Bravo Tours v George Kakoma

### Preamble
1
HB 112/20
HC 556/19
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BRAVO TOURS

Versus

GEORGE KAKOMA

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 27 May 2020 & 4 June 2020

Opposed application

R. Ndlovu, for the applicant

N. Ngwasha, for the respondent

DUBE-BANDA J: The applicant seeks an order that the respondent be ordered to pay a sum of $15 000.00 to the Registrar of High Court as security for costs for case number HC 53/18 (main case), before such case can be set down for trial. The application is opposed.

The facts of this matter are common cause, or not seriously disputed. Respondent is a national of the Republic of Zambia. He has in case number HC 53/18 caused a summons to be issued against the applicant, a company registered in terms of the laws of Zimbabwe.

The cause of action in the main matter is that, on the 28 November 2016, at approximately 1:00 am at the 218km peg, Bulawayo-Victoria falls road, applicant was involved in a road accident while travelling in respondent’s bus. In short, it is alleged the bus was not road-worthy and that both the applicant and the driver of the bus were aware that it was not roadworthy. It is further alleged that respondent sustained a degloving injury of the left hand, with traumatic amputation of the left ring, middle, index and small fingers. His injury has been put at 55% functional disability. He is claiming $35 000.00 in damages.

Applicant filed a plea. In its plea, it admits the fact of the accident, it admits that the driver, who is second defendant in the main action, was driving the vehicle during the course and scope of his employment. It admits that the accident was caused by the defect on the bus.

The parties have attended a pre-trial conference, and filed joint pre-trial conference memorandum. The pre-trial memorandum was filed on the 18 March 2020, and this application was filed on the 14 March 2020.

The question of security of costs is one of practice and not substantive law. The position is that a peregrinus who initiates proceedings in our courts must, as a general rule, give security to the defendant for costs, unless he has within the area of jurisdiction of the court immovable property with sufficient margin unburdened to satisfy any costs that may arise. He may also be absolved from providing security for costs, if the court in its discretion finds that he should not furnish such costs.

The court has an exclusive discretion to make such order or not to: Bowes and Ors v Manolakakis2011 (2) ZLR 59 (H) 63 D; Wong and Orsv Lin and Anor HH 380/13. The requirement of security for costs to be given by a peregrinus is not only there for the asking, neither is it there as a weapon of defence by an incola bent on preventing an approach to the court by a peregrinus. The object of the rule relating to provision of security is to ensure that an incola will not suffer loss if he is awarded costs of the proceedings. It protects the interests of the incola. See Redstone Mining Corporation (Pvt) Ltd and 3 Others v Dialog Group Zimbabwe (Pvt) Ltd and 4 Others HH 438/15.

The court has a discretion to dispense with the furnishing of security in exceptional cases, but that it should exercise this discretion sparingly. See Zendera v Mc Dade and Another 1985 (2) ZLR 18 (H) 20 A-D.

The court should see that justice is not being denied by unreasonable obstacles being placed in the way of persons seeking redress. The court should have due regard to the particular circumstances of the case and considerations of equity and fairness to both the incola and the peregrinus. In considering whether to absolve the peregrinus from furnishing security of costs, the court will consider the relevant facts of each case.  Hardship to the peregrinus and financial ability to provide security are taken into account but are not necessarily decisive. See Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5thed) at 391.

I need to briefly deal with the issue of onus and evidential burden, because Mr Ndlovu for the applicant contends that the onus of proving that the respondent is a peregrinus lies on the applicant, thereafter the onus shifts to the respondent to prove that the court has to exercise its discretion in his favour and absolve him from furnishing security of costs.

The burden of proof or onus in a civil claim is determined by the pleadings, and generally the onus lies with the party who applies for a remedy. Consequently, such party must prove that it is entitled to the remedy. The onus can never shift from the party upon whom it originally rested.

In Pillay v Krishma 1946 AD 946 at 952, the court stated that the onus is the duty which is cast upon a party or litigant in order to be successful, of finally satisfying the court that it is entitled to succeed in its claim. This is different from the evidential burden, which is the duty cast upon a litigant to adduce evidence in order to combat a prima facie case made by his opponent. See South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 3 SA 534 (A) at 548.

