Calisto Mujera versus Javelin Trading (Pvt) Ltd and Casten Suwedi

### Preamble
1
HH 545 - 25
HC 1791/23
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CALISTO MUJERA

versus

JAVELIN TRADING (PVT) LTD

and

CASTEN SUWEDI

HIGH COURT OF ZIMBABWE

MHURI J

HARARE; 20 March & 15 September 2025

Civil Trial

Mr L Ndoro, for the Plaintiff

Advocate Nyamakura, for the Defendants

MHURI J:

As a result of injuries sustained on the 26th April 2020, plaintiff caused the issuance of summons against both defendants claiming both special and general damages in the amount of US$330 000.00 or its ZIG equivalent which damages arose from a shooting incident at Gwebi South Farm, Nyabira when he was shot by second defendant who was acting within the course and scope of his employment as a security guard of the first defendant.

At the commencement of the hearing by consent the claim was amended to                    US$331 590.00 as a result of the substitution of US$2 744.00 with US$4 334 for loss of earnings.

The issues referred to trial were:-

whether or not plaintiff was negligently injured by the second defendant.

whether or not the plaintiff was shot in the act of carrying out a theft from the first defendant

whether or not the defendants are jointly and severally liable for the injuries suffered by the plaintiff.

whether or not the defendants are jointly and severally liable to pay both special and general damages to the plaintiff, if so, the quantum thereof

Costs and the scale thereof.

Plaintiff opened his case and gave evidence to the effect that on the 26th of April 2020 at around 1900 hours as he drove his son Calisto Junior to Gwebi College along a gravel road which passes through first defendant’s field, he saw a fully loaded tractor with maize cobs in defendant’s farm. He decided to alert Jabulani Mhlanga who works for the first defendant. Whilst at Jabulani’s place, his motor vehicle started to overheat as a result he decided to return to his farm without reaching Gwebi College.

While on his way to his farm, he saw some suspicious movements in first defendant’s farm and decided to stop and investigate. He stopped by the roadside, about 2 metres from first defendant’s field where maize had been harvested for silage. He instructed his son to have a view of what was happening in the maize field. At the same time he decided to refill his motor vehicle which was overheating. When he was disembarking from his motor vehicle, he saw a torch light coming from the maize crop and the next thing he heard a bang and realized he was shot with a gun.

He shouted that he was a police officer to the person that had shot him. The person (second defendant) ran away. After being shot he fell down and became unconscious. When he regained consciousness he then realized that he was bleeding profusely from the back. He could not feel his leg, was dazed and confused. He called for his son who had gone into hiding.

He testified further that there was 50 or more metres of bare ground from where his motor vehicle was to the maize crop. There was no warning shot given, all he saw was a light and heard a bang. He was not stealing any maize as alleged by the second defendant. He never had any buckets and never entered the maize fields. He never hid any maize under a tree as alleged because by then he was in a dire state after he had been shot. He was assisted by his son to seek help from neighbours. He was eventually driven to Gwebi Clinic by a neighbour and later to Parirenyatwa Hospital where he stayed for almost 2 weeks and later to Chikurubi Police Hospital. He stayed at Chikurubi Hospital for about 2 months.

He testified that the injury he sustained was caused by shrapnel lodged in the spinal vertebrate causing disability of the lumbar section. He produced the medical reports as exhibits 2a to e. He summarised that these reports state that he lost function in the lower part of the body starting from the back to the toes. As a result, he can no longer do work as he used to or normally, neither can he walk properly due to lack of balance and strength.

Upon assessment by medical doctors at Parirenyatwa Hospital, it was indicated that the injury was permanent and he was to live on pain killers.

He testified that second defendant was negligent as he did not ascertain whether he was stealing or not but just shot him while he was disembarking from his motor vehicle. He never fired any warning shot before shooting at him. He was not running away nor defy any cooperation for him to effect an arrest on him.

