Naomi Bvunzawabaya and Kinny Mukome v Godfrey Machiwana

### Preamble
1
HMT 15-22
HC 349/19
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NAOMI BVUNZAWABAYA

and

KINNY MUKOME

versus

GODFREY MACHIWANA

HIGH COURT OF ZIMBABWE

WAMAMBO J

MUTARE, 9 September 2021 and 29 April 2022

Civil Trial

M Mandingwa, for the plaintiffs

T J Madotsa, for the defendant

WAMAMBO J:   A fire broke out at 100 Hauna Growth Point (hereinafter called the business premises) premises owned by the first plaintiff.  First plaintiff rented out the business premises to second plaintiff and defendant.  The fire caused destruction to the business premises and movable property and fittings belonging to both first and second plaintiffs.  The plaintiffs allege that the damage was caused by defendant’s negligence.  Plaintiffs proceeded to issue summons against defendant for damages arising from the destruction caused by the fire to the building itself and the value of the destroyed building and value of the destroyed moveable property and further for economic loss due to closure of business arising from the destruction of the business premises.

Issues referred for trial are couched as follows:

“(a)	Whether or not defendant negligently caused the fire outbreak at first plaintiff’s premises.

(b)	Whether or not the defendant owes the plaintiff the sum of $1 624 365.00 as costs for repairing the building.

(c)	Whether or not the defendant owes the plaintiffs the sum of $10 000.00 being costs for economic loss due to closure of business arising from fire negligently caused by the defendant.

(d)	Whether or not the defendant is liable to pay the plaintiffs the sum of $167 460.00 being the cost of the destroyed movable property belonging to the second plaintiff which was destroyed by a fire negligently caused by the defendant.

(e)	Whether or not the defendant is liable to pay interest at the prescribed rate from date of summons together with costs of suit.”

During the trial plaintiff produced a bundle of discovered documents as exhibit 1. These appear from pp 29 to 139 of the record.  These comprise quotations, a ZERA report, a record of proceedings under MTS 146/20 and a Mutare High Court criminal appeal judgment HMT 80/20 wherein the defendant is cited as the appellant.

Defendant’s bundle of discovered documents was marked Exhibit 2.  It comprises quotations.  Exhibit 3 is the plaintiff’s supplementary discovered documents.

A number of witnesses took to the stand.

In plaintiffs’ case the witnesses who testified are first and second plaintiff.  In defendant’s case the witnesses who testified are the defendant and Blessing Samushonga.  Thereafter both plaintiffs and defendant’s counsel filed closing submissions.

I will proceed to first summarize the relevant portions of the witnesses while noting my observations and findings on each witness.  I will then deal with the documentary evidence, that was produced before delving into the law in as far as it is relevant to the issue raised in this case.

The first plaintiff an elderly lady testified-in-chief as follows:

She is 78 years old.  She is the owner of Stand 100 at Hauna growth point.  Defendant was one of her tenants.  He carried out the business of repairing refridgerators.  Defendant was her tenant through a verbal agreement.  Her premises were gutted by fire on 29 July 2018.  She is of the firm belief that the fire started at the room where defendant was operating from.  Before the incident defendant also used to sell gas from her premises.  The fire caused a lot of damage to the building and equipment.  Some of the damage caused by the fire included damage to the roof, the ceiling and the cables.  Her premises comprised three rooms.  The defendant occupied the first room, second plaintiff, the second room and the third room was not occupied.  Amongst the major assets destroyed or damaged by the fire were her cold room, fridge, scale and meat cutter.  These were in the butchery, which is the second room occupied by second plaintiff.  She was convinced that defendant sold gas at the business premises as she saw customers buying gas from him.

In cross-examination she proceeded to testify as follows:

Her business premises was built in 1970.  She placed its value at over USD$15 000.00 but she was quick to add that she would need to consult further on the actual value of her business premises.  She was asked to comment on the ZERA report and its author.  Her evidence was that she did not know the author of the ZERA report.  Asked that the said author was married to a woman related to the Bvunzawabayas her retort was that she is a Bvunzawabaya by marriage.  Defendant’s counsel put it to first plaintiff if she would accept it if defendant repaired only the room he occupied and not the whole building to which she answered that if he repaired that room it would be “okay”.  This was understood by defendant’s counsel to mean she was abandoning her claim for the damage caused to the other two rooms.  I did not understand her to say that. I got the distinct impression that she was accepting the offer but not abandoning the rest of the claim.  This is because she never testified to that effect.  I got the impression that as an elderly lady who wanted to salvage the damage caused to her building any attempt at recouping her loss might be acceptable.  This did not amount to withdrawing her claim as it appears in full in the summons.

The evidence of first plaintiff has to be considered against a host of factors.  She did not impress me as a person given to exaggeration.  She testified on what was personally observed by her and did not appear intent on gaining more than the damage occasioned to her business premises.  I note also that the fire erupted in her absence.  The quotations were also obtained by her son according to her.  I believed her evidence.

The next witness to testify was second plaintiff.  His evidence was to the following effect.   He was renting a room at first plaintiff’s business premises.  He was carrying on the business of a butchery.  He was also renting accessories within the butchery, namely a cold room, a meat cutter and chiller refrigerator and a scale. On the fateful day that the fire broke out he received a phone call and proceeded to the scene.  At the scene he observed a ball of fire engulfing first plaintiff’s business premises.  Most of the fire emanated from defendant’s room.  Although there were attempts at putting out the fire, the fire was too “harsh”.  Two of his fridges were salvaged from the fire.  Asked that defendant was pointing a finger at him as having caused the fire because he kept petrol in the butchery he disputed this claim.  He testified that he was not residing at the butchery.

He further justified his claim.  He testified that there was also meat he had bought from Nyanga that was destroyed by the fire.  He also testified to further damage of his digital scale and destruction of door frames air vents and ten roofing galvanized sheets.  He testified that although he was not present when the fire started his observations were that the fire started from defendant’s room.  In cross-examination he was quizzed further about keeping petrol in the butchery.  His answer was that he never owned a motor vehicle.  He testified that according to his observations the fire moved swiftly from defendant’s room to the butchery because there is an opening between the two rooms.  He disputed the claim that Blessing Samushonga was one of the people who salvaged some of his property from the butchery.  He refuted the claim that there was bad blood between him and defendant.

Defendant testified as follows:  He repairs refrigerators and is also an electrician.  First plaintiff’s son was the one administering his mother’s business premises.  He was a tenant at first plaintiff’s business premises.  The agreement between him and first plaintiff was that he would repair fridges and carry out his duties as an electrician.  The agreement was between first plaintiff and Mach One Refrigeration Company under which he holds the esteemed position of company director.

On 29 July 2018 at 1630 hours he closed his workshop.  (This workshop is referred to as his room in portions of this judgment).   In his workshop was one window facing east.  He left second plaintiff at his workplace (the butchery).  At 2225 hours he received a phone call in connection with the fire at first plaintiff’s business premises.  He proceeded to the scene.

At the scene he noted that the fire had encroached into his workshop and also the butchery.  He looked for but could not locate the security guard, Steven Mawakise.  He proceeded to the police station, seeking assistance to extinguish the fire.  A Wattle company vehicle was dispatched to the scene to assist in extinguishing the fire.  He gave evidence that Blessing Samushonga told him he had seen second plaintiff braaing meat in the verandah of the butcher along with his friends.  He testified that he was not friends with second plaintiff.  According to him there was nothing that could bind him to second plaintiff as a friend.  Asked to comment on the ZERA report he said it was shallow because the author of the report only visited the scene on 28 August 2018 way after the eruption of the fire.  He made some investigations which reflected that the author of the report penned the report while on leave.

He went further to allege a relationship between the author of the report and first plaintiff.  According to him the author of the report is married to a woman from the Chimhini family while first plaintiff’s first born is also a daughter-in-law of the Chimhini family.  He was unable to put a name to the husband of first plaintiff.  This detail was not asked of first plaintiff.  A vague question was asked of her alleging a link between her and the author of the ZERA report.  She was not asked if she had a daughter married in the Chimhini family. This was either because this alleged relationship was being made up as the trial progressed or that the defendant omitted or forgot to ask first plaintiff.  The clear intention was to cast aspersions on the author of the report as being biased.  If this alleged relationship was relevant I do not see any reason why it was not asked of plaintiff in the detail that emerged later.

I find for those reasons that it was a red herring thrown to impugn the ZERA report.  The allegation that the author thereof was on leave was just but a claim. No basis was laid.  No evidence was tendered from his employer ZERA to prove this and for ZERA to comment on whether if he was on leave he was ineligible to compile a report such as the one in this case.  I consider these aspersions on the conduct of the author of the ZERA report as unproven and thus untrue.  Defendant refuted having started the fire and pushed the blame to second plaintiff.  He was of the view that the quotations were exaggerated.  However, he could only pick out a few items which he was unsure of.  At the same time he could not offer less expenses from his own quotations. In cross examination his own quotations were alleged to be irregular and incomplete.

