National Railways of Zimbabwe v Joseph Marshall Stuart

### Preamble
Judgment No. SC 70/21
1
Civil Appeal No. SCB 40/19
---------


DISTRIBUTABLE	(66)

NATIONAL     RAILWAYS     OF     ZIMBABWE

v

JOSEPH     MARSHALL     STUART

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, UCHENA JA & CHITAKUNYE AJA

BULAWAYO:  22 JULY 2020 & 4  JUNE 2021

A. Muchadehama, for the appellant

V. Majoko, for the respondent

CHITAKUNYE AJA: This is an appeal against part of the judgment by the High Court of Zimbabwe, sitting at Bulawayo handed down on 24 October 2019 wherein the court granted the respondent’s claim for damages for past medical expenses in the sum of US$2 000-00, bodily injury- loss of amenities of life in the sum of US$1 500-00 and contumelia, humiliation and defamation in the sum of US$10 000-00. The awards being in United States dollars the court a quo ordered that all sums were payable in Zimbabwe dollars at the interbank rate applicable on the date of payment.

FACTUAL BACKGROUND

The facts giving rise to the appeal are largely common cause. They may be summarised as follows;

The respondent was employed by the appellant as a conductor in March 1977. In August 2000 an incident occurred leading to him being charged with fraud by the appellant. As a result of the allegation he was suspended and subsequently dismissed from employment. His internal appeals against the decision were to no avail. The respondent was, however, reinstated in January 2002 after he had approached the High Court on a review of the manner in which the misconduct proceedings had been conducted. He remained in employment until 31 January 2003, when he retired on medical grounds.

The appellant alleged that on the night of 10 to 11 August 2000, the respondent was on duty on one of the appellant’s trains from Victoria Falls to Bulawayo when he charged a passenger, one Elias Ncube, for the full train fare to Bulawayo in the sum of $135.00 but issued him a ticket for $47.00 and converted $108.00(sic) to his own use.  The anomaly was discovered by auditors, who were carrying out their duties on the train. The auditors confronted the respondent about the anomaly. The respondent denied that he had converted the money to his own use.

Despite the denial, in December 2000 misconduct allegations were levelled against the respondent.  The appellant’s management brought a misconduct charge of fraud against him in terms of the Third Schedule, paragraph 7 of the National Railways of Zimbabwe Code of Conduct. The respondent was subsequently found guilty and was dismissed from employment. He unsuccessfully noted an appeal to the General Manager.

Still dissatisfied with his conviction and sentence, the respondent sought redress from the High Court by way of a court application for review. The proceedings were eventually set aside and an order for his reinstatement was made. He was reinstated by a letter dated 26 November 2001. He remained in employment up to the date he was retired on medical grounds on 31 January 2003.

The respondent alleged that in the period of his suspension and dismissal the appellant published his case in an internal weekly publication thus bringing his suspension and dismissal on allegations of theft/fraud to the notice of many people with access to that publication. He further alleged that the appellant’s security officer, one Mr Matanhire, had treated him in the most degrading manner and had also threatened to repossess his house. The respondent also contended that the sum which was involved did not warrant the seriousness, malice and victimisation suffered by him at the appellant’s hands. As a consequence of the treatment at the hands of the appellant he was traumatised. After the High Court set aside the appellant’s proceedings and ordered his reinstatement, the appellant, through Mr Matanhire, wrote a letter to the respondent dated 29 January 2003 apologising to the respondent for the mental anguish the charges against him had caused.

The respondent regarded the disciplinary proceedings, accusations and conduct of the appellant, as malicious and contumelious.  The strain of the matter caused him to develop post-traumatic mental disorder and his doctors confirmed this position. He also indicated that this condition persisted and, as a result, he sought early retirement on medical grounds. Consequently on 17 May 2004 he issued summons against the appellant claiming damages in Zimbabwe dollars in the court a quo as follows:

$248 292.38 for past medical expenses.

$1 292 460 for future medical expenses.

$6 000 000 for psychological injury, loss of general health, and loss of amenities of

life.

$5 000 000 for contumelia, humiliation and defamation.

