Kainet Moyo v Petrotrade

### Preamble
1
HMA 31-25
HCMSC 289-20
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KAINET MOYO

versus

PETROTRADE

HIGH COURT OF ZIMBABWE

ZISENGWE J

MASVINGO 6, 11,24 February,25 & 25 May 2025

Judgement delivered on 27 October 2025

Civil Trial

M. Muguti, for the Plaintiff

J. Mutonono, for the Defendant

ZISENGWE J. 	This claim for delictual damages arises from a rather unusual set of circumstances.  The plaintiff seeks to recover from the defendant damages in the sum of US$ 10 000 (or its equivalent in local currency calculated at the official interbank rate) stemming from the defendant company’s failure to timeously remove its structures and paraphernalia from his vacant commercial stand.  The plaintiff avers that as a consequence of such failure he could not fully or meaningfully utilise his stand and as a result he suffered economic loss.

The plaintiff and the defendant company purchased adjacent commercial stands in the city of Masvingo along the Masvingo- Harare Highway.  Whereas the plaintiff purchased, from the city of Masvingo stand No. 28710, the defendant purchased stand No. 27809.  The defendant is a government parastatal involved in the petroleum business.  It intended to erect a service station on its stand.

Initially the plaintiff averred in his declaration that due to an error on its part the defendant proceeded to excavate pits for the installation of subterranean fuel storage tanks on his (i.e., plaintiff’s) stand.  It also proceeded erect other petrol portal complete with a roof as well as two huge complete pillars.

Further, according to the plaintiff when he discovered the error, he engaged the defendant with a view to an amicable resolution of the matter which culminated in a swop agreement, i.e. an exchange of the stands between the parties. One of the key features of the agreement, according to the plaintiff, was that the defendant would take over and pay the sum of money which the plaintiff still owed the city of Masvingo.  This was in the sum of US$ 14 000.

According to plaintiff the intended swop received the nod of the City of Masvingo subject to the payment of the US$14 000 which was the outstanding amount on the plaintiff’s account in relation to his stand.  What was left was the consummation of the agreement.  It is the plaintiff’s case that the defendant inexplicably and without any just cause reneged from the swop agreement citing the withholding of the requisite approval by the local authority.  He asserts that as a matter of fact the city council had no qualms with the conceived swop agreement and that the defendant only used the purported withholding of approval as a subterfuge to renege from the agreement.

According to plaintiff to add insult to injury, in the wake of it reneging on the swop agreement, the defendant neglected to demolish its structures on his stand but instead commenced in earnest to construct its fuel station on its stand.  Further, he avers that the defendant in the interim continued to use his stand by leaving its paraphernalia thereon much to his detriment.

The essence of the plaintiff’s claim is therefore captured in paragraphs 11 and 13 of his declaration which is to the effect that during a period spanning over 10 years the defendant failed to remove its illegal structures from his stand, causing him to fail to utilise his stand with the consequence that he lost out on potential business opportunities. He therefore claims damages arising from denial of the full enjoyment of his stand and the lost business opportunities that would have naturally accrued to him but for the defendant’s intransigent conduct.

In his further particulars supplied at the behest of the defendant, the plaintiff explained, inter alia how the defendant’s structures ended up in his stand.  The sum total of which was that this was a consequence of the redesigning of the boundaries by the city council. He clarified that that the Defendant had previously due to an error on its part and in violation of the Ministry of Transport Regulations which required that one should observe a distance of 70 metres from the centre of any high way road when constructing any structures, which the defendant had failed to do.  The defendant erected a petrol port complete with a building for a convenience shop and two pits for purposes of housing fuel tanks.

To compel compliance, the City of Masvingo being the governing authority for Masvingo had to redraw the stand distribution map to regularize these anomalies and consequently the Plaintiff ended up being allocated Stand No. 27810 which incorporated part of the area where the defendant had built its petrol port and dug fuel pits.   Resultantly and in an endeavour to correct matters, the parties whose commercial stands were adjacent and were of similar size agreed to swap their respective stands rather than to demolish the costly buildings that defendant had erected giving rise to the swop Agreement that the parties the entered into.

Further, the plaintiff averred in his further particulars that the defendant only demolished its structures on his stand well after the institution of summons in the present matter.

Defendant’s plea

The defendant completely denied any liability whatsoever.  It averred that when the plaintiff purchased the stand in question, he was aware that there were structures on it which it (i.e., defendant had erected.  It was averred on its behalf that the defendant initially purchased stand No. 27431 from Masvingo City Council and proceeded to construct the structures complained of.

According to the defendant that initial agreement of sale was cancelled on account of the stand being too close to the main road.  It was then that the area was resurveyed and the council came up with new stands including stands 27809 and 27810.

It was further averred in this regard that when the plaintiff purchased Stand No 27810 he was aware that part of initially fell under stand purchased by defendant before the re-surveying.

More importantly, the defendant averred that it reneged on the swop agreement but that it did so when it was advised by council that it could not proceed to complete the construction of its earlier structures.

The defendant further averred that it had no obligation to demolish the structures but nonetheless proceeded to do so.  It further challenged the plaintiff to prove that he suffered damages, which according to it he did not.

The issues that were referred to trial were captured in the Pre-trial conference memorandum as follows:

Whether or not the defendant is liable for damages as claimed by the plaintiff and the quantum thereof.

Whether or not the plaintiff is entitled to rentals in the sum of US$500 or the equivalent thereof from 01/09/20 to date of defendant’s removal of its illegal structure from Stand No. 27810 Masvingo.

Whether or not the defendant’s failure to remove its permanent structures and construction equipment on Stand No. 27810 for more than 13 years prejudiced the plaintiff.

The claim for US$500/Month as rentals was withdrawn at the commencement of the trial after it was pointed out to the plaintiff that this claim was not legally tenable.

The evidence

Two witnesses testified for the plaintiff’s case, namely the plaintiff himself and his former manager Simon Nsombi.  The defendant on the other hand led evidence from its current Administration Manager responsible for properties, Kudzanai Purazeni.  What follows is a synopsis of the evidence of each of the witnesses.

The plaintiff’s Kainet Moyo

The thrust of his evidence was that he was seeking to recover delictual damages from the defendant for its failure to demolish its structures from his stand.  It was his evidence that sometime in 2015 he received a phone call from the defendant suggesting that they enter into a swop agreement in respect of the two stands while simultaneously conceding having inconvenienced him by its (i.e., defendant’s) failure to demolish its structures on the plaintiffs stand.  According to him the person with whom he spoke intimated that the defendant was prepared to compensate him for the delay in demolishing its structures.

A meeting was soon organised which was held in Mvuma in September 2015.  It was at that meeting that the mooted swoop agreement was fashioned out.  According to him, the question of compensation was central to those discussions and after that deliberations it was agreed that he be compensated in the sum US$14 000.  The agreement was then reduced to writing subject to the wording relating to compensation being worded differently to conceal the fact that it was in fact compensation.  The agreement was soon reduced to writing.

As it turned out, however, that was the last meaningful engagement he had with the defendant.  Some two years later, in 2017 a certain Mr Ncube, Acting CEO of the defendant acting on behalf of the defendant informed him that the swop agreement had fallen through because Masvingo City Council had refused to approve the swop agreement. When he inquired if this had been placed in writing, the answer was in the negative.

His enquiries with Masvingo City Council however revealed the very opposite.  According to him, when he proceeded to the Council offices to make inquiries, he was informed council had no quarrel with the intended swop.  He then obtained written confirmation of that position.  Further he was alerted by an employee of the Council that the defendant had in fact submitted building plans and was already constructing a Service Station on its stand.  When he proceeded to the stand he confirmed this to be the case.

When he proceeded to his own stand, he was disappointed to find the defendant’s equipment and paraphernalia strewn across his stand.  It was at that stage that he realised that the defendant had reneged on the swop agreement. Through his legal practitioners Chigariro and Partners he then wrote a letter of demand to the defendant.  The letter is dated 17 September 2018.  It not only pointed out that the excuse for repudiating the contract was a mere façade as the council never turned it down but also called upon the defendant to honour its side of the bargain in implementing the terms of the swap agreement or brace itself for litigation and its attendant consequences.

