Peter Dube v Adolphous Dube

HB 152-25
HC 298/19


PETER DUBE

versus

ADOLPHOUS DUBE

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO; 5 July 2022, 6 July 2022, 14 November 2022, 15 November 2022, 31 October 2023, 9 February 2024, 2 July 2024, 12 July 2024, 3 September 2024, 4 September 2024, 21 November 2024, 2 December 2024 & 9 September 2025

Civil trial

N Mazibuko for the plaintiff

J Tshuma for the defendant

DUBE-BANDA J:

[1] 	The plaintiff sued out a summons against the defendant claiming delivery of 120 heard of pedigree brand cattle, failing which payment in the sum of USD$87 000.00 with interests at the prescribed rate; delivery of 5 x 50kg rolls of barbed wire; 14 x 25 kgs rolls of barbed wire; 20 x 7.2 meter angle iron bars; 10 bags of cement; 1 set of steel trusses; failing which payment of the value as at the date of judgment; payment of USD$2 200.00 being the cost of extra feed and ancillaries; and any further costs to be incurred in future.

[2]	 In summary, in his declaration, the plaintiff avers that in 2015 he purchased ten head of bullied heifers pedigree cattle from the defendant in the sum of USD$800.00 each. In 2016 he purchased ten more bullied heifers pedigree cattle for the sum of USD$650.00 each. Payments were made in United States dollars. It is averred that the plaintiff purchased fencing and building materials for the purpose of demarcating and constructing a separate paddock for his cattle at the defendant’s farm.  It is averred that the parties agreed that the plaintiff’s cattle would be expected to calve every year.

[3] 	It was further averred that on 30 October 2018 against plaintiff’s protestations the defendant picked out a motley collection of 35 animals which included very old non-pedigree, non-cattle and calves which were in very poor condition.

[4]	 It is contended that the twenty original bullied heifers would have procreated for every year from 2016 to date of delivery in October 2018 bringing the total to eighty. The first batch of twenty heard of cattle and offspring from 2016 would have calved in 2019 bringing the total due to plaintiff to one-hundred and twenty. The plaintiff tenders the return of the surviving cattle received from the defendant and claims delivery of one-hundred and twenty pedigree brand cattle being the original twenty and one hundred offspring, failing which plaintiff seeks a payment of USD87 000.00 being the value of the one-hundred and twenty pedigree cattle.

[5]	 In the alternative, the plaintiff averred that the agreement be cancelled and he be refunded USD$14 500.00, the amount he paid for the bullied pedigree heifers, in addition payment of damages in the sum of USD$72 500.00 being the value of the offspring that could have been obtained from the original twenty bullied pedigree heifers.

[6] 	In his plea, the defendant averred that the plaintiff first purchased ten commercial heifers which were running with bulls. He purchased further ten commercial heifers. It was disputed that plaintiff purchased pedigree heifers. It was further averred that the defendant requested the plaintiff to remove his cattle from the defendant’s farm but could not do so because he had no place to accommodate them. Plaintiff never saw the cattle he purchased until October 2018. Notwithstanding that the plaintiff purchased twenty commercial head of cattle; defendant delivered an extra fourteen commercial heifers and one bull. It was disputed that the plaintiff is entitled to the claims he is seeking in this court. Defendant sought that the claim be dismissed with costs.

[7]	 In his replication, the plaintiff disputed that he purchased commercial heifers, but twenty pedigreed bullied heifers.

[8]	 At the pretrial conference before a judge the plaintiff sought and was granted an amendment to the summons and declaration. The amendment was occasioned by the change of monetary policies in the country. In addition, during the trial, Mr Mazibuko counsel for the plaintiff sought that the summons, declaration and any other pleading where the term “pedigree breed” appears be deleted and substituted with the term “pure breed beef master.” Mr Tshuma counsel for the defendant did not object to the amendment. In the result, I granted the amendment and couched it as follows: “The summons, declaration and any pleadings wherein the term “pedigree breed” appears, it is substituted with the term “pure breed beef master.”