He explained that second defendant was employed by first defendant as a security guard at Javelin Farm owned by first defendant and therefore first defendant is vicariously liable for the actions of second defendant.

He justified his claim for US$331 590.00 stating that he incurred medical expenses at Parirenyatwa Hospital, paid for scans done at private hospital, laboratory tests and pain killers recommended for the rest of his life. He tendered into evidence exhibit 3 which is an invoice for scans taken on assessment of injuries. The amount being RTGS 15 000.00. Exhibit 4 costs incurred in the amount of RTGS8 625.51. Exhibits 5 (i) and (ii) US$36.00 per month for pain killers, transport costs US$2500.00 to and from Radiology Centre and back to Chikurubi Hospital. To Chikurubi Hospital from Nyabira twice a month at US$40.00 a trip Exhibit 6. He also claims loss of salary for 11 months at US$175.00 and RTGS 23 957.66. Exhibit 8 being the payslip for March 2022.

He also claims for loss of farming earnings the sum of US$37 855.00. He explained that his residence that is, Plot 9, is a farming plot where he farms different crops, namely maize, groundnuts, soya beans, vegetables, cabbage, lettuce, rape. When he was shot and hospitalized nobody could tender these crops and he suffered loss due to lack of care. He contacted Agritex Officers who came and assessed the loss and concluded that 2114 plants of rape were damaged due to moisture stress. This was 100% damage. He was going to realise RTGS 42 300 from 4228 bundles, 6675 cabbages 100% damage due to moisture stress total US$3 337.00. Lettuce 375 plants 100% damage – US$375.00 loss. These were tendered as exhibits 9 (i) and (iii). As for maize he tendered as exhibit 10 (i) – (iii) receipts from the Grain Marketing Board. As per receipt No. 598364, he sold to the Grain Marketing Board 3320kgs of maize on 21/9/2018 and as per receipt No. 4321, he sold maize with net weight 3320kgs.

He testified that for the vegetables, he used to grow three times per year and he lost 2 years from the time of shooting to filing of summons. He lost 6 seasons. He did not give the amount lost submitting that this can be worked out from the 2 years he lost. As for the maize, he testified that he lost 2 years from the time of shooting to the time of filing summons. He used to produce maize once per year at 8 tonnes per year and for 2 years, he lost 16 tonnes. Some of the maize he sold to GMB and some direct to the market. He sold it for US$270 per tonne.

As regards general damages, it was his testimony that for shock, pain etc, he is claiming US$11 000. After being shot he went through severe pain, shock, hallucinations, psychological trauma and emotional trauma. After being shot he soiled himself and could not control his bladder, as a result he was inserted a catheter to assist in urination. He developed side effects as a result of the catheter namely passing urine with blood, suffered from constipation, lost desire for sex, could not sleep comfortably because of the foreign bodies in his body, cannot sit or stand without assistance. He now lives on pain killers and for him to undertake any work or activity like sitting in court, he has to overdose himself as a single dose cannot sustain him. He has to be assisted to go to the toilet and if it takes time for him to be assisted he soils himself and further he has to use a chamber in his bedroom. He was discharged from his employment. He cannot do any profitable work to sustain his family. He is now redundant as he lost function of his limbs, lost balance, most of the time he is sleeping as such there is loss of exercise.

For the claim of loss of amenities, plaintiff substantiated it by testifying that he lost desire for sex and yet he is a married man, and this will cost him his marriage. He cannot associate with others for example, church, funerals or weddings. He even failed to attend his mother’s funeral. For him to do so he needs assistance in the form of a nurse aide and transport to ferry him to and from.

As for future medical expenses, he stated that he needs assistance for most of his daily things. He needs a nurse aide and requires US$200 per month for physiotherapy – the charges keep changing. He would need to have surgeries done to remove the four pellets imbedded in his body. He needs regular blood pressure checkups because of emotional and psychological stress. He still needs to buy painkillers as he still needs to use them until the surgeries are done. He uses US$36.00 per month on painkillers as he uses them on a daily basis and can’t live without them.