Similar overtures by the plaintiff through his legal practitioners for a pacific resolution of the impasse one of which was for a round-table discussion in Zvishavane bore no fruit.

Frustrated by the stalemate he wrote a letter of demand on 20 February 2020 asking defendant to remove its fixtures from his stand. According to him that letter was ignored leaving him with no option but to institute proceedings against it by issuing summons.  According to the plaintiff upon receipt of summons the defendant surreptineously removed its structures which according to him was a case of too little, too late.

As far as the question of the justification for the award of damages is concerned, it was his evidence that although he suffered enormously on account of the failure by the defendant to timeously remove its structures from his stand, he was restricting himself to a claim of only US$10 000.

He testified that the said amount covered legal costs incurred, his travel expenses to and from South Africa and what he termed opportunity cost.  In a word he indicated that the intended project on his stand stalled on account of failure by the default out to timeously remove its structures.  In particular, he referred to an opportunity to partner SASOL of South Africa in a proposed joint business venture which fell though.  To compound matters, he had to meet costs for the contingent from SASOL’s travel and accommodation on other related expenses when they travelled from South Africa.

More importantly however, he indicated that had his partnership with SASOL taken off his financial fortunes would have risen exponentially.  He projected that by now he would have constructed about three service stations from the profits realised from the stalled project.

He categorically denied that when he purchased the stand in question he was aware that there were defendant’s structures erected on it.  He clarified this by stating that when council re-surveyed the area and came up with new stand numbers and was allocated Stand No. 27810 and when the city Council pointed out the stand in question, that is when he realised that on it were structures erected by the defendant.  He also dismissed assertions that City Council had not approved the swop agreement.

Under cross examination he classified that he had approached SASOL sometime in 2004 and that he was shown the stand in question in 2005.  He would concede therefore that when the SASOL delegation came to Zimbabwe in 2004, he had not yet been shown the stand by council and further that the expenses incurred by that delegation were unrelated to the stand.

He would also reiterate under cross examination that he only discovered that the defendant had removed its structures around November 2020 some 30 days after the issuance of the summons.

He would further admit under cross examination that initially there appeared to be a genuine desire on the part of the defendant to enter into the swop agreement.  However, it was not until 2018 that he realised that this agreement was not going to see the light of day.  He admitted that his letter of demand for the removal of the structures was only written in 2020.

He would however insist that his loss/damages should be backdated to 2005 when the repegging was done and when the stand was granted out to him by council.

He categorically disputed assertions put to him in cross-examination that his claim for loss of business was legally untenable.  He admitted though that between 2020 and now he has been unable to construct anything on the stand and further that he has not provided evidence of the income that he would otherwise have derived but for the alleged conduct of the defendant

He would however point out under cross-examination that although he did not have written memoranda in the form of business proposals etc. confirming the existence of potential business partners, this did not distract from the fact that he lost out on such business partnerships and related business opportunities.

During re-examination he pointed out that SASOL would have partnered him had defendant demolished its structures.

The evidence of Simon Nsombi

As alluded to earlier, at the material time he was employed by the plaintiff as his manager this was at a farm in Zvishavane.  He left the plaintiff’s employ in 2019.

In short he basically confirmed that on one occasion he visited the stand in question together with the plaintiff at the latter’s behest.  He observed amongst others, the following items on the stand, a shed, a petrol port covering the petrol tanks, a heap of concrete, mesh wire, heap of concrete stones, river sand, scaffolding and several other items.  He learnt from the plaintiff that these items belonged to the defendant.

It was his evidence that when he subsequently called the defendant’s offices, the Estate department thereof assured him that a company had been assigned to remove those items- but it was in that discussion that what would be the Mvuma meeting would be arranged.

His evidence regarding the meeting, at Mvuma was for all intents and purposes identical to that of the plaintiff in respect of its deliberations and outcomes.  In respect of the latter, he testified that the parties had agreed to a swop agreement and that the defendant had undertaken to pay compensation to the plaintiff in the sum of US$14 000 and that the proposed swop would be reduced to writing.