The onus can never shift from the party upon whom it originally rested. The evidential burden or burden of adducing evidence in rebuttal – may shift or be transferred from one litigant to the other during the course of the hearing. If the party bearing the onus of proof establishes a prima facie case, his opponent is then saddled with a duty to adduce evidence in rebuttal- evidential burden.

I therefore take the view that the applicant has the overall onus of proving that it is entitled to the order it seeks in this application. In discharging the onus, applicant must first discharge an evidential burden of showing that respondent is a peregrinus. I say so because, if applicant fails to place evidence before court showing that the respondent is a peregrinus, the enquiry ends at that point. Once this is done, the evidential burden shifts to the respondent, to place evidence before court showing that he has immovable property in the jurisdiction of the court, or that his is an exceptional case, and the court must exercise its discretion to dispense with the furnishing of security. By doing so, respondent is not discharging an onus, but an evidential burden, or adducing evidence in rebuttal. The onus of finally satisfying the court, that a case has been made for the order sought in the application, remains firmly on the applicant, it does not shift.

Applicant has placed evidence to show that respondent is a peregrinus. Respondent indeed accepts that he is a peregrinus. He contends that he neither owns any immovable property within the jurisdiction of this court, nor any sizable assets which could provide security for costs to the applicant. The question then is, on the facts of this case, can the court exercise its discretion and absolve the respondent from furnishing security for costs.

Respondent says in his opposing affidavit, that due to the injuries he has suffered, four of his fingers on his left hand have been amputated. He is now unable to work. He is unemployed because of the injuries. In this application and in the main case, he is legally represented by legal practitioners from the Legal Resources Foundation, who provide legal services for free to indigent people. He is indigent. He has placed documentary evidence before court, it reads as follows:

“Ministry of Health and Child Care

Mpilo Central Hospital

P.O Box 2096

Vera Road

Mzilikazi
	BULAWAYO

16 January 2016.

TO WHOM IT MAY CONCERN

RE: GEORGE KAKOMA: 61 YEARS: MALE

This letter is to confirm that the above named patient was involved in a road traffic accident on the 28/11/2016 and sustained a degloving injury of the left hand with traumatic amputation of the left ring, middle, index and small fingers.

According to my assessment he has a functional disability of 55%.

May you kindly assist him accordingly.

DR T. MUNDETE (HMO)

CONSULTANT ORTHOPADIC SURGEON

DEPARTMENT OF SURGERY “

Respondent has also attached documentary evidence from Livingstone Central Hospital. This document shows that he was treated for the injuries arising from the post amputation, at Livingstone Hospital, Zambia. He contends that the injuries he suffered have made him unable to work.

In the face of respondent’s averments, applicant did not file an answering affidavit. The purpose of an answering affidavit was stated in the case of Loveness Sengeredo v Eric Cable N.O. HH 32/08 where the court at p 2 stated that-

In my view, the purpose of an answering affidavit is akin to that of a replication in 	an action. It is filed not merely for the form but to specifically meet and traverse all 	the averments made in the opposing affidavit that have the effect of defeating the 	applicant’s claim. Like in any pleading filed with the Court, all issues that are not 	specifically denied and traversed in the answering affidavit are to be taken as if they 	have been admitted… It is my further view that answering affidavits, like all other 	affidavits, must be drafted with precision and must meet the sting of the defence being 	raised in the opposing affidavit.

The respondent’s version as presented in his opposing affidavit and the attached documentary evidence remains uncontradicted. It is not disputed. I accept his version.

Mr Ndlovu criticised the respondent for not telling the court whether he was employed prior to the accident. It is contended that he has not taken the court into his confidence on whether he owns any immovable property in Zambia. The sting of the criticism is that respondent has not been candid with the court about his means. It could well be a fair criticism, but it does not detract from the fact that respondent’s version has not been contradicted.