$115 136 000 for loss of pension funds.

$411 300 774 for loss of earnings.

Interest on all the above at the prescribed rate from the date of service of summons to date of full payment.

Costs of suit.

The appellant disputed the claim and pleaded that there was no link between its actions and the alleged post traumatic disorder. The appellant contended that the respondent’s averments and allegations lacked proof to support them.

The trial commenced on 13 February 2007 and went through what the trial court in its ruling on an application for absolution from the instance on 24 September 2015 termed ‘a chequered route characterised by delays in prosecuting the plaintiff’s claim, change of legal practitioners and attempts at amendments. The ‘attempts at amendments’ related mostly to abortive attempts at adjusting the sums claimed due to the hyperinflationary environment then obtaining which were never prosecuted to finality save for the last amendment granted on  23 January 2014 providing for United States dollar denominated claims. The trial was only concluded on 19 October 2019 when judgment was handed down.

It is common cause that at the time the respondent and his witness testified the claims were still denominated in Zimbabwean dollars. The respondent in his testimony in the court a quo, explained how he had been traumatised by the accusations levelled against him when he had not committed the offence. His protestation in this regard was met with a deaf ear. He testified on how he had been affected psychologically by the allegations leading to suffering psychological damage. As a result he lost the amenities of life. He testified about his sexual limitations and loss of marriage opportunities caused by this delict. A clinical psychologist testified to have diagnosed the respondent as depressed and suffering from trauma and distress causing him to be suicidal. The psychologist further testified that prior to the accusations of fraud levelled against the respondent, he had no history of depression and she had no doubt that the stress disorder he suffered was as a result of the allegations levelled against him. The respondent referred to the publication of the misconduct allegations as evidence of his claim for contumelia, humiliation and defamation.

It is pertinent to note that the respondent’s testimony on the quantum of damages spoke to Zimbabwe dollars. The record does not show that the figures had been altered in anyway. Efforts to amend the figures due to hyperinflation then obtaining were aborted. Thus the claims were still as on the summons, yet it is common cause that in the period in question hyperinflation led to revaluations of the moribund Zimbabwe dollar. In Mbundire v Butress SC13/11 at p 9-10 GARWE JA (as he then was) aptly described the situation obtaining during the hyperinflation era in these terms: -

“The amount claimed as at the date of commencement of the trial in October 2008 was the sum of Z$1 billion.  Judgment was given six months later in April 2009.  At the time the country was gripped by a hyperinflation environment which quickly eroded the value of money.  In February 2009, however, the multiple currency system was introduced.  Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.  At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion.  It is that claim that should have been considered by the court a quo.

In terms of s 6  of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I. 6/2009 financial institutions were instructed to accept between 2 February 2009 and 30 June 2009 old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.  In terms of s 8 of the Regulations, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created or transferred in terms of the old currency system and were to be settled, discharged or liquidated in terms of the old currency system provided, however, that on or after 1 July 2009 every debt was to be settled, discharged or liquidated in terms of the new currency system only.  In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict or otherwise.

By operation of the law therefore the claim by the appellant for general damages in the sum of Z$1 billion stood to be dealt with in terms of above regulations.  The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.”

Applying the above situation to this case it is clear that the sums claimed, which were nowhere near a billion dollars, had been rendered valueless. There was no value remaining after the currency revaluations and the coming into effect of Statutory Instrument 6 of 2009. This state of affairs remained up to the time the respondent’s claims were amended on 23 January 2014.

Under cross examination the respondent confirmed the effect of the monetary revaluations of the Zimbabwe currency during the period in question. He also conceded that he had not amended his claim despite the revaluations. In this regard the following exchange under cross examination is instructive:-

“Q.	Given removal of the zeros this amount that you are currently claiming had been            totally wiped out?

That’s it that’s the story. As we are standing that is the situation in the country it

does not apply only to me. If it’s totally wiped out it’s wiped out. There is nothing I can do.

Q.	 so you are claiming nothing?

A. 	if you want to put it that way if it’s wiped out it’s wiped out.

Q. 	so you are literally claiming nothing, is it correct?

A. 	as you say, it was the national issue. It was wiped out not by me but by the authorities…….”

Further on that:

“Q. so how much are you claiming from NRZ?

A. 	on this figure whatever it’s left of.

Q. 	how much?

A. 	I don’t know.”

When asked if it was the position that he did not know how much he was claiming from NRZ the respondent confirmed so and stated that he will have to sit down with his legal practitioner to work on it. It is thus clear that respondent appreciated that as at the time he testified the quantum of damages he had claimed was now valueless and he did not know what was left of it.

The respondent’s claim was only amended substituting the Zimbabwe dollar denomination with new figures denominated in the United States dollars after his testimony and that of his witnesses. The respondent did not testify on the new claim in foreign currency. The amendment did not grant respondent leave to reopen his case so that he could speak to the amended quantum and denomination thereof.

After the dismissal of the appellant’s application for absolution from the instance on 24 September 2015, the appellant led evidence from one witness. That witness’ evidence was not on the amendments. Thereafter judgement was handed down on 24 October 2019. The court a quo ordered that the appellant pays damages as follows:

Past medical expenses – US$2 000 payable in RTGS dollars at the interbank rate applicable on date of payment.

Bodily injury – loss of amenities of life – US$1 500 payable in RTGS dollars at the interbank rate applicable on date of payment.

Contumelia, humiliation and defamation – US$10 000 payable in RTGS dollars at the interbank rate applicable on date of payment.

It is pertinent to note that as the respondent’s testimony did not speak to damages in United States dollars there was no proof of damages in that currency, let alone to the extent claimed. In coming to its decision on this aspect the court a quo reasoned that:-

“I will now revert to the difficult issue of the rates used to convert the Zimbabwean dollar to the United States dollar as alluded to above. The plaintiff used different ratios for different heads. There is no rational explanation proffered for this approach. In my humble view, I stand guided by what the court stated in Mbundire case supra. Although the facts are not substantially similar, I think the principle stated therein should guide me in this difficult issue of the conversion. There is a conversion here that is not unfair to the defendant. For the incurred medical expenses the plaintiff used the ratio of US$1: Z$124. In my view this is a reasonable ratio that should be applied to all the heads. The defendant will not be adversely affected because in the other heads the plaintiff has now drastically reduced the United States dollars that he is claiming. In the end the defendant is not prejudiced by the adoption of the US$1: Z$124. This is a matter between parties domiciled and resident in Zimbabwe. On account of policy changes over the years it seems to me that in order to do justice I have to make the order in the United States dollars as per the last amendment granted. For practical and legal considerations I will make the order payable in local currency applicable on the day of payment.in this regard I have considered the provisions of section 22 of the Finance Act (No.2), Act No. 7 of 2019 and Statutory Instruments 33 and 142 of 2019.”

It is apposite to note that the respondent had not testified to any conversion rates. It is the court a quo that, without any evidence from the respondent, concluded that in seeking the amendments the respondent must have used varying conversion rates for each claim. It alluded to the rates as USD1: Z$124; USD 1: Z$430; USD1: Z$400, USD1: Z$500, USD1: Z$1 267 and USD1: Z$9 131.90. It was from the above summation that the court a quo reasoned that a conversion of USD1: Z$124 would not be unfair to the appellant.

GROUNDS OF APPEAL

Dissatisfied by the decision of the court a quo, the appellant noted an appeal to this Court. The appellant raised seven grounds of appeal as follows:-

The court a quo erred and misdirected itself in fact and in law in allowing the respondent to amend his claim from Zimbabwe dollars to United States dollars without any rational basis.

1.1	The court a quo erred and misdirected itself in giving judgment to the respondent based on the amended figures which amendment was without any proper causes or rationality.

The court a quo erred in awarding the respondent damages for past medical expenses, loss of amenities of life and contumelia, humiliation and defamation when the respondent had failed to prove that there was a causal link between the appellant’s actions and the respondent’s damages. This was particularly so given that the evidence on record showed that the respondent was guilty of misconduct wherein he had undercharged a passenger and converted the difference to his own use.

