the plaintiff, first and second defendant undertook to contribute towards
the repair costs of the excavator. At this stage no party had accepted liability. Everyone was
working towards getting the machine to work again. The arrangement was that the initial
quotation of Z$929,000,000 would be split equally between both defendants. There was an
escalation clause in the quotation. Plaintiff would pick that tab. The witness said that there was
another substantially lower quotation but the plaintiff and Komatsu insisted that no second hand
parts were to be used to repair the excavator. In terms of engineering ethics of contract
management, one endeavours to get the job done he said. However they could not force terms
on the plaintiff or its choice as to who repaired the excavator.
Subsequently the permanent secretary in the Ministry of Agriculture telephoned him after
a visit by a plaintiff’s second witness. This communication resulted in the meeting of the 6 th of
September 2005. The purpose of the meeting was to look into plaintiffs’ claims and come up
with the recommendations to be made to first defendant. The meeting came up with
recommendations which were presented to first respondent. One of the key recommendations
considered the entitlements to the contractor when his equipment was in working order but no
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assignment is given. First defendant’s position was that the contract was being administered on
the basis of the general conditions of contract signed by the parties where it would insist that a
contractor had insured its equipment in such a way that first defendant had no liability for
damage to equipment or plaintiff’s staff. The meeting of 6 September 2005 was held by
technocrats dealing with the contract administration. The question of liability arose during the
discussion.
Under cross-examination he maintained that he was involved in the initial discussions
leading to plaintiff’s engagement. The witness steadfastly maintained that that the advertisement
which plaintiff responded to involved providing general services for rehabilitation required by
first defendant. Plaintiff’s witnesses had approached first defendant personally. They gave first
defendant the impression that plaintiff was listed on the government tender board. The witness
told the court that prior to plaintiff’s engagement, when the conditions of contracting were being
discussed, the plaintiff’s witnesses showed interests and willingness to abide by the conditions
set out under the general conditions of the government tender which included the administrative
mechanisms of the contract. In his discussions with Mr. Bonde, the witness said that he had
encouraged him to buy a copy of RDS 2 of 2002 and familiarize himself with it. The thrust of
his evidence under cross-examination was that first defendant had work to be done. Because of
their Christmas shut down, processing of payments was delayed. In discussions with Mr. Bonde
it was agreed that the excavator be moved using first defendant’s resources. Plaintiff was aware
of the move to Chiduku and had consented to the movement of the excavator in terms suggested
by the witness. After the signature of the contract in July 2005 he again asked the plaintiff to
familiarize themselves with the government tender board RDS 2 of 2002 upon which the contract
was predicated. In the spirit of an ethical administration of the contract, the witness said that both
defendants agreed to pay for the costs of repairs to the excavator but at no stage was liability
accepted or admitted.
Willard Tendayi Mbona was the Head of Corporate Services with first defendant at the
time. He confirmed and corroborated the evidence of Murungweni especially regarding the
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claims for the cost of repairs. He wrote the letter to plaintiff in which he expressly stated that
any payment was on a “without prejudice” basis. He processed two payments of Z$25,000,000
each and one of Z$400,000,000 towards the repairs to the excavator. According to him, first
defendant wanted its Chiduku project to proceed hence it was willing to assist plaintiff in the
repair of his equipment. In one meeting, the plaintiff’s directors had undertaken to negotiate
with Komatsu so that the quotation is capped at Z$900,000,000. In this regard, he had asked for
the cheque to be written in his name. When the minutes of the meeting in which he had made
the request were ready for signature, he asked Mr. Bonde to come and sign but the latter did not.
He confirmed that first defendant never admitted liability. Plaintiff’s cross-examination of this
witness was aimed at showing that first defendant had admitted liability hence it had made
certain payments. The witness explained that payments made by first defendant followed claims
it had made under its own insurance cover for goods-in-transit because the damage was
occasioned to the excavator while on transit on its low-bed trailer to Chiduku. He insisted that
first defendant at no stage admitted liability.