I take the view that the respondent has provided evidence sufficient to engage the discretion of this court, to consider whether on the facts of this case, he should be absolved from providing security of costs to the applicant in main action.

When exercising its discretion, the court will consider all the facts relating to the matter. I have chronicled respondent’s version. He suffered injuries in the accident. There is before court documentary proof of the injuries. He cannot work as a result of the injuries. He is legally represented by Legal Resources Foundation who provide legal services for free to indigent people. He is indigent. It appears to be that respondent is suffering hardship. He is in financial distress. Hardship to the respondent and his financial inability to provide security are factors the court has to factor into the equation, and I accept that such factors are not necessarily decisive. But they are relevant considerations.

When exercising its discretion the court will not inquire into the merits of the dispute. I do not intend to look into the merits of the dispute in the main action. However, I factor into the equation the procedural steps that have been taken in the main action. I take into account that applicant issued his summons on the 11 January 2018. Approximately a year later the parties have attended a pre-trial conference. The pre-trial conference minute was filed on the 18 February 2019. The main matter is most probably awaiting a set-down date for trial. This application was filed on the 20 march 2019.

My view is that, by not demanding security of costs, immediately upon being served with the summons, applicant lulled the respondent to believe that no security of costs shall be required in this matter. To turn around and demand costs when the matter is awaiting set-down date for trial, in a case where the respondent is indigent, is an injustice to the respondent. I also take into account that applicant is a company that owns buses. Surely, in terms of financial muscle, it is on a different footing as compared to respondent.

Applicant contends that it will have no recourse to recover its costs in the event that it is successful in the main action. It argues that it will suffer great prejudice if the court where to exercise its discretion and not grant an order of security of costs. My thinking is that, what applicant is alleging are ordinary consequences that afflict a litigant who has been denied an order of security of costs.

According to the applicant, the respondent’s reasoning is that because of the injuries he sustained in the accident involving applicant’s bus, he is unable to work and raise the required security of costs. It is contended by applicant that respondent seeks to proffer as his excuse for not providing security of costs, the injuries sustained in the accident, which injuries are an issue that is in dispute and was referred to trial for determination in the main case. I do not agree.

I have seen the declaration and the plea filed by the parties in the main matter. In paragraph 4 of the declaration, respondent alleges that he was involved in a road accident while he was travelling in applicant’s bus. In its plea paragraph 2, applicant admits the allegation made by the respondent. I have also seen the joint pre-trial conference minute, applicant’s injuries have not been put in issue. The injuries are admitted, what is put in issue, is negligence and damages.

By alluding to the declaration, plea and joint pre-trial conference minute, I am not dealing with the merits, but merely alluding to what is on record before this court. A court is entitled to refer to its own records and proceedings and to take note of their contents. See Mhungu v Mtindi 1986 (2) ZLR 171 (SC) at 173A-B.

In such a case, a court should have due regard to the particular circumstances of the case and considerations of equity and fairness to both the applicant and the respondent. In considering whether to absolve the respondent from furnishing security of costs, the court will consider the relevant facts of each case- it is a matter that has to be decided on a case by case basis.It is a balancing act.

Taking into account the factual matrix of this case, I take the view that applicant is merely trying to wade of the claim and use this application as a weapon of defence bent on preventing conclusion of the main matter on the merits. I am of the view that the justice of the case requires this court to absolve the respondent from furnishing security for costs in the main action.I take the view that this is a case where the court has to exercise it discretion in favour of the respondent.

I have considered all the facts relating to this matter, and I am of the view that applicant has not discharged the onus of showing that it is entitled to the relief it seeks from this court. In the result, the application must fail.

This is not a case where an order for costs should be made. The respondent did not ask for costs, even if he had, I would not have been inclined to make such an order in his favour. In these circumstances, justice and fairness require that neither party should be burdened with an order for costs.

Disposition.

In the result, I order as follows:

The application is dismissed. There shall be no order of costs.

R. Ndlovu and Company, applicant’s legal practitioners

Legal Resources Foundation, respondent’s legal practitioners