The court a quo erred and misdirected itself in awarding the respondent US$2000.00 special damages for past medical expenses when the respondent had completely failed to prove that he had suffered such damages.

The court a quo also erred in awarding the respondent the sum of US$1 500.00 for loss of amenities of life when respondent had failed to prove that he had suffered any loss of amenities of life as a result of appellant’s actions or omissions. Further, and in any event the damages were too remote.

The court a quo further erred and misdirected itself in awarding respondent damages of US$10 000-00 for contumelia, humiliation and defamation without specifying how much was for each of the three heads. Further and in any event respondent had failed to prove that he had suffered any contumelia, humiliation and that he had been defamed as a result of appellant’s actions.

The court a quo also erred in accepting the evidence of the respondent which evidence had been shown to be unreliable under cross examination and which in any event was of no probative value to the proof of the damages he was claiming.

The court a quo further erred in dismissing the appellant’s evidence without any proper analysis thereby coming to the erroneous conclusion that appellant had caused injury to the respondent which injury allegedly caused the respondent to suffer damages.

In the result the appellant sought the setting aside of the judgement of the court a quo and its substitution with an order dismissing the respondent’s claims.

At the hearing of the appeal, counsel for the appellant argued that the respondent failed to prove the damages for past medical expenses, loss of amenities of life and contumelia, humiliation and defamation before the court a quo. Counsel further submitted that the court a quo erred by amending the amounts claimed without any basis. Counsel for the appellant also made new submissions to the effect that the order of the court a quo ought to be denominated in RTGS and not United States dollars in light of Statutory Instrument 142 of 2019.

Counsel for the respondent, on the other hand, contended that there was conclusive proof for the claimed damages. Counsel further submitted that the court a quo could not be faulted for amending the amounts claimed from Zimbabwe dollars to United States dollars in light of the changes that had occurred in the country since the filing of the summons. Counsel further submitted that the amounts claimed were rational and justifiable as shown by the evidence led before the court a quo. Lastly, counsel submitted that the court a quo could not be criticised for making an order sounding in United States dollars since it was permitted at law.

Though the appellant steeped its appeal on a contention that the respondent was guilty of fraud it is my view that such arguments were misplaced as the issue before the court a quo   pertained to the respondent’s claim for damages consequent to the condition that necessitated his retirement on medical grounds. In any case it is common cause that after the High Court had set aside the initial disciplinary proceedings that led to the dismissal of the respondent and ordered his reinstatement, the appellant never resuscitated the misconduct charges to date. So any contention that the respondent was guilty of fraud is misplaced as there is no such conviction. In fact the appellant did not deny that the condition that led to the respondent’s retirement on medical grounds arose from the manner in which the respondent was treated during the period of suspension and dismissal on allegations of fraud. In my view the court a quo was correct in finding that the condition that led to the respondent’s retirement on medical grounds was a direct result of the appellant’s ill-treatment of the respondent. There was overwhelming medical evidence on this. There was virtually nothing from the appellant’s evidence to controvert the medical evidence adduced by the respondent.

ISSUES FOR DETERMINATION

From the grounds of appeal and submissions made by the parties, the issues for determination may be couched as follows:

Whether or not the court a quo erred and misdirected itself when it granted the amendment substituting the Zimbabwe dollar currency with the United States dollars on 23 January 2014.

Whether or not the court a quo erred in finding that the respondent had proved that he suffered damages under the respective heads as a result of the appellant’s conduct in the sums awarded;

If so, whether the respondent proved the quantum of damages granted by the court.

Whether or not the court a quo erred and misdirected itself in granting a judgment in United States dollars albeit payable in RTGS dollars at the interbank rate on the date of payment.

The issues will be considered seriatim:

Whether or not the court a quo erred and misdirected itself when it granted the amendment substituting the Zimbabwe dollar currency with the United States dollars on 23 January 2014.