Second defendant’s director, Dennis Shoko confirmed that first defendant contracted it to
move the excavator from Middle Sabi to Chiduku. Since second defendant had no low-bed
trailer, it used first defendant’s. Upon receiving the news of the accident involving his
mechanical horse, he had visited the scene and arranged to move the excavator to Komatsu in
Ruwa. At that stage he believed the excavator belonged to the first defendant. When they
received a letter from first defendant demanding contribution to the cost of repairs, he had denied
all liability. However he told the court that in an effort to save costs and to provide a service to
first defendant, its biggest client, he had sourced for a cheaper quotation from Granite
Earthmovers. He had also indicated his company’s willingness to freight a second-hand cab
assembly for the excavator from South Africa. But plaintiff insisted that his machine be repaired
by Komatsu who would not accept second hand spares parts.
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Under cross-examination the witness insisted that his driver secured the load properly.
The chains used to secure it had broken resulting in the excavator falling off the trailer. He
denied negligence on the part of his driver.
Darlington Mandiringa drove the second defendant’s truck on the fateful day. It was
pulling first defendant’s low-bed trailer. According to this witness, the plaintiff’s operator
loaded the excavator onto the flatbed trailer. He and that operator secured the excavator with the
assistance of others who were present. As is usual in the industry, chains were used to safely
secure the excavator. In the accident his view was that the weight of the excavator broke the
chains. This was in spite of the fact that they had used additional chains provided by the
operator. The low-bed trailer comes with its chains. Because he was not familiar with the
Komatsu excavator he sought assistance from the operator to secure the excavator. Generally, he
accepted that it is part of the driver’s duty to secure a payload. As to how the accident had
occurred, he told the court that there was an on-coming lowering straddling the centre line. In
order to avoid an imminent head-on collision, he had to swerve to the left. This action caused
the load to tip the trailer over. The chains broke and the excavator fell off the trailer.
Plaintiff claims against the first defendant under several heads. The main claim for Z$16
321 929 962, 00 (which was later amended) is based on an agreement between it and first
defendant made on or about the 9th of September 2005. The claim against second defendant also
arises from the same agreement. Alternatively, the plaintiff seeks from second defendant the
sum of Z$23,443,695,925, 00 as damages suffered by the plaintiff due to its employee’s
negligence. Alternatively, from first defendant the sum of Z$23, 443, 695,925, 00 in terms of an
agreement made with plaintiff on or about 9 September 2005. Alternatively being a claim for
damages arising from the breach of an agreement made entered into with first defendant on or
about December 2005, or, alternatively arising from the negligence of the first defendant’s
employees. In the final alternative, plaintiff claims Z$33, 04 billion from both defendants jointly
and severally for damages suffered the plaintiff due to the negligence of the defendants’
employees.
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In its Declaration the facts are set out as follows.
“4 In December 2004 the plaintiff completed an excavation contract for first
defendant at Middle Sabi and was then contracted to carry out further excavations
Chiduku whereupon the plaintiff gave first defendant possession, custody and
control of its excavator for the purposes of having it transported to Chiduku.
5 In January 2005 first defendant engaged the services of second defendant for
reward to transport the excavator to Chiduku using a trailer provided by first
defendant.
6 In the course of the journey to Chiduku second defendant’s vehicle which was
being driven by an employee of second defendant acting within the course and
scope of his employment left the road causing the excavator to fall off the trailer.
7....................
8 On or about 9 September 2005 defendants agreed to pay the loss suffered by the
plaintiff in equal shares alternatively first defendant agreed to bear the full loss
suffered by plaintiff.”
The declaration goes on to aver that should the court find that there was no
agreement, then it should find that the accident was caused by the negligence of second
defendant’s employee was negligent in one or more of the following ways;
(a) The driver failed to ensure that the excavator was properly secured;
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(b) The driver was travelling at a speed excessive in the circumstance;
(c) The driver failed to keep the motor vehicle under proper control.
The second alternative was pleaded thus; it was an implied term of the agreement
between the plaintiff and first defendant that the excavator will be returned in an undamaged
condition. First defendant breached the agreement as it failed to return the excavator in an
undamaged condition. It states that at time of entering into the contract, plaintiff and first
defendant were aware of the following; (a) that plaintiff needed the excavator in the performance
of its contracts and; (b) if the excavator was so damaged as to render it unfit for use plaintiff
would be an able to perform its contracts and would suffer loss of income as a result.
Accordingly, first defendant is liable for the full loss suffered.
The third alternative was framed as follows; when 1 st defendant’s employees loaded the
excavator they knew, or ought to have known, that the plaintiff required the excavator for the
purpose of performing its contracts and that if it was not properly secured it could fall off the
trailer and rendered unfit for use resulting in plaintiff suffering loss of income. The final
alternative was based on the averment that the incident was caused by the negligence of both the
defendants’ employees acting within the course and scope of their employment. At all times, the
employees knew, or ought to have known, that the excavator was required by the plaintiff in the
performance of its contracts and that if it fell off the trailer it could be rendered unfit for use, in
which event plaintiff would suffer loss of income.
It is clear from the above that plaintiff sued principally in contract and alternatively under
the Aquilian action. I say in contract because the plaintiff relies on an alleged agreement it
entered into with first defendant as the basis upon which it says it had given first defendant
possession, custody and control of its excavator for conveyance to Chiduku. Plaintiff further
relies on the agreement of 9 September 2005 with the defendants wherein it says the defendants
agreed to bear the loss suffered by the plaintiff in equal shares or alternatively that first
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defendant agreed to pay the full loss suffered by plaintiff. The alternative claim is framed under
the Aquilian action.
In my view the issues to be decided are;
(a) Whether the defendants agreed to bear the plaintiff’s loss?
(b) Which contract governed the relationship between the plaintiff and first defendant?
(c) Was first defendant’s conduct towards plaintiff negligent regarding the manner in
which the excavator was transported?
(d) Was second defendant’s conduct towards the plaintiff negligent regarding the manner
in which the excavator was transported?
(e) If negligence towards the plaintiff is proved, what is the quantum of the plaintiff’s
damages?
The resolution of these issues will dispose of this matter.
(a) Whether both the defendants of the first defendant agreed to bear the plaintiffs’ loss
Plaintiff’s director’s evidence was that first defendant agrees to meet the costs of the repairs
to the damaged excavator. To this end Bonde told the court that by the time the parties visited
Komatsu premises in order to inspect and exclude non-accident damage, the defendants had
agreed between themselves to foot the bill for the repairs. He points to the fact that the plaintiff,
to first defendant’s knowledge had not consented to the movement of the excavator from Middle
Sabi to Chiduku; as well as that second defendant had moved the excavator from the accident
scene to Komatsu in Ruwa. Further the plaintiff says second defendant obtained a quotation for
the damage which was lower than the Komatsu quotation. This shows that the defendants had
agreed to pay for cost of repairs to the excavator. Bonde relied on the assurances given by
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Murungweni that they would meet the cost of repairs. Further, his nominee assembled the team
which went to Komatsu to assess accident-related damages to the excavator. Why else would he
do that unless they admitted liability?
According to plaintiff, the September 2005 meeting was to quantify the loss of income
and to confirm that first defendant will repair the excavator. Mrs. Bonde told the court that the
purpose of this meeting was to determine the loss of income. The issue of repairs and had been
settled. On the other hand defendants’ evidence was that that the September meeting was to
make recommendations regarding recommendations to be made to first defendant’s board. The
recommendations of this meeting were however not binding on first defendant. First defendant
relies on the minutes of that meeting which reflect that no agreement was reached in the terms
suggested by the plaintiff.