For future earnings from employment and farm, he claims US$103 900. He based the claims on the fact that when he was in formal employment, he was discharged when he was 43 years of age and was to retire at 50 years. He lost 7 years of monthly salary. As for farming he stated he has lost the ability to farm on his own and if he is compensated he will be able to hire. He also has lost on veterinary nursing as he was earning money from part time veterinary nursing.

He also claims US$15 000 for future transport because for him to move from point A to B he needs transport. With crutches he can only walk 100 metres. The bus stop is 4km away so he needs transport to go to church i.e 4 times a month, medical checkups depends on the Doctor, church is US$100 per month. To town US$40 to 50 per trip. He needs transport for school visits and attending farm workshops. He testified that at the time of shooting he was off sick having leg problems, the legs were swollen, he could not walk properly or run.

He concluded his evidence by stating that as a result of the shooting, he suffered humiliation and embarrassment at work and society as it was reported in the local newsday paper that he was shot whilst stealing maize. Relatives started to shun him. His life expectancy has been shortened. The remedy lies with the court granting his claims of US$331 590.00 he prayed.

Under cross – examination, plaintiff confirmed that he was shot at the back and that he was about 50 metres from the maize crop, in an open space but the second defendant was in the maize field. He maintained that he was shot as he was disembarking from his motor vehicle and not running away. He confirmed that he and his son were arraigned before a criminal court in Norton for theft but were acquitted. He denied that his failure to sue the police for unlawful arrest was because the arrest was not unreasonable. He still intends to sue. He denied that he was seen in the maize field by the second defendant maintaining that he never moved from where he was shot at, beside his motor vehicle and the driver’s window was shattered and there was blood. He denied being found with maize cobs and that there was a trail of blood from the maize field.

He maintained his version that second defendant did not fire any warning shot and that S Shambare, the first defendant’s manager testified before the criminal court that he only heard one shot.

He maintained that he was claiming damages for the injuries caused by the defendants vicariously.

Under cross – examination in respect of the quantification for the damages being claimed, plaintiff admitted that his last month of work was March 2022. He was shot in April 2020 and was paid his salary up to March 2022. He admitted that the evidence he produced does not show medical expenses up to US$3 000.00, and that except for Pharmacy it does not show the payments made were in US$. He confirmed that he did not tell how much was covered by his medical aid. He maintained that he was using the same transport operator by the name Thomas Mushanda. He admitted though that the receipts do not give the sum he is claiming. He stated that nothing was paid by the police for his discharge on medical grounds. He admitted that he did not produce any expenses that go beyond 2022 and that he did not produce proof of the procedure he requires and the estimated cost.

As regards crops, plaintiff confirmed that the Agritex reports were done on 30/10/2020 i.e. 7 months after the shooting. He stated that when he was in full time employment he was assisted by his wife and hired labour would attend to his crops.

He reiterated that the defendants should pay him a lump sum so that he starts his own business. The period covered for future earnings is 40 years according to his generational genes, he submitted.

Plaintiff in my view was a reliable and credible witness. He gave his evidence well, did not exaggerate when he was being cross examined neither was he shaken. He admitted and did not deny where questions were put to him about the lack of proof to substantiate some of his claims. Plaintiff then closed his case.

After plaintiff, defendants opened their case. The defence’s opening statement was to this effect: - that plaintiff’s claim is to be dismissed for 3 reasons, to wit,

That the law does not compensate for losses suffered in the commission of an offence. The acquittal in the criminal case does not bind this court as it means, the state merely failed to prove its case.

The conduct of second defendant was reasonable and justifiable in the circumstances.

The facts as investigated by the police and consistently testified by them established that plaintiff has no case and if he does; the quantum that he seeks is way out of touch.