It is trite that a party may apply to amend his or her pleadings at any stage. In this regard Order 20 Rule 132 of the High Court Rules, 1971 provides that:-

” Subject to rules 134 and 151, failing consent by all parties, the court or a judge may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”

In UDC Ltd v Shamva Flora (Pvt) Ltd 2000(2) ZLR 210 (H) at 216G-217A CHINHENGO J aptly stated that:-

“The approach of our courts has been   to allow amendments to pleadings quite liberally in order to avoid any exercise that may lead to a wrong decision and also to ensure that the real issue between the parties may be fairly tried. This liberality is only affected where to allow  the amendment would cause considerable inconvenience to the court or prejudice  a party or where there is no prospect of the point raised in the amendment succeeding or where the matters set out in the amendment are vague and embarrassing and therefore excipiable.”

As the decision whether to allow the amendment or not is within a court’s discretion, it is only when such discretion is not properly exercised that an appellate court may interfere. In casu, I did not hear counsel for the appellant to contend that the court a quo did not exercise its discretion well. His quarrel was simply with the decision without alleging misdirection in the exercise of the court’s discretion.

In Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134(S) at 143H-144B KORSAH JA aptly stated that:-

“Admittedly, the granting or refusal of leave to amend is a matter entirely within the discretion of the trial judge, with which this Court ought to be very chary in interfering. But the discretion reposed in a judge must be judicially exercised. It seems to me that, where one of the parties comes to the court and declares that in order that justice may be done it is necessary that the record should undergo an alteration by allowing him to revive a defence erroneously abandoned, the judge may, in the judicial exercise of the discretion reposed in him, and having regard to all the circumstances of the case, grant such amendments as are necessary for the purpose of determining the real question in controversy.”

In casu in the absence of a contention challenging the manner in which the court a quo exercised its discretion in deciding to allow the amendment, this Court will not interfere with that decision. In any case it was common cause that the Zimbabwe dollar currency was moribund hence the need to substitute it with a currency that was functional was imperative as long as the respondent was able to prove his case on the amended claims.

I am thus of the view that grounds of appeal 1 and 2 challenging the granting of the amendment are without merit and ought to be dismissed.

Whether or not the court a quo erred in finding that the respondent had proved that he suffered damages under the respective heads as a result of the appellant’s conduct in the sums awarded.

It is trite that a plaintiff who sues for damages is required to prove on a balance of probabilities that he suffered damages, the extent of such damages and what amount of compensation he should be awarded in respect thereof. Sekgota v SAR& H 1974(3) SA 309(A), Nguvane v SA Transport Services 1991(1) SA 756(A) at 785, and Law of Damages P J Visser & JMP Potgietere at 435-6.

The proof required goes beyond just proof of injury but must encompass the extent of the injury and quantum of damages suffered as a result of such injury. A court of law will not presume damages in the absence of proof of such damages. However, the principle that a plaintiff must prove his damages is not a strict rule, what is required of a plaintiff is to place before the court all the evidence available to him in proof of his claim. Such evidence must not only relate to the aspect of damages suffered but must also include the extent of the damages suffered and the quantum of compensation sought.

In this regard it is apt to note that generally damages are either general or special. Different rules apply to general damages as opposed to special damages. The nature and extent of the evidence required varies according to the type of damages sought.

Special damages are those damages that have occurred or have been incurred and can be calculated with precision. In Mayisva v Commecial Union Fire and General Insurance Co. Ltd and another 1984(2)ZLR 181 at 191H the court aptly noted that:-

“It is an elementary proposition of law that a claim for special damages must not only be specially alleged and claimed, but must also be strictly proved.”

One way in which special damages are proved is by the production of invoices or receipts showing the expenses that were incurred. These are damages capable of precise proof as they are what the plaintiff will have incurred which is calculable.

General damages on the other hand are those damages that naturally flow from the wrong and are of a non-pecuniary nature such as pain and suffering, duration and intensity of pain caused by the intentional infliction of harm. A court when determining the quantum for general damages is exercising a broad general discretion when considering what fair and adequate compensation would be.

In considering such damages the court considers the facts and circumstances of the case and the injuries suffered by the plaintiff, including their nature, permanence, severity and impact on the plaintiff’s life. In the process the court considers the trend of awards in similar cases including the economic environment affecting such awards. Though these damages are not capable of precise calculation a plaintiff is still expected to speak to the quantum of the claim. The court is not expected to speculate on the quantum of damages to award where no quantum has been testified to.