It is trite that he who alleges must prove. The onus to prove the existence of an
agreement by the defendants to bear the costs of repairs lay with the plaintiff. Plaintiff relied on
an oral agreement the terms of which were not clear. It is important to decide whether the parties
to such an agreement as alleged by the plaintiff had the capacity to contract or at least, bind their
respective principals. The director in a husband and wife company, such as the plaintiff, can
without any formalities, generally, bind such a company by his conduct. On the other hand, a
company in the mould of first respondent would require more formalities before it can be bound
by the acts of its employees. An agreement, in the ordinary meaning of the word, denotes the act
or fact of agreeing; an arrangement as to the course of action. At law an agreement is the
contract duly executed and legally binding. An instrument embodying such a contract would be
termed the agreement. An agreement therefore can be defined as a negotiated and usually legally
enforceable understanding between two or more legally competent parties. Although the binding
contract can, and often does, result from an agreement, an agreement typically documents the
give and take of a negotiated settlement and the contract specifies the minimum acceptable
standard of performance.
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Therefore when the parties file a joint pre-trial conference minute in which one of the
issues is whether the defendants agreed to pay the plaintiffs damages such an agreement must be
understood in the above sense, that is, whether a legally binding understanding was reached by
the parties that both defendants would meet the cost of repairs to plaintiff’s excavator.
First defendant is a much larger company, commonly referred to as a parastatal, by virtue
of its funding by the state. First defendant is established by the Agricultural and Rural
Development Authority Act, [Chapter 18:01] (“the Act”). The functions, duties and the powers
of the authority are set out in part three of the Act. Sec 21 provides for the limitations of
functions and powers of the authority. Section 34 of the Act sets out the limitation of liability of
the authority in the following terms;
“34. EXEMPTION FROM LIABILITY
No liability shall attach to the majority or to any member of the board or any committee
of the board for any loss damage sustained by any person as a result of the bona fide
exercise or performance by the Board, or a committee thereof, or by any employee or
agent of the authority of any power conferred upon the authority by this act;
Provided that this section shall not be construed as to prevent any person from recovering
by action in any competent court compensation for any loss or damage sustained by him
which was caused by negligence or breach of contract.”
The section permits the type of action brought by the plaintiff which, as pointed out
above, is based on breach of contract or negligence. In other words the first defendant is liable at
law, like any other company (or person) under the Aquilian action, if such liability is proved in
the normal way.
In order to establish a contract with a juristic person, the party alleging that contract must
prove that the person concluding the contract is authorized by the company to do so. Plaintiff
relies on the agreement it alleges was concluded on 9 September 2005. I have no doubt that the
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reference to 9 September is meant to refer to 6 September 2005. The parties are not agreed as to
the purpose of this meeting. Plaintiff states that the meeting was convened in order to find a
formula to be used to quantify loss of income. First defendant, on the other hand, states that it
was convened in order to make recommendations to first respondent regarding plaintiff’s claim.
Plaintiff’s position was that because it held the defendants liable for the damage to its
excavator, it was entitled to claim for idle time as if the excavator was available. On the other
hand first defendant felt that the contract signed by the parties should be the basis for any
compensation which plaintiff could claim. In terms of the contract signed by the parties in July
2005 their relationship was to be governed by the provisions of the government tender board as
read with circular number RDS 2/2002 which regulated the hire of equipment. In the event, first
defendant held the view that plaintiff’s rights required legal advice. In this regard the meeting
was briefed about the provisions of tender secular number RDS 9 of 2004 which, first the
defendant advised, governed the contract between the parties. The minutes of that meeting
record that the meeting recommended to abide by the guidelines set out in circular number RDS
9 of 2004. Bonde, on the other hand, it is recorded, insisted that plaintiff’s claims be assessed on
the basis of at least 6 hours a day rather than 4 hours offered by first defendant. In my view, there
is no better indication of lack of consensus despite plaintiff’s claims to the contrary.
These recommendations were to be presented to first defendant for approval upon receipt
of the detailed the claim by the plaintiff. This, to my mind, does not suggest any meeting of the
minds such as to conclude that an agreement was reached in the meeting regarding the question
of liability by either first or both defendants.
Even on the plaintiff’s version, it is only Murungweni who gave him the impression that first
defendant would meet the cost of repairs. On plaintiff’s version, it had to seek the intervention
of the permanent secretary responsible for first defendant to get settlement on its claims. The
permanent secretary did not commit first defendant to accept liability but to inquire into the
question of whether first defendant could meet plaintiffs’ claims. Again I do not find any basis
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to infer that by this conduct plaintiff was led to alter its position to its detriment because it was
clear that plaintiff was not admitting liability. There was no question of acceptance of liability in
light of the conditional payments accepted from first defendant by plaintiff. A body corporate
can only act through its agents. The authority of such agents to bind the principal can be
ascertained as a matter of fact where such agents, for instance, commit their principals in writing.
Had first defendant agreed to pay the best indication for such agreement would have been some
written instrument to that effect. I did not hear the plaintiff to say such a commitment existed in
writing. On the contrary, first defendant pointed out that how payments made to plaintiff where
captioned “without prejudice.” In the absence of such a written undertaking to foot the plaintiff’s
cost of the repairs, the matter becomes one of plaintiff’s word against that of the first defendant.
Proof of such agreement as plaintiff seeks this court to find, requires a high burden of proof on
the plaintiff’s part before plaintiff can succeed in showing that an oral agreement existed
between it and first defendant. On the evidence before me I am unable to find that such onus has
been discharged. Therefore, regarding the first issue whether the defendants agreed to pay for the
cost of repairs to the plaintiff’s excavator, plaintiff fails.
Plaintiff and first defendant of both agreed that second defendant did not attend the meeting
of 6 September 2005. The evidence is that second defendant had been invited to attend the
meeting but did not do so. There is therefore be no basis of finding that second defendant
became part of an agreement arrived at in that meeting, if any such agreement is found to exist.
As I pointed out, there is no evidence that there was agreement regarding defendant’s liability.
(b) Which contract governed the relationship of the parties?
Plaintiff urged the court to find that it was an implied term of the agreement between it and
first defendant that first defendant will return the excavator in an undamaged condition. In
breach of the implied term of such agreement, first defendant failed to return the excavator in an
undamaged condition. Implicit in this pleading is the existence of an implied agreement between
plaintiff and first defendant. The evidence shows that plaintiff pleaded its case on the basis that
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first defendant contracted it on terms set out in its contract. Plaintiff’s contract is page one of
plaintiff’s bundle of documents. It takes the form of a letter addressed to first defendant’s chief
executive dated May 2004. It is described as “Letter dated 28 May 2004 from Plaintiff to first
defendant.”
Clearly, this letter cannot by any stretch of imagination, be described as a contract. If there is
a contract on which the breach was pleaded, it cannot be this letter or the contract signed by the
parties on 27 July 2004. I mention this because plaintiff’s directors indicated to the court that the
parties’ relationship was not governed by the contract dated 27 July 2004; but their own contract.
This is why the meeting of 6 September 2005 failed to find consensus on what recommendations
to make to the board of first defendant.