The defendants’ first witness was Maureen Mudzinganyama who is a Sergeant in the Police Force and based at Nyabira Police Station. She testified that on the night of 26th April 2020 she was on night duty as the member in charge when a report of a shooting was made by one Clever Ngaaseke, a security officer at a certain farm. As a result, she in the company of other officers attended the scene. It was around 2300 hours.

At the scene she observed some shattered glasses, blood stains and red slippers in the field, about 5 metres from the road. At the scene, she met second defendant who told her he had shot the plaintiff. The motor vehicle was about 1km away. She observed some shattered glasses and blood in the motor vehicle. In the boot were 2 maize cobs and maize shells. In the field they saw an empty black bucket. She testified that she never worked with plaintiff as he was on sick leave when she was seconded to Nyabira Police Station in March 2020.

Under cross examination she confirmed that plaintiff and his son were charged with theft. She could not comment or answer certain questions indicating that she only attended the scene and that the questions would best be answered by the officer who did the investigations. She denied giving evidence to support defendant stating that she had nothing against plaintiff. She maintained that since it was at night she could not physically count the maize cobs which had been plucked off but the officer who revisited the scene did. She only could not categorically say plaintiff was stealing, she was only told by second defendant.

This witness also gave her evidence well. She did not try to nail plaintiff by giving evidence of what she did not witness. She was not shaken under cross examination.

The next witness for the defence was the second defendant himself. He testified that he is a security guard and had been so for 5 years. On 26 April 2020 he was stationed at Javelin Farm at Gwebi College. He commenced his duties of patrolling the farm at 6pm. He then observed a motor vehicle coming from the direction of the stands at the back of the farm and it stopped at the gate. He then heard voices of people saying he is there. He then saw the motor vehicle going towards where it had come from and when it was near him, he went into maize field as the motor vehicle lights were now torching him. The motor vehicle stopped and dimmed its lights, the door was opened. He then heard the occupants disembark from the motor vehicle with buckets. They were 3 of them, they got into the field and started harvesting maize. He was shocked at this. He further testified that he was about 50 metres from where the motor vehicle was. The motor vehicle was in the middle of the harvested field and not the unharvested field. He testified that he saw the people take the maize to the motor vehicle, off loaded it and came again into the field. One of them started going to where he was and he then torched him and he screamed. He was a younger person wearing a shirt written number 1 on the chest. He then fired in the air ordering him to stop but he kept on running. He loaded the gun and aimed towards the motor vehicle wheel. He fired a shot at the wheel and he heard a scream, “you have injured me”. After this, he came out of the maize field and ran to the cabins to seek assistance as he realized he could not assist the person who was crying for help alone. He saw his manager Steven Shambare and Jabulani Mhlanga came and notified that Calisto Mujeri had been shot. He stated that he did not return to the scene but went to Gwebi College to collect some security guards. At the scene, the motor vehicle was no longer there but was at the end of the maize field facing settlers plot. He then went to Nyabira Police Station to make a report where he surrendered the gun and 2 shells he had used. When back at the scene, he observed glasses and blood. He denied that plaintiff was shot at point far from the field. He denied that he flashed his light and then shot at plaintiff. He maintained that he fired a warning shot first.

Under cross examination, he stated he had experience because he had been trained on how to hold a gun and how to use it when in public when he was working at Glen Avon Farm in Bromley. He denied that on the day in question, plaintiff was investigating as there was no tractor that came to the field. He denied shooting at plaintiff without ascertaining whether he was stealing or not. He reiterated that he fired a warning shot first, and that was the only communication he did.

From the second defendant’s evidence, one is left wondering what exactly happened on the day in question. He did not give a straight forward narration of what really happened. Some of his evidence particularly on what happened when he saw the plaintiff’s car and what the occupants did when the car stopped. At one point he says he saw 3 occupants disembark, had buckets, went into the field, filled buckets and offloaded in the motor vehicle and when they came for the second time, he shone his torch and saw one younger person, who fell down. He does not say anything about the third person. He does not say anything about the 3 buckets only to say next day police told him about one bucket. He further stated that after firing a warning shot, he then aimed at the motor vehicle wheel whereupon plaintiff could have crossed and was shot in the process and on the other hand, he said these 3 people were running away when he fired the warning shot. My assessment of this witness is that he is not a truthful witness. In one breath he would remember what happened and when cornered, he would state that due to lapse of time he cannot remember. At one time he gave 3 different versions of what happened and it was brought out under cross examination, the differences in his evidence before this court and the evidence he gave in the Magistrates Court.