Similarly, his account on the city Councils position regarding the proposed swop matched that of the plaintiff.  He testified that the council had no issues with it and was prepared to approve it.

It was his evidence that the conduct of the defendant had negatively impacted the plaintiff who not only lost out on business opportunities but also who had sold his house in anticipation of getting into business.  As if that was not enough, he learnt from plaintiff that he had sold his house with a view to embarking on a fuel business and the valve of that money which was in Zimbabwe dollars had in the interim plummeted.

The defendant’s case: The evidence of Kudzanayi Purazeni

He is the current defendant’s administration manager responsible for properties.  He has been with the defendant for 14 years and has no personal knowledge of the genesis of the dispute.  He was however staunch in his resistance to the claim.

In his testimony he confirmed both the negotiations which took place in 2014-2015 with a view to swopping the two properties and the resultant agreement signed in 2015.  It was however his evidence that the agreement was not consummated because it was not approved by council.  He indicated that the defendant never received the letter produced by the council expressing its approval to the proposed swop agreement.

According to him defendant only received the letter of request to demolish its structures in 2020.

According to him, the reason for the Council’s refusal to approve the swop agreement was that there was a re-design by the Ministry of Transport of the highway adjacent to the properties where the road was to be dualised.  It was on that basis, therefore that the proposed swop agreement fell though.  He denied that the US$14 000 referred to by plaintiff was intended to be for compensation.  He maintained that it was merely part of the swop agreement wherein the defendant was to pay off the outstanding municipal rates the plaintiff owed to Masvingo City Council.

It was his evidence that the defendant was unable to immediately remove its structures after receiving the plaintiff’s written ultimatum owing to the COVID-19 pandemic induced national lockdown.

He therefore denied that the defendant had failed to demolish its structures within a reasonable time.  He equally denied that plaintiff had suffered any damages ostensibly as a consequence of the alleged delay by the defendant to demolition its structures from plaintiff stand.

He was particularly dismissive of plaintiff’s evidence that he has lost out on business opportunities as a result of the delay on the said demolition.  He pointed out that this is amply evidenced by the fact that the plaintiff has in the interim not started any business activities on the stand.

He has however unable to rebut that in 2018, the plaintiff had put the defendant on terms demanding the removal of its structures from the stand.  He would however reiterate under cross examination that the defendant’s failure to demolish its structures did not prejudicially affect the plaintiff in any way nor was it a barrier to the plaintiff developing his stand.

The parties filed written closing submissions excerpts of which will be interwoven in the resolution of the dispute, suffice it to say that each party maintained its position.  The plaintiff insisted that the failure by defendant to timeously demolish its structures on his stand was an actionable cause of action recognised under the law of delict.  The defendant argued to the contrary.

The issues

As I see it the resolution of this dispute requires a three-stage inquiry as follows:

Whether the law of delict recognises an action for damages arising from a failure by a defendant to remove its structures from the plaintiff’s property.  If the answer to this question is in the negative, then cadit quastio.  No liability would attach to the defendant.  However, if the answer is in the affirmative, the next question that arises is-

Whether the defendant’s in casu failed, refused or neglected to remove its structures from the plaintiff’s property-and if so for which period.

Whether the plaintiff actually suffered damages as a consequence of the failure by defendant to remove its structures from his stand and if so the quantum thereof.

Whether the claim is cognisable under the law of delict

The plaintiff’s claim undoubtedly falls under the Aquilian action.  More specifically it falls under the category of liability for pure economic loss.

The requirements for the Aquilian action are summarised by Feltoe G in his book, A guide to the Zimbabwean Law of Delict, 3rd ed 2001 at p9 as follows:

Conduct on the part of the defendant (comprising of an action or omission) which the law of delict recognises as being wrongful or unlawful - the wrongfulness requirement.

The conduct must have led to physical harm to the personal property, thereby to financial loss, or must have caused purely financial loss which does not stem from any physical harm to person or property (the so-called patrimonial loss requirement, one’s patrimony being one’s property and finances”).