If plaintiff had some contract of its own in mind, it should have pleaded the terms of that
contract. The plaintiff’s pleadings, in my view, show that there is beside the contract of 27 July
2005, some the other contract between the parties. Yet the evidence clearly shows that the only
written contract between them governing their business relationship is that which the parties
signed on 27 July 2005. The contract at page 2 to 6 of the plaintiff’s bundle of documents
formed the entire contract. By reference it incorporated the tender circular number RDS 2/2002
and RSD 9/2004. Critical to the determination of the issues before this court is clause 11 of that
contract. This clause spells out the party responsible for insurance. It provides that contractor’s
staff and equipment shall be insured at the contractor’s expense. It goes on to state that in the
events of negligent handling of client’s equipment, by the contractor, the contractor will be
responsible for the replacement or repair of the damaged equipment. Plaintiff is termed
“contractor” and first defendant as “client” in the contract. First defendant’s case was that the
contractor was required, in terms of the contract, to take out an all risk cover for its equipment
and staff for the duration of the contract. Plaintiff, on the other hand, urged the court to find that
it was under no obligation to ensure its excavator unless it was in transit. The reason for this was
that there was no risk once the excavator is on site. Again plaintiff’s contract does not reflect
such a term nor was there any evidence led to show that this was the practice in the industry. In
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any event experience teaches that it is within ordinary human experience for accidents to occur at
work. Therefore, the reasonableness of that clause pleaded by the first defendant in the contract
cannot be doubted since it covers all situations. The more practical and reasonable approach to
adapt regarding plant and machinery is to have an all risk cover for the life of the plant and
equipment.
In light of the above I find that the terms governing the relationship is the contract dated 27
July 2004 in terms of which plaintiff was obliged to take out an old risk cover insurance policy
for the duration of the contract.
(c) and (d) Whether the employees of either both or first defendant were negligent regarding
the transportation of the excavator?
The requirements of an Aquilian action are well known. These are;
(i) There must be some conduct on the defendant’s part (that is an act or omission)
which the law of delict recognizes as being wrongful or unlawful;
(ii) The conduct must have led either to physical harm to person or property and
thereby financial loss, or have caused purely financial loss which does not stem
from any physical harm to person or property (the so-called patrimonial loss
requirement)
(iii) And the defendant must serve inflicted the patrimonial loss intentionally or
negligently (the fault requirement);
(iv) There must be a causal link between the defendant’s conduct and the loss (the
causation the requirement).
(See G Feltoe: A Guide to the Zimbabwean Law of Delict)
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While it is not difficult to find that the first two requirements have been satisfied on the
basis that in ferrying the excavator second defendant was carrying out the mandate given by first
defendant, the enquiry into whether the damage was caused intentionally or negligently requires
closer scrutiny.
The test for negligence is always objective. Put simply, it is the failure to display the
same degree of care in avoiding the infliction of harm which the reasonable person would have
displayed in the circumstances. The question to ask is whether harm was foreseeable and the
second question is whether the reasonable person would have guarded against that harm.
I need to clarify one aspect of plaintiff’s case which was not borne out by the pleadings.
At the hearing Bonde claimed that first defendant had moved plaintiff’s excavator without its
knowledge and consent. This was the reason why Plaintiff had not insured the excavator in
transit. Had the movement been known appropriate cover would have been taken out. The
plaintiff’s operator gave evidence to the effect that plaintiff’s director advised him to proceed to
Middle Sabi soon after the Christmas vacation in anticipation of the movement of the excavator.
He needed no further confirmation before moving the excavator. This evidence confirms the
evidence given by Murungweni that he had discussed the movement of the excavator with
plaintiff’s director. The rationale was to reduce costs since no mobilization fees were available
for advance payment. Therefore, there is no support for the plaintiff’s claim that the excavator
was moved without plaintiff’s knowledge or consent. I therefore find that plaintiff consented to
the movement of the excavator to Chiduku in terms discussed with Murungweni.
The Middle Sabi contract was initiated before the contract was executed. In terms of that
contract plaintiff carried the risk on his equipment. The same assumption of risk must be made
for the movement to Chiduku. In any event the contract required that plaintiff assumed the risk.
In order to succeed under the Aquilian action, plaintiff must prove that the loss it suffered
was reasonably foreseeable in the circumstances and that a reasonable person would have taken
steps to guard against the harm and further that the defendant’s conduct was the proximate cause
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of the plaintiff’s loss. On the evidence before me this requires the plaintiff to adduce evidence
that;
(a) The excavator can only be secured in a particular way;
(b) The defendants failed or neglected to secure the excavator in that way in
circumstances where a reasonable person would seen or ought to have foreseen that
failure to secure the excavator in that way would result in fall from the trailer should
the driver swerve to avoid a head-on collision.
Alternatively, plaintiff may have to lead evidence additionally to show that:
(a) a reasonable driver driving the truck with the excavator in the circumstances should have
foreseen that swerving to avoid a head-on collision in the circumstances would result in
the excavator falling off the trailer;
(b) And that’s a reasonable driver would have taken steps to guard against the occurrence of
the need to take reasonable steps to avoid a collision.
Kanonda, the excavator operator maintained that he drove the excavator onto their low-bed
trailer and left the truck driver to secure the excavator. He was satisfied with the manner in
which the trap the driver secured the machine. Regarding the handling of the excavator the
witness evidence does not point to anyone as having been negligent. He, however, maintains
that the driver displayed signs of fatigue before the accident. By implication he suggests some
degree of negligence in the manner the driver was driving. Yet about the crucial point he also
suggests that had the driver not taken the action that he took, the on-coming truck would have
collided head-on with theirs. Evidence on what happened just before the accident is given by the
lorry driver. He is trained to secure this kind of load. He was satisfied, as was those present, that
the excavator had been properly secured. The general approach of the law in this country
regarding responsibility to ensure that a load is secured lies with the driver. (See Road Traffic
(Construction, Equipment and Use) Regulations, 1972). The truck driver gave the same
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evidence in this regard. I am therefore unable to find any negligence on his part. However there
is no indication that plaintiff explored the liability of second defendant as a public carrier. Had
such evidence of the agreement been placed before me, the court would have explored this aspect
of the case. In the absence of any pleading in this regard, I find no basis, mero motu, to carry out
an inquiry in that direction.
There is a discrepancy regarding who helped second defendant’s driver to secure the
excavator. He says the operator and the assistant helped him to secure the excavator as did first
respondents’ workers.
It seems to me that the evidence regarding negligence by the respondents’ employees
does not go beyond conjecture and therefore could not have, on the balance of probabilities,
discharged the onus upon the plaintiff. This witness’ evidence does not indicate any negligence
regarding the manner in which the excavator was secured. The evidence led by plaintiff was
directed at showing the existence of the agreement by first defendant to accept liability for
damage to its excavator and consequently loss of future income. With regard to loss of future
income, besides the spreadsheets prepared by the plaintiff no evidence, such as a contract, was
placed before the court. Plaintiff was content to rely on its word that promises of a contract at
Hwange, another at Nuanetsi existed. Further, there was no proof what contingencies had been
factored into the calculations by plaintiff, such as wear and tear of its plant and equipment, break
downs and repairs, service and down time and so on. These contingencies needed to be
discounted in the calculations for loss of future profit. In the end the court was saddled with
figures from which it was to determine future income which was lost and not earned. Nothing
was said in terms of statutory liabilities and so on.
In these circumstances I am unable to hold that the evidence placed before me proved
such loss of income as plaintiff claimed. In any event, plaintiff needed to adduce more evidence
in order to overcome the evidentiary burden regarding the causal link between the defendant’s
conduct and its loss. In short the evidence before me does not establish the case pleaded by the
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plaintiff. Second defendant is a public carrier. Plaintiff has not pleaded its case accordingly. It
may well be that certain presumptions regarding public carriers would have assisted plaintiff’s
case.
In the event, not sufficient evidence was placed before the court upon which could find
for the plaintiff. In the results there will be absolution from the instance.
Byron Venturas & Partners, legal practitioners for the plaintiff
Jakachira & Company, legal practitioners for the first defendant
Sawyer & Mkushi, legal practitioners for the second defendant