I find defendant’s evidence rather combative and defensive.  He impugned the author of the ZERA report unsuccessfully.  He attempted to push the blame to second plaintiff.  He was generally over elaborate even when responding to questions on non-essential issues.  He testified of private investigations he carried out but laid no basis for allegations arising from the said private investigations.  He did not consider it necessary to call the private investigator to testify on his findings.  His evidence in trying to explain how the fire started was not convincing in the light of other evidence as will become clearer in the course of the judgment.

The next witness is Blessing Samushonga.  His evidence is as follows.

On 29 July 2018 he was braaing meat together with second plaintiff. Close to the start of his evidence  he described second plaintiff as the type of person who is denying because he committed the offence.  Prompted further he said that second plaintiff started the fire.  Effectively it reflected that he was out to finger second plaintiff as the cause of the fire.  He was quick thereafter to say second plaintiff took the security guard into a commuter omnibus that uses petrol.  The relevance of imputing use of petrol in the omnibus was to lay a basis that second plaintiff had petrol stored in the butchery.  He further described that the fire started from the butchery.  His evidence-in-chief was rather short and was mainly to prove the presence of second plaintiff when the fire started and that the fire started from the butchery.  It also turned out that he was not one of the persons interviewed by the author of the ZERA report.  Surprising because according to his evidence he was at the very forefront when the fire erupted and other witnesses to the fire erupting would have mentioned his name and his observations would have been relevant and important to the completeness of the report.  He could not explain why he said the fire started in the butchery.  I take it he testified solely to implicate second plaintiff.  Where his evidence differs from that of second plaintiff I find that I prefer second plaintiff’s version to his.

The ZERA report appears at pp 65 – 71 of the record.  It reflects under accident cause analysis as follows:

“Possibility of LPs gas cylinder leaking, could have met a source of ignition from the pilot lights on the fridges lack of adequate ventilation in the room.”

Under immediate causes it reflects as follows:

“Leaking LP gas cylinder inside the room and the possibility of ignition source coming from the pilot light of the refrigerators.  There was no evidence that indicated that decanting of LPG gas was conducted in accordance to the requirements of ZWS 960 Part 3 Standard.  The room was not suitable for both repairs and decanting of LPG gas due to lack of room ventilation.”

At p 71 the ZERA report records as follows:

“Mr Godfrey Machione to be prosecuted for violating Section 29 of the Petroleum Act and Section 3 of the Petroleum (Liquid Petroleum Gas) Regulations Statutory Instrument 57 of 2014 for operating an LPG retail business without a licence.”

A record of the proceedings before a Magistrate sitting at Mutasa Magistrates Court appears at pp 72 to 129.  The defendant was therein an accused who was found guilty of contravening of s 29 of the Petroleum Act [Chapter 13:22] as read with the Energy Regulations [Chapter 13:23].

An appeal was launched against conviction.  The result was that the appeal was dismissed under HMT 80/20 appearing at p 136 of the record.  I have considered the findings in the above cases.  They go into detail about defendant being proven to deal in procuring and selling liquid petroleum gas without a licence.

That evidence which forms part of the record in this case supports the assertion that defendant acted negligently when he stored liquid petroleum gas at first plaintiff’s business premises.

The ZERA report also formed part of the evidence.  The author thereof Israel Kuchochi also testified at the trial and his evidence is clear on the cause of the fire.

The defendant was in possession of a dangerous substance namely LPG gas cylinders.  He did not follow the requirements for its storage and safe keeping.  He was ill-trained to deal with LPG gas.  He did not store the said gas in an approved room.  The room he was using as a workshop was ill-suited for the purpose of storage of the gas as it had one window.  It had poor ventilation.

The gas caused the fire as was supported by the findings contained in the ZERA report.  I find no reason to depart from the findings contained therein.  Mostly because there is supported evidence of eye-witnesses on that the fire emanated from the workshop or room used by defendant.

Defendant possessed a potentially dangerous gas in a room devoid of ventilation along with a potentially dangerous surrounding atmosphere wherein there were refrigerators he was repairing in the vicinity of the LPG gas cylinders.

In Mills v Farmery 1989(2) ZLR 336(HC) GREENLAND J said the following at p 344 D-F:

“In our law a person is generally not liable for loss or damage caused to his neighbour merely because he fails to stop such loss or damage.  This principle is correctly expressed by saying there is no liability for mere omission.  Haliwell v Johannesburg Municipality Council 1912AD 659 at 670-2, Cape Town Municipality v Paine 1923 AD 207, SA Railways v Estate Saunders 1931 AD 276, Voet 9.2.3.  There are exceptions which include the position where a person is in possession or control of a dangerous thing.  To quote WESSELS CJ in Colman v Dunbar 1933 AD 141 at 157:

“If the circumstances are such that a person of common sense who has the custody or control of a certain thing could recognize that it is likely to be a danger to others, then it is his duty to take reasonable care to avoid such injury.”

It goes without saying that defendant even according to his own evidence has a considerable experience in the business of repairing refrigerators.  The mixture of gas cannister and refrigerators under repair in an enclosed space could not have escaped his attention.  The circumstances reflect that as an experienced repairer of refrigerators he should have taken precautions to avoid the start of a fire as what eventually happened.

On the evidence before me I find the answer to issue 1(a) as referred for trial in the joint pre-trial conference minute to be in the positive.

I find that defendant negligently caused the fire outbreak at first plaintiff’s business premises.

Issue 1(b) relates to whether defendant owes plaintiffs $1 624 365.00 as costs for repairing the building.

The plaintiffs made efforts to tabulate the costs in quotations produced before me.  The quotation covers an array of articles such as inter alia nails, tying wire, pit sand, cement, sockets, bricks, doors, paint, cables, roofing and plastering.

Besides defendant claiming the values were exaggerated there was virtually nothing more.

The articles covered by plaintiff’s quotations appears solid.  Defendant without a basis impugns the values attributable to the building materials as tabulated by plaintiffs.  A half- hearted effort was made by defendant by producing his own quotations.  The said quotations by defendant amount to a total of about US$8 000.00.

In his evidence, defendant places the damage at US$3 000.00.  It becomes clear that defendant concedes that the value of the damage caused to the building and the materials needed to bring it back to its former self is substantial.  There is a generalization on the part of the defendant that the values as given by plaintiff are exaggerated.  There is no such basis laid.

At the end of the day although the plaintiff’s quotations amount to a total above that claimed in the summons I find the quotations fair and not exaggerated.  An explanation has been tendered by plaintiff’s counsel on the values varying because the initial amounts were converted from the US$ value to RTGS value.  Upon the quotations being done directly per RTGS value the amounts are bound to differ to some extent.

I find in the circumstances that it has been proven that defendant owes first plaintiff $1624365.00 as costs for repairs to be carried out on her building.

On costs of economic loss due to closure of business, not much in terms of evidence was led.  Perhaps the plaintiff’s counsel overlooked it while concentrating on the larger claims.  Nothing was placed before me to justify this amount or a lessor amount.  To that end I find that this amount has not been proven.

On the costs of movable property belonging to second plaintiff quotations were also produced to prove this.  I note that in closing submissions defendant does not question the values as given in the joint pre-trial memorandum.  In fact defendant skirts the issue of the values attributable to the damage caused by defendant.  In a case where both parties produced quotations of the damaged property it is surprising that defendant is mute on the values thereof in closing submissions.

I note that plaintiff’s closing submission were filed on 20 September 2021 while defendant’s closing submissions were filed on 27 September 2021.

I take it besides knowledge that quotations had been tendered to prove the damages, defendant would have noted issues raised particularly on the values of the damaged property.  Plaintiffs talk to the quantum of damages at pp 5 to 9 of their closing submissions.  To this defendant did not respond.  I am fortified that defendant’s stance on this issue amounts to a concession that the values as given by the plaintiffs in their summons are unimpeachable.

Second plaintiff testified about his loss.  His evidence was that two of his refrigerators were gutted by the fire, his meat was also destroyed along with a digital scale, ten roofing sheets, 21 sets of air vents and ten door frames.  He testified to the values of the property he lost in the fire.  The values were not resisted by defendant.  The property enumerated by second plaintiff is to a large extend reflected on the ZERA report at p 67 of the record.

I find in the circumstances that second defendant proved his case and stands to be granted the damages in the quantum reflected on the summons and joint pre-trial memorandum.

On the issue of costs they will follow the successful party.  Plaintiff’s claims succeed and I order as follows:-

Judgment with costs be and is hereby entered in favor of first plaintiff in the sum of $ZW1 624 365,00 being costs of repair to her business premises, being Stand 100 Hauna Growth Point and interest at the prescribed rate from the date of summons.

Judgment with costs be and is hereby entered in favour of second plaintiff in the sum of ZW$167 460 being costs of the destroyed property belonging to second plaintiff and interest at the prescribed rate from the date of summons.

The claim for ZW$10 000 for costs of economic loss due to closure of business is dismissed.

Mhungu and Associates, plaintiff’s legal practitioners

Madotsa & Partners, defendant’s legal practitioners