The defendant must have inflicted patrimonial loss intentionally or negligently (the fault requirement); and

There must be a causal link between the conduct and the loss (the conisation requirement)

The first issue is therefore whether the requirements for liability under the aquilian action broadly speaking and under the claim for damages for conduct causing purely economic loss specifically were satisfied.

Whether there any actionable conduct on the part of the defendant.

The plaintiff insists that the defendant had an obligation to timeously remove its structures and paraphernalia from his property.  The defendant argued to the contrary.  It maintained that although it ultimately removed its structures it was under no legal obligation to do so.

The conduct complained by the plaintiff is therefore one of an omission –i.e. The failure on the part of the defendant to remove its structures.

It is firmly established that in appropriate situations damages arising from an omission are claimable.  See Mapingure v Minister of Home Affairs & Others SC 22-14, Minister of Police v Ewels 1975 (3) ST 590 AD and King v Dykes 1971 (2) RLR 151.

On the question of liability arising from an omission, Feltoe op cit at page 29 has this to say:

“Where patrimonial loss accrues as a result of harm caused by an omission as opposed to physical conduct there are special rules which apply.  In general terms, there is no delictual liability for an omission, unless in the circumstances the law recognises that there is a legal duty to take positive action to prevent harm from occurring.”

The learned author however cautions that not all moral situations amount to legal obligation to act positively.  He lists six situations where an omission leads to a legal duty namely (i)   creation of a dangerous situation (ii)assumption of control over a dangerous situation which the defendant did not create (iii) protective relationship (which includes both blood relationship, such as mother and her own child, and other relationship, such as baby-sitter and a child which she is looking after); (iv) public office or calling (e.g. a policeman; (v) statutory duty; and (vi) contract and undertaking.

However, Feltoe, op cit points out that the courts in South Africa and Zimbabwe have laid down that in a situation where there is no precedent for making the defendant liable the courts will only recognise a legal duty so as to impose liability if in that situation, not only does the omission evoke moral indignation but also the legal convictions of the community demand that the omission be regarded as wrongful and the loss should be compensated by the person who failed to act positively.

In casu I find that the moral duty reposed on the defendant to act translates, upon an objective assessment of the history of the case to a legal duty.  This is not only because the structures it had erected were of considerable value and size, according to the evidence but also that the defendant had undertaken to swop the stands but soon reneged on that undertaking.  The plaintiff was therefore in the intervening period unable to demolish the offending structures in the hope of the swop going through.

Therefore, the omission on the part of the defendant amounted to actionable conduct.

Before leaving this particular requirement, a word must be said about the requirement for liability in casu of pure economic loss. In such claims the approach of the courts has been to impose some further limiting criteria additional to the criterion of negligence.  This is because the scope of liability will be virtually limitless if no further restrictions are imposed.  In Tobacco Finance (Pvt) Ltd v ZIMNAT Insurance 1982 (1) ZLR 47 (H) the following was stated:

“…it is equally clear that not all cases of economic loss have the same potential breadth of liability; and where they do not, it seems to me Mr Andersen's submission is sound that the law does not preclude recovery for loss of a pure economic nature. The mere fact that loss is economic only, that is, it does not arise from physical injury, does not mean that it is indeterminate and unmanageable. And if, as HOEXTER, J, put it in the Greenfield Engineering Works decision, the loss is finite, there is no need to speculate on the identity of possible claimants, and it is a single loss occurring once with no multiplicity of actions likely to follow in its train, then there is no pragmatic objection to allowing the recovery of pure economic loss provided that other requirements of liability, such as foreseeability of harm, are present.

Similarly, JC Van Der Walt Delict: Principles and cases the following is stated:

“The basic requirement that the act causing the economic loss must have been wrongful efforts the most effective guarantee against too wide liability.  This requires the act to be either in infringement of a recognised right or the breach of a duty to act reasonably.  The determination of the existence of a duty in the particular circumstance provides effective control over the extent of liability.  The application of foreseeability test, either in its traditional forum or as an instrument of reason and policy ensures the possibility of flexible judicial response to the policy considerations involved in an action for the recovery of pure economic loss.  The test implies that the court must carefully balance and evaluate the interests of the parties and the social consequence of the imposition of liability in a particular type of situation.  The recognition or denial of a duty to act in the particular circumstances provides a judicial device for keeping liability within acceptable limits”

Further down on the same page, the learned author posits thus

“There must necessarily also be a breach of duty.  The determination of the standard of care requires to comply with any duty offers a further judicial opportunity to keep liability within reasonable confines”

To summarise this segment, therefore, the law of delict under the Aquilian action recognises liability for pure economic loss even it be one arising from an omission subject to the limitations highlighted above.

Whether or not defendant refused failed or neglected to remove its structures from plaintiff stand.

In applying the above criteria, it is clear that the liability, if any of the defendant cannot be said to have arisen around 2005 when the plaintiff purchased the stand in question.  The defendant’s structures only happened to be situated thereon through no fault of the defendant.

Similarly, during the period from 2014-2018 when the parties were attempting to fashion out a swop agreement, no liability could possibly attach to the defendant.  From the evidence as a whole, it is evident that the parties were bona fide in their quest to enter into a swop agreement.

The situation however took a different trajectory when the defendant realised for whatever reason that it could not consummate the swop agreement.  From then on it owed the plaintiff the duty to remove its structures and other paraphernalia from that stand.

In 2018 the defendant was placed in terms to remove its structures, which demand was ignored or disregarded.  Similarly, in 2020 the defendant was once again asked to remove its structures and it failed to do so.  The evidence by the defendant’s witness that defendant could not remove the structures on account of the COVID-19 pandemic induced national lockdown was patently contrived, not least because it was not pleaded.  It was a clear afterthought.

What is apparent from the defendant’s plea is that its position was that it had no legal obligation to remove the structures for twin related reasons. Firstly, that it erected these structures when part of the plaintiff’s stand was still part of its stand and secondly that when plaintiff purchased the stand in question, he was aware of the existence of those structures.

Whether the plaintiff managed to prove having incurred economic loss

In order to succeed, to recover damages, the plaintiff is required to place before the court convincing evidence that he sustained such loss.  Delictual damages under the Aquilian action are compensatory and not punitive in nature.

Admittedly, the plaintiff could not demonstrate with mathematical precision the quantification of his damages.  However, that is not the end of the matter. The plaintiff invited the court to make an estimation of the loss he suffered given that the same was not in the instant case capable of exact mathematical calculation. Reliance was placed on the following passage from the case of Munorwa v Muza & Others HC1172/12.

“It is not the purpose to enrich him.  The damages may not be measured with exact mathematical precision.  Further, the honourable Judge also refereed it Esso Standard SA v Katz 1981 (1) SA 964 (AD) wherein it was noted that “in some cases, damages are difficult to estimate but that does not relieve the wrongdoer of the obligation to pay…  Again, further reference was made to Hersman v Shapiro 1926 TPD 367 which states that “monetary damages having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it.” {emphasis my own}

See also Mbundire v Butress SC-13- 2011.

While agreeing with the applicant that situations do arise where damages are incapable of precise mathematical computation, the defendant in its closing submissions urged the court to find that the plaintiff had not placed sufficient evidence upon which the court could make its estimation.  It relied on the case of Aaron’s Whale Roul Trust v Murray & Roberts & Another 1992 (1) SA 652 at 655 where the following was said’

“Where damages can be assessed with mathematical precision; a plaintiff is expected to adduce sufficient evidence to meet the requirements.  Where, as is the case here, this cannot be done, the plaintiff must lead evidence as available to it (but of adequate sufficiency) so as to enable the court to quantify his damages to make an approximate award on his favour.  The court must not be failed with an exercise in guesswork, what is required of a plaintiff is what he should put before the court enough evidence from which it can, albeit with difficulty, compensate him an award of money as a fair approximately his mathematically unquantifiable loss”

What probably eluded the defendant was that in this jurisdiction and elsewhere, various methods have been devised by the courts to calculate damages arising from the deprivation of one’s enjoyment of his property. Where the unavailability of the property to its owner has not generated tangible financial loss, which could be the subject of special damages general damages for the loss of use, or the inconvenience of not having access to the property, may be awarded. The courts have used various methods to calculate such general damages, but they have often not explained why one particular method rather than a different one was used. The five methods that have been considered by the courts: (1) wasted expenditure; (2) depreciation; (3) interest on capital value; (4) letting value; and (5) the hypothetical cost of renting a substitute property.

In England this was first recognised by the House of Lords in the case of The Greta Holme [1897] AC 596, 602. This decision was followed in subsequent cases including, The Mediana [1900] AC 113, 116; The Marpessa [1907] AC 241, 244; The Chekiang [1926] AC 637, 642 The Susquehanna [1926] AC 655, 662; The Hebridean Coast (n 9) 551

In Australia the courts have equally recognised an action for the loss of use of one’s property. Although the courts draw a distinction between loss of use of real estate (as in the present case) and loss of use of chattels, See Arsalan v Rixon (2021) 395 ALR 390; Leeda Projects Pty Ltd v Zeng [2020] VSCA 192 & Ray Laurence Constructions Pty Ltd v Nolks [2010] NTSC 37.

There are similar cases emanating from the South African courts although most claims for such unlawful deprivation of property can be brought in terms of the relevant provisions of the South African Constitution, see Modderfontein Squatters & Anor v Modderklip Boedery (Pty)  Ltd & Ors 2004 (6) SA 40 & Changing Tides 74 (Pty) Ltd The City of Johannesburg SA40135/16 (unreported)

In casu the parties are in agreement that the damages sought are not capable of precise mathematical calculation.  The outstanding question, therefore is whether the plaintiff has placed before the court sufficient evidence upon which the court estimate his loss.  I believe he did.  The parties agree that the piece of land in question is a commercial stand and that the plaintiff had acquired it for purpose of commencing a commercial enterprise.

The two methods which are applicable in casu are the “letting value” method and the “hypothetical cost of renting a substitute property method”. In an article by Sirko Hardy “Valuing the inconvenience resulting from the temporary unavailability of one’s property” published in the (2023) 44 (1) Adelaide Law Review explains the distinction between these two methods as follows:

“It is important to distinguish this method from the letting value method considered before. The letting value method identifies the amount of rent that the plaintiff could in theory have obtained from letting the subject property to someone. The method considered now [the hypothetical cost of renting a substitute property] identifies the rent that the plaintiff would have had to pay for renting a substitute property. Even if the subject property and the substitute are of the same value, the amount of rent that the plaintiff would have to pay to a commercial lessor for a substitute property is not necessarily the same as the amount of rent that the plaintiff as a lessor would be able to charge for the subject property, in particular where the plaintiff is not running a business.

The favoured method in such instances is the hypothetical cost of renting a substitute property method. Therefore, the $10 000 sought by the plaintiff cannot be by any stretch of the imagination be deemed to be arbitrary, excessive or unreasonable. Lest it be argued that the plaintiff did not plead general damages arising from the loss of use of his stand, paragraphs 10, 11 and 13 of his declaration, referred to in page 2 of this judgment shows that he clearly did. It is on the basis of the notional or hypothetical cost of renting a similar substitute commercial property that I believe the amount of $10 000 sought by the plaintiff is reasonable in the circumstances.

One of the clearest indicators of the notional cost for renting out a similar substitute property is provided in the plaintiff’s abortive claim for rent. He had sought to obtain “rent” from the defendant in the sum of US$500/month. Although the plaintiff did not necessarily rely on this figure, it nonetheless provides an idea, (albeit indirect

If one considers that this was a commercial stand and further that that the offending structures remained on the plaintiff’s property from 2018 (when the swap deal collapsed) to 2021 (when the defendant eventually removed its structures) that would translate to a mere $278/month.

Accordingly, the claim succeeds as follows:

The defendant to pay the plaintiff sum of US$10 000 or its equivalent in Zimbabwean currency, calculated at its prevailing bank rate on the date of payment being damages for defendant’s continued unlawful occupation and usage of plaintiff’s property being Stand No. 27810 Masvingo.

The defendant to meet plaintiff’s costs of Suit.

ZISENGWE J

Chigariro Phiri & Associates- Plaintiff’s Legal practitioners

Chadyiwa &Associates- Defendant’s Legal Practitioners