Past medical expenses

It is trite that past medical expenses relate to expenses that have already occurred and can be precisely calculated using receipts and invoices. A claimant is entitled to recover damages for medical and hospital expenses reasonably incurred by him in accessing treatment.  In casu the respondent did not produce any receipts thus he made it difficult to precisely calculate the claim for damages as he did not produce any evidence of the medical expenses incurred by him. He only referred the court to statements from Railmed, a medical aid society.  This cannot be recognised as the best evidence that can be produced before a court as direct expenses incurred, for it to arrive at a conclusion and make an award. It is an elementary proposition of law that a claim for special damages must not only be specially alleged and claimed, but also be strictly proved.

It is the respondent who had the onus to prove his claims. In this regard he testified to the statements of payments from Railmed Medical Aid Society as proof of what he incurred, which statements he in fact did not produce but said were somewhere in the files. The unproved payment of medical expenses by a medical aid society cannot be claimed as damages directly incurred by a party. The award for medical aid contributions is also unclear. If the employee incurred any medical expenses then such expenses should be proved before reimbursement is ordered. See First Mutual Life Ltd v Muzivi SC 9/07.

In casu, the respondent conceded that Railmed Medical Aid Society was a contributory medical aid scheme and so it was not just his contribution to the scheme that was used in paying for his medical needs but even the portion contributed by his employer was also utilised. In that regard it cannot be said it was an expense he incurred for which he has to be reimbursed. As regards the figure claimed the respondent in fact said that he did not know what period the statement he got from Railmed covered. If he did not know this how could the payments made by the medical aid society be deemed payments towards the treatment of the respondent during the period in question. In the absence of proof of the sums incurred it was impossible for the court a quo to convert the figure from Zimbabwe dollars to United States dollars at USD1: 124. Clearly there was no basis for such conversion. The respondent had not testified on the purported conversion rates and so this was the court a quo’s own conclusion. The court was clearly not at liberty to make such conclusion when the respondent had not been recalled to testify on the amendments. Whilst the respondent showed that he suffered damages for which appellant is liable, he failed to adduce enough evidence to prove his claim in computing the damages in the amended sum.  It is my view that the finding by the court a quo in that regard was irrational. The court, in my view, misdirected itself in making the finding that the respondent had proved the quantum of damages claimed as amended. Such finding cannot be allowed to stand.

General Damages

These are damages naturally flowing from the wrongful conduct alleged and are of a non-pecuniary nature. In casu, the respondent   was awarded general damages for: i) loss of amenities of life in the sum of USD 1 500.00 and for ii) contumelia, humiliation and defamation in the composite sum of USD 10 000.00.

In assessing such general damages the court is guided by general principles. Some of these were laid down by GUBBAY JA (as he then was) in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S), at pp 7-8 as follows;

“…general damages are not a penalty but compensation designed to compensate the victim and not to punish the wrongdoer. The compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed. Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations. The court is therefore entitled, and it has the duty, to heed the effect its decision may have upon the course of awards in the future. The fall in the value of money is a factor which should be taken into account in terms of purchasing power, but not with such an adherence to mathematics as may lead to an unreasonable result. No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper. Awards must reflect the state of economic development in line with policy changes.”

With respect to loss of amenities of life, these were described in Administrator-General SWA & Others v Kriel 1988 (3) SA 275 (A), at p 288:

“…as those satisfactions in one’s everyday existence which flow from the blessings of an unclouded mind, a healthy body and sound limbs. The amenities of life derive from such simple but vital functions and faculties as the ability to walk and run; the ability to sit or stand unaided; the ability to read and write unaided; the ability to bath, dress and feed oneself unaided; and the ability to exercise control over one’s bladder and bowels. Upon all such powers individual human self-sufficiency, happiness and dignity are undoubtedly highly dependent”.