[9] 	At a pretrial conference, the issues for trial were identified and delineated as the following:

What breed were the twenty heifers that plaintiff bought from the defendant?

Was the delivery and acceptance of the thirty-five cattle in full and final settlement of the contract between the plaintiff and the defendant?

If it was not, has the plaintiff suffered any damages and if so, what is the quantum thereof.

[10]	 The onus on issues (i) and (iii) are on the plaintiff, while the onus on (ii) was on the defendant. Consequent to the pretrial conference, the parties agreed to add a fourth issue for trial, whether the plaintiff is entitled to delivery of 14 x 25 kg of rolls of barbed wire and one bag of cement from the defendant. The issue of rolls of barbed wire and a bag of cement was resolved between the parties during the trial and no longer arises for determination.

[11] 	There is a dispute between the parties whether the issue of roof trusses is for determination by this court. On one hand, Mr Mazibuko argued that it is for determination, because in a letter the defendant’s legal practitioners said if the plaintiff wanted to reclaim the roof trusses he could collect them from the defendant’s farm. It was argued that there is no dispute that the plaintiff is entitled to an order of the return of the roof trusses, because he insists that they be returned. Further, it was argued that because the defendant reneged on the undertaking to keep the plaintiff’s cattle, the latter is within his rights to revoke the donation.  On the other hand, Mr Tshuma contends that it is not an issue for determination because it was resolved at the pretrial conference before a judge.

[12] 	The pre-trial conference order provides a roadmap for the management of a trial, in respect of issues for trial, onus, duty to begin etc.  One of the key purposes of a pre-trial conference is to delineate issues for trial, and to avoid a proliferation of side issues at the trial. See Addenbrooke & Anor v Gomez & Anor 2020 (2) ZLR 258 (H); Doelcam (Pvt) Ltd v Pichanick & Ors 1999 (1) ZLR 390 (H); Walktall (Pvt) Ltd v Tundiya HH-346-13. This explains the rationale behind a further pre-trial conference before a judge in terms of r 49(5) of the High Court Rules, 2021. This is to ensure that the issues for trial have a stamp of judicial authority, by means of a court order. Any departure from the pre-trial conference order must be sanctioned by an order of court. It is not for the trial court to start determining issues that do not arise from the pre-trial conference order. If a need to amend a pre-trial conference order by the addition of further pre-trial issues arise, such must be done by application.  It will be irregular and contrary to the spirit and scheme of r 49 for the trial court to start determining issues that do not arise from the pre-trial conference order. In casu, the plaintiff sought to introduce an issue that is not in the pre-trial conference order. In fact, this issue of roof trusses was raised for the first time in written submissions. It is for these reasons that the issue of roof trusses is not for determination in this matter.

[13] 	I now turn to the three issues for trial as delineated in the pre-trial conference order. The first is about the breed of the twenty heifers plaintiff purchased from the defendant.

What breed were the twenty heifers that plaintiff bought from the defendant?

[14]	 In the summons and declaration, the plaintiff contended that he purchased from the defendant a herd of pedigree cattle. It was during the defendant’s case that he sought an amendment to replace ‘pedigree’ with ‘pure beef master cattle.’  As stated above, the amendment was granted.   The plaintiff bears the onus to prove that he purchased from the defendant heifers of a ‘pure breed beef master.’

[15] 	The plaintiff’s evidence was that one Bulisani Tshuma (“Tshuma”) referred him to the defendant as a breeder of beef master breed of cattle. He testified that he contacted the defendant, who confirmed that he was a breeder of beef master breed. At their meeting, the defendant suggested a price of USD1 000.00 per animal, and that is when the plaintiff testified that, “I told myself that I was buying a special breed of cattle.” During the negotiations, the defendant reduced the price of each animal to USD$800.00. The plaintiff testified that is when he bought the first ten heifers which were in calf or bullied at a price of USD800.00 each. On the second occasion he bought a further ten bullied heifers at a negotiated price of USD650.00 each.

[16] 	Under cross examination, the plaintiff testified that the receipts he got from the defendant did not specify the breed of cattle he was buying. However, he insisted that he was buying pedigree cattle. On further cross examination, he testified that he did not buy pedigree heifers but beef masters. He confirmed that at the time he made the payment, he had not seen the animals he was buying. At some time, though he could not remember the exact date, he was taken to the farm and shown the beef masters, but not the ones that he had bought, as the ones he bought were out to pasture.

[17] 	The defendant disputed that he sold beef masters to the plaintiff. His evidence was that in 2015 he bought ten beef masters from South Africa. In 2016 he bought another twenty and in 2017 he bought twenty-five, making them fifty-five. These were pedigree beef-master cattle and were for breeding purposes to produce bulls. The animals he bought from South Africa could not be sold within three years of purchase. He also had a commercial head of more than two-hundred cattle. His evidence was that he sold twenty commercial heifers to the plaintiff.

[18] 	Under cross examination, the defendant testified that he started dealing in beef masters towards the end of 2015 to beginning of 2016. When put to him that by August 2015 he was already a beef master breeder, his answer was that he had bought these animals from South Africa and was not allowed to sell them before the expiry of three years. He sold commercial heifers to the plaintiff. He could not have sold pedigree beef masters costing USD2, 000. 00 each for USD$650.00 each. It was put to him that he sold pure breed beef masters, his answer was that the USD$650.00 is a price for a commercial heifer, not a pure beef master.

[19] 	The evidence shows that the plaintiff was referred to the defendant by Bulisani Tshuma (“Tshuma”). In fact, according to the plaintiff it is Tshuma who referred him to the defendant as a breeder of beef master breed of cattle. In examination in chief, Tshuma was asked whether there was a special breed that the defendant deals with, his answer was no, all he knew was that he kept cattle at his farm. In addition, he said the defendant keeps commercial and pedigree breeds. He confirmed that he is one who referred plaintiff to the defendant, however he did not know the breed the defendant was selling. All he knew was that the plaintiff was looking for heifers and defendant was selling heifers. Later he asked the plaintiff whether he got what he wanted, and he answered in the affirmative. Under cross examination he said for one to sell a pedigree heifer for USD$800. 00 one must be desperate. He said he did not discuss with the plaintiff whether defendant’s heifers were pedigree, cross or pure. All he knew was that the defendant was selling heifers. In re-examination he was asked whether he knew the breed of heifers the plaintiff purchased from the defendant, he said he did not know.

[20] 	Tshuma was the plaintiff’s witness, therefore his evidence is the plaintiff’s version. The net effect of it is that the plaintiff has two mutually destructive versions before court. On one hand, his version is that it was Tshuma who informed him that the defendant was a breeder of beef master cattle. On the other hand, Tshuma denied this assertion. He denied that he informed the plaintiff that defendant was selling heifers of a pedigree or pure beef master breed. In fact, the evidence of Tshuma placed the plaintiff’s case on slippery ground. Mr Mazibuko realized the negative impact the evidence of Tshuma had on the plaintiff’s case. I say so because at some point in the evidence in chief of Tshuma, Mr Mazibuko appeared to be cross examining him and even informed the court that he was considering applying for his impeachment. In addition, he subtly tried to remind him of the discussion they had during consultation. However, Tshuma maintained his version. In his written submissions, Mr Mazibuko contends that “Tshuma clearly became somewhat hostile to the plaintiff’s case, clearly as a result of his close friendship with the defendant.” There is no evidence that Tshuma became hostile and that he is a close friend with the defendant.  However, what is clear is that a closer scrutiny of Tshuma’s evidence is that it corroborates the defendant’s case.