He, in my view was not a credible witness. He goes away after shooting and when plaintiff was calling out for help indicating to him that he had shot and injured him. I am not inclined to believe him when he stated that he fired a warning shot and shot at plaintiff while he was running away. I find the evidence of the plaintiff more credible than that of the second defendant.

Pursuant to this, the issue to be determined is whether the defendants were negligent. The case of Kruger vs Coetze 1966 (2) SA 428 at page 430 E – G sets the standard as follows: -

“E for the purposes of liability culpa arises if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, and F would take reasonable steps to guard against such occurrence and the defendant failed to take such steps.”

In the case of United Bottlers (Private) Limited v Shambawamedza 2002 (1) ZLR 341 (S) at 346 C – F it was stated;

“It has been said that negligence is a question of fact and the onus of proving it is on the party alleging it. A person is negligent if he did not act as a reasonable man would have acted in the particular circumstances. He will be held liable for the actual consequences of his negligence which are reasonably foreseeable.”

See also City of Harare vs Evaristo Mungate SC 86/22.

Malaba JA (as he then was) in the United Bottlers case (supra) cited with approval case of Capetown Municipality vs Paine 1923 AD 206 at 216 – 7 in which Innes CJ has this to say: -

“It has repeatedly been laid down in this court that accountability for unintentioned injury depends upon culpa – the failure to observe that degree of care which a reasonable man would have observed………….every man has a right not to be injured in his person or property by the negligence of another – and that involves a duty on each to exercise due and reasonable care. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias the duty to take care is established ………………”

In casu, it is not in dispute that second defendant was confronting people though he had not identified who they were. According to his evidence, he saw 3 people he lit his torch and identified one who had a T - shirt. This person fell down, started running away, he fired a warning shot and he aimed his gun at the motor vehicle and fired another shot which hit plaintiff.

Second defendant did not shout at the person to stop. He aimed at the vehicle without ascertaining whether there were any people there. His evidence that plaintiff could have been shot by the bullet when he crossed its path is totally incredible. A reasonable person exercising due care would have foreseen that aiming at the motor vehicle he was likely to hit a person. I find therefore find that second defendant was negligent and his negligence caused the plaintiff to sustain the injuries which left him disabled.

First defendant chose not to lead any evidence in defence to plaintiff’s claim. It is therefore taken that he is not contesting the claims. It is not in dispute that second defendant was or is in first defendant’s employ at the relevant time. He was employed as a security guard with no special training on how to handle guns. He had been so employed by first defendant for one year. He was supplied with a gun by first defendant. His duties were to protect the farm and paddock against theft of cows. On the night in question he was on duty and not on a frolic of his own. Can vicarious liability be imputed on the first defendant in this case? In my view, considering what I have stated above, the answer is in the positive. First defendant chose not to defend this case, it was the employer, supplied the gun to second defendant who had no professional training on the use of guns. Employed second defendant for duties which required the use of a gun. Second defendant was on duty when he shot at the plaintiff, moreso when there was no proof that plaintiff was stealing. In the circumstances, first defendant is liable for the second defendant’s actions and the resultant injuries suffered by plaintiff.

As regards damages, plaintiff claims:

Special damages, namely;

Medical expenses (exhibits 3, 4, 5(i) – (ii): US$1534.00

being RTGS 15 000 translating to US$600 at May 2020 bank rate

RTGS 8625.51 translated to US$106 at September 2020 bank rate

US$828.00 as per receipts Exhibit 5(i) