Transmedia Corporation (Pvt) LTD V Beach Consultancy Company T/a Aviation Ground Services

### Preamble
HH 162-10
HC 357/09
TRANSMEDIA CORPORATION (PVT) LTD
versus
BEACH CONSULTANCY COMPANY t/a
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TRANSMEDIA CORPORATION (PVT) LTD
versus
BEACH CONSULTANCY COMPANY t/a
AVIATION GROUND SERVICES

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 13 June 2009 and 15 June and 21 July 2010

G Nyandoro, for the plaintiff
K Ncube, for the defendant

Civil Trial

BHUNU J: The defendant is a cargo handling company which is in the business of handling airline cargo whereas the plaintiff is one of its customers. Most issues in this case are common cause. The undisputed facts are that on 3 March 2008 a shipment of the plaintiff arrived on board Martnair at the defendant’s premises at the Harare International Airport. The consignment comprised electrical goods and equipment valued at US$44 202-50 and was duly stored in defendant’s warehouse.

As at 8 March 2008 the consignment was in the defendant’s warehouse pending clearance and subsequent collection by the plaintiff. The consignment was however found missing when the plaintiff went to collect it on 14 April 2008.

The plaintiff is now demanding payment of US$44 242-50 being the value of the goods lost plus costs of suit alleging that the defendant’s employees were grossly negligent in causing the loss. The defendant denied that its employees were negligent in the manner alleged or at all.

The issues for determination as defined at the pretrial conference are:

1. On what legal basis is the defendant liable to the plaintiff?
2. Did the defendant exercise reasonable care while the consignment was in its custody?
3. Is the defendant liable for the loss of the consignment and if so is the defendant liable to the plaintiff for compensation in the amount claimed?
 Ms Florence Sigudu Matambo the plaintiff’s executive director gave evidence for the plaintiff. She confirmed that the defendant received its consignment of electrical goods valued at US$44 202-50 comprising transistor spares for radio transmitters for the whole country. As proof of the value of the consignment she pointed to the invoice attached to the summons. She also relied on the airway bill which they received from the defendant for purposes of customs clearance to enable them to clear the goods before collecting them from the defendant.

She further confirmed that when they went to collect the consignment after clearing the goods with customs the consignment was found missing. On 14 April 2008 the defendant wrote to them confirming that the consignment was definitely received but was now missing from their warehouse. The letter reads:

“Dear Sir,

MISSING SHIPMENT 129-3963-9165 EXMP8317-030308

Reference is made to the above captioned subject and our numerous telephone conversations. Please be advised that the state of affairs on the said matter remains as was from the time your organization intended to collect shipment after customs formalities

Shipment arrived on board Martinair on 3 March 2008 and was stored in the warehouse as per normal procedures. On 8 March a monthly bay check was conducted as per procedures information on paper indicates that shipment was indeed still in the warehouse pending customs clearance and subsequent collection.

It was after clearance that shipment was discovered missing. All efforts to locate same have proved negative and how it mysteriously disappeared from the warehouse still remains an unsolved puzzle to this day.

We sincerely regret the inconveniencies rendered to your organization as a result of this mishap and want to assure you that an act of this magnitude will not repeat itself in the future.” (my emphasis).

The defendant’s apology and assurance that such a loss will never occur again amounts to an admission of guilty and that it was within its power to avoid the loss.

Apparently having accepted responsibility the defendant wrote to their insurers seeking compensation for the plaintiff. On 3 September the defendant wrote to the plaintiff advising that its insurers had refused to compensate the applicant. The letter reads.

“Dear Sir/Madam
 Re: CLAIM FOR MISSING SHIPMENT

Please be advised that our insurers, AON Zimbabwe (Pvt) Ltd have advised us that they are not in a position to meet the claim for your missing shipment. We have a warehouse liability Policy and the claim falls outside the scope of this policy. The shipment is not claimable as it falls under the ‘unexplained or unaccounted, mysterious disappearance’ category. Written correspondence from AON Zimbabwe (Pvt) Ltd is attached for ease of reference.”

It is only after the defendant’s insurers had declined to compensate the loss that the defendant started to deny responsibility. It is clear however, that the plaintiff had no contract with the defendant’s insurers. The defendant’s liability depended on its own culpability regardless of whether or not their insurers had honoured their claim for compensation.

Ms Matambo insisted in her evidence that the defendant owed the plaintiff a duty of care. Its liability therefore flowed from its breach of the duty of care. The defendant having accepted responsibility for the safe custody of the consignment it obviously had a duty of care towards the plaintiff. That being the case, it had the obligation to account to the plaintiff for the whereabouts or fate of the consignment while it was under its custody. It also had the same obligation towards its insurers yet when asked to account for the whereabouts of the consignment by both parties the best the defendant could say was that it did not know as the consignment had suffered a mysterious disappearance.

That explanation falls far too short of discharging the duty of accounting for the property to both its insurers and the plaintiff. The insurers can hardly be faulted for refusing to indemnify the defendant when it was unable to account for the property. Likewise the plaintiff was entitled to claim compensation in the absence of a reasonable explanation of what had happened to the consignment

In the ordinary human experience guarded property in a warehouse does not simply mysteriously disappear into thin air without someone being negligent. There is therefore a presumption that the defendant and its employees were negligent. The adage res ipsa loquita, that is to say, the facts speak for themselves applies.

That being the case the defendant bore the onus of proving that it was not negligent as alleged or at all. The defendant and its employees’ explanation however fell far too short of discharging that onus because all what they could say is that the consignment which it was their duty to safeguard suffered mysterious disappearance. That defence in my view amounts to a bear denial.


There is equally no merit in the defendant’s partial defence to the effect that the plaintiff’s failure to declare the value of the cargo so that it could have taken extra care of the property upon payment of an extra charge amounted to contributory negligence. That argument does not wash because the defendant was presented with the necessary invoices and way bill showing the value of the property before it assumed the duty of care over the property.

It therefore took responsibility of the consignment well knowing its value. Having voluntarily assumed risk over the care of the property well knowing its value it cannot therefore attribute contributory negligence to anyone. Volenti non fit Injuria, that is to say, one cannot be heard to complain where he has consented to the harm being done. Voluntary assumption of risk amounts to liability when the obligation is not properly discharged.

As regards the value of the lost property the plaintiff established beyond question through relevant invoices and way bill that the missing property was valued at US$44 202-50.

In the result the plaintiff’s claim can only succeed. It is accordingly ordered that:

1. The defendant be and is hereby ordered to pay the plaintiff the sum of US$44 202-50 (Forty four thousand two hundred and two United States Dollars being damages for the plaintiff’s lost consignment.

2. The defendant be and is hereby ordered to pay costs of suit.

Musunga and Associates, plaintiff’s legal practitioners.
Gill Godlonton & Gerrans, defendant’s legal practitioners
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