[21] 	In addition, it is important to note that in his evidence in chief the plaintiff did not categorically state that there was an agreement between him and the defendant concerning the breed of heifers he was buying. It was the price that made him believe that he was buying a special breed of cattle. It was in cross examination that he said he was buying a pedigree breed, which he later changed to a pure beef master breed. Further, he did not say the parties agreed on pure beef master breed. The plaintiff’s case is further imperiled by the fact he was neither shown nor were the cattle pointed out to him until October 2018 when he collected the thirty- five herd of cattle.

[22] 	The evidence of Thadeous Ndlovu (“Ndlovu”) that the plaintiff sold him his indigenous breed and informed him that the reason for the sale was that he (plaintiff) was buying beef masters which had been bullied amounts to previous consistent statement and thus irrelevant and of no probative value. I will deal with this issue later in this judgment. In any event, the plaintiff did not get indigenous cattle from the defendant, but a breed called cross brahman.  I say so because Tshuma testified that from his observation the plaintiff collected heifers of a breed called cross brahman, and he said this was confirmed by the veterinary officer who was present when the cattle were collected. Therefore, the plaintiff sold his indigenous cattle to get a different breed, but there is no evidence that he bought a pure beef master breed from the defendant.

[23] 	In the circumstances, the plaintiff has not proved on a balance of probabilities that he bought a pure beef master breed from the defendant.

Was the delivery and acceptance of the thirty-five cattle in full and final settlement of the contract between the plaintiff and the defendant?

[24] 	The onus is on the defendant to prove that the plaintiff received the thirty-five cattle in full and final settlement of the dispute.

[25] 	The plaintiff testified that Tshuma and Ndlovu pleaded with him to accept whatever the defendant offered and complain later. He was given twenty cows, fourteen winners and one bull. He said the calve which was almost a bull was like a beef master. One was a brahman and the rest were just rural cattle. His evidence was that he merely accepted the thirty-five animals with a view to complain later.

[26] 	According to the parties a dispute arose as to the number of cattle the defendant was to deliver to the plaintiff. The plaintiff argued that his cattle had calved, and he wanted more than the twenty he purchased. While the defendant insisted that plaintiff bought twenty and that is the number he was going to deliver. This prompted mediation from Tshuma, Ndlovu and Mpofu. On 18 October 2018 the four, Tshuma, Ndlovu, the plaintiff and the defendant went to the defendant’s farm. At the farm, the plaintiff and the defendant were not directly taking to each other, it was Tsuma and Ndlovu who were leading the negotiations.  In fact, the plaintiff and the defendant were at a distance from each other. Tshuma and Ndlovu would first consult with one and then proceed to consult the other.  Finaly, it was agreed that the plaintiff be given thirty-five heifers. Tshuma testified that both the plaintiff and the defendant shifted from their original positions, i.e., wherein defendant was contending that only twenty animals were to be collected and the plaintiff arguing that his cattle were multiplying by twenty every year. It was agreed that the plaintiff be given thirty-five cattle.  Tshuma later suggested that the defendant exchange one heifer for a bull, which suggestion was agreed to. In the end, the plaintiff was given thirty-four heifers and one bull. The thrust of the defendant’s evidence is that the plaintiff accepted the thirty-five cattle in full and final settlement of the dispute. In fact, he testified that he was surprised by the turn of events when he received the summons.

[27] 	Under cross examination, Ndlovu testified that Tshuma insisted that the plaintiff must take the cattle and the other issues would be attended to after he had collected the cattle. He further said the plaintiff was not satisfied with the cattle collected from the defendant. Further, in his evidence Charles Mpofu testified that before the trip (he did not go the farm himself) to collect cattle from the defendant’s farm, he advised the plaintiff to take whatever he was offered and complain later.

[28] 	It might well have been in the plaintiff’s mind and those who negotiated a settlement between him and the defendant that he had to accept whatever the defendant offered and complain later. However, the challenge with this position, even if true, is that it was not communicated to the defendant. The defendant believed that by accepting the thirty-five animals, the plaintiff agreed to a compromise to end the dispute. It is immaterial that on his part the plaintiff was accepting the animals in protest to complain later, because such was not communicated to the defendant. In addition, Mr Tshuma’s evidence is that according to his observation the plaintiff was satisfied with the compromise deal. He only learnt after some days that the plaintiff was not happy.

[29] 	My view is that the parties agreed to a compromise which extinguished any legal relationship that may have previously existed between them. See Massey-Ferguson (South Africa) Ltd v Ermelo Motors (Pty) Ltd and Others 1973 (4) SA 206 (T); Van Zyl v Niemann 1964 (4) SA  661 (A) 671, 672. A compromise brings the dispute to an end and bars legal proceedings in respect of the original, or disputed cause of action. See Eke v Parsons 2016 (3) SA 37 (CC). To me the intention of the parties as expressed by their conduct was that the dispute had been compromised and no party was permitted to take the dispute any further.

[30]	 In the circumstances, the defendant has proved that the delivery and acceptance by the plaintiff of the thirty-five cattle was in full and final settlement of the agreement between the parties.

Disposition

[31] 	The final step in any trial is to determine whether the party burdened with the onus of proof has succeeded in discharging it. In this case there is a disquieting conflict between the plaintiff’s witnesses, i.e., Tshuma and Ndlovu regarding the events on the date of the collection of the cattle. According to Tshuma the dispute and negotiations centered on the number of cattle to be collected. While on one hand the plaintiff demanded eighty and the defendant was arguing that the plaintiff bought twenty and he must get twenty. However, Ndlovu testified that when they got to the farm, the defendant had already put aside thirty-five cattle, and the dispute was over the breed of the animals and their age.  The net effect of this conflicting evidence is that the plaintiff presented conflicting versions before court. It is self-defeating for a litigant to present conflicting versions before court.

[32] 	The other observation I make is that Ndlovu and Mpofu were in the main testifying on what they were allegedly informed by the plaintiff. For example, Ndlovu testified that the plaintiff informed him that he sold him (Ndlovu) indigenous cattle so that he could buy a real breed, a proper breed. He said the plaintiff said, “he bought beef masters which had been bullied.” Again, the evidence of Charles Mpofu on the issue of the breed was in the main turned on what he was told by the plaintiff. Such evidence is generally inadmissible as it violates the rule against the previous consistent statements. The general rule is that a witness is not allowed to testify that on a previous occasion, he made a statement consistent with his evidence in court. A previous consistent statement of a witness may also not be proved by calling another witness. This is what happened in this matter because these witnesses were merely repeating what they were told by the Plaintiff. In fact, it was synonymous with a plaintiff self-corroborating himself, which is impermissible.  This kind of evidence is excluded because of its irrelevance. It lacks probative value. See S v Mkohle 1990 1 SACR 95 (A) 99c-d. For completeness, there are exceptions to this general rule, for example a previous consistent statement is admissible to rebut a suggestion of recent fabrication, this is not the issue in this case.

[33] 	It is a trite position of the law that trials are about evidence. On a compactus of the evidence, the plaintiff has not proved on a balance of probabilities that he bought a pure beef master breed from the defendant. In addition, the defendant has proved that the delivery and acceptance of the thirty-five cattle was in full and final settlement of the agreement between the parties. In the circumstances, the issue of whether the plaintiff suffered any damages and if so, what is the quantum thereof does not arise for determination. It is for these reasons that the plaintiff’s case must fail.

Costs

[34]	 The question of costs remains to be considered. No good grounds exist for a departure from the general rule that costs follow the cause. The defendant is clearly entitled to his costs.

In the result, it is ordered as follows:

The plaintiff’s case be and is hereby dismissed with costs.

Dube-Danda J:……………………………………………………….

Calderwood, Bryce Hendrie & Partners, plaintiff’s legal practitioners

Webb, Low & Barry, defendant’s legal practitioners