The court is satisfied that the respondent suffered a measure of incapacitation, as he testified to post- traumatic stress disorder resulting in loss of amenities of life. It is undisputed that the respondent had to retire early from work due to his condition and, as a result, he could no longer work like he used to before the injury occurred.  The respondent ought to have proved not only his disfigurement, its influence on his personal and professional life but also the quantum he places on such loss. For example, what activities was he able to do, which he has been incapacitated to do by the injury- in the form of post traumatic mental disorder- and what did those activities mean in his life.

This would have greatly assisted the court in reaching its final conclusions.  In Wynia (Pvt) Ltd v MBCA Bank SC 27/14, the court held that:

“A plaintiff who sues for damages is required to prove his damages. A court will not presume damages in the absence of proof of such damages by a plaintiff. It must first be established that the plaintiff has suffered some damages and that all that has to be established is the quantum of those damages.”

The respondent, in my view, proved that he suffered some damages under this head but failed to prove the quantum of damages as amended as he was not recalled to testify on the amended sum. The court a quo accordingly ought not to have granted him the amended sum as it did.

The next award related to contumelia, humiliation and defamation. Though these were awarded in a composite manner and are not capable of mathematical calculation, it was still important for the respondent to testify as to the quantum of damages that he believed he suffered in respect of each category in United States dollars.

The question is thus whether there was any evidence by the respondent justifying the awards. As already alluded to, in his evidence the respondent conceded that the quantum of his claims in Zimbabwe dollars had been wiped out and, by operation of law, were now of no value. It is my view that whilst the devaluation of currency did not affect issues of liability, it, nevertheless, affected the aspect of quantum of the claims before the court as acknowledged by the appellant. The amendments effected to address the currency and devaluation were not testified to by the respondent. The court a quo’s conversion was not supported by the evidence adduced.

It is pertinent to note that the court a quo noted that the amendments made did not provide a single conversion rate such that from its own calculation it noted lack of uniformity in converting the Zimbabwe dollar claims to United States dollar denominated claims. It is also apparent that the court a quo simply rubber stamped the quantum as amended without subjecting them to any test for proof.

It is also apposite to note that in granting the amendments the judge had acknowledged the need for the recalling of the respondent to testify on the amendments. Despite this acknowledgment the respondent was never recalled hence a lacuna was created on evidence on the amended figures. In the absence of such evidence it was a misdirection for the court a quo to mero motu opine that the respondent had used any conversion rate when he had not testified to that or even that he had proved the claims denominated in United States dollars. The failure to recall the respondent was a fatal irregularity that affected proof of the quantum of the awards made.  The awards made cannot thus stand.

Whilst the finding of liability by the court a quo cannot be faulted, the failure to recall the respondent to testify on the amended figures rendered the awards unsupportable.

Whether or not the court a quo erred and misdirected itself in granting a judgment

in United States dollars albeit payable in RTGS dollars at the interbank rate on the date of payment.

In deciding to grant the judgement in United States dollars but payable in RTGS dollars at the interbank rate on the date of payment the court a quo reasoned that:-

“On account of policy changes over the years it seems to me that in order to do justice I have to make the order in the United States dollars as per the last amendment granted. For practical and legal considerations I will make the order payable in local currency applicable on the day of payment. In this regard I have considered the provisions of section 22 of the Finance Act (No.2), Act No. 7 of 2019 and Statutory Instruments 33 and 142 of 2019.”

Section 4 (1) (d) of SI 33/19 provides that:

“(1)	for the purposes of section 44C of the principal Act as inserted by these   regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (the effective date)- ….

(d)	that, for accounting and other purposes, all assets and liabilities that were,          immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollars.”

Section 4 (1) (d) of SI 33/19 is now s 22 of the Finance (no.2) Act 2019.

The above provision was interpreted in Zambezi Gas (Pvt) Ltd v N R Barber (Pvt) Ltd & Another SC 3/20 at pp11-12 of the cyclostyled judgment as follows:

“The effect of the phrase “on and after” is that the conversion of the values of “all assets and liabilities” which were valued and expressed in United States dollars immediately before the effective date to values in RTGS dollars at a rate of one United States dollar to one RTGS dollar would apply at the time the value of the asset or liability is liquidated or discharged. Assets and liabilities covered by s 4 (1) (d) of S I 33/19 are of a sui generis nature. They accrue immediately before the effective date and continue to exist after the effective date.”

In Zizhou v The Taxing Officer and Another SC7/20 at p 3 MAKARAU JA alluded to the import of the aforesaid SI 33/19 in these words: -

“The Statutory Instrument introduced the RTGS dollar as a currency and legal tender, and placed it at par with the Bond note and the United States dollar. Although not of direct relevance to the determination of this review, S I. 33 of 2019 also decreed that all assets and liabilities denominated in United States dollars prior to the publication date were to be deemed to be in RTGS dollars at a rate of one to one with the United States dollar. It also declared that every enactment in which an amount was stated in United States dollars was to be construed as stating the amount in RTGS dollars at parity with the United States dollar.”

And later at p 4 that:

“In light of the prevailing legal position at the time the bill was taxed, its denomination in United States dollars was in contravention of the law. The first respondent therefore erred in passing under his hand a bill that had contravened the law.

Accordingly, and on this basis alone, the bill cannot stand. It is the settled position at law that anything done in direct conflict with a statute is a nullity.”

It is thus clear that as of February 2019 when SI 33/19 came into effect all claims or liabilities that were denominated in US dollars were deemed to be in RTGS dollars at a rate of one to one with the US dollar.

The provisions of SI 142/19 which came into effect on 24 June 2019 were to the effect that the Zimbabwe dollar (referring to Bond notes and coins and the RTGS dollar) was to be the sole currency for legal tender purposes. Section 2 thereof, which is now s 23 of the Finance (No 2) Act 2019, provides that:

“2 (1) subject to section 3, with effect from the 24th June, 2019, the British pound, United States dollar, South African rand, Botswana pula and any other foreign currency whatsoever shall no longer be legal tender alongside the Zimbabwe dollar in any transactions in Zimbabwe.

(2) Accordingly, the Zimbabwe dollar shall with effect from the 24th June 2019, but subject to section 3, be the sole legal tender in Zimbabwe in all transactions.”

In casu, the damages claimed by the respondent in 2004 were denominated in Zimbabwe dollar currency which was functional then. The matter was first heard in 2007. The trial continued through the years and judgment was rendered on 24 October 2019. Between the institution of the claim and the date of judgement, the United States dollar became legal tender in 2009. In 2014 the respondent’s claims were amended and were now denominated in United States dollars. By virtue of SI 33/19 these claims or liabilities were deemed to be in RTGS dollars on a rate of one to one with the US Dollar. Having so accrued immediately before the effective date they continued to be so after that date.

Concomitantly therefore when  SI 142/19 came into effect the claims could only be awarded in RTGS dollars as the only legal tender at the time of the judgement. It was thus a misdirection to express the order in US dollars payable in RTGS dollars at the interbank rate when by operation of law the claims had been converted to RTGS dollars.

DISPOSITION

The appellant asked for the setting aside of the court a quo’s judgment and its substitution with an order dismissing the respondent’s claim. Upon a careful consideration of the circumstances of this case I am of the view that the appellant’s liability for damages suffered by the respondent in respect of the heads under which damages were awarded was proved on a balance of probabilities. The appeal thus fails in respect of grounds 1, 2, 6 and 7.  The appeal, however, succeeds on the issue of quantum of damages as respondent was not recalled to testify on the amended claims when such was necessary. This inadequacy in the evidence does not warrant a dismissal of the claims but a remittal of the matter to the court a quo for the hearing of evidence on the amended claims. The appeal therefore succeeds in part in respect of grounds 3, 4 and 5.

Accordingly, it is ordered that:

The appeal succeeds in part.

The judgment of the court a quo is hereby confirmed on the issue of liability, but is set aside in respect of paras 1, 2 and 3 on the issue of quantum of damages.

The matter is hereby remitted to the court a quo for the hearing of evidence on the amended claims.

Each party shall bear its own costs for this appeal.

GWAUNZA DCJ:   		  I   agree.

UCHENA JA:   		 	 I   agree.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Majoko & Majoko, respondent's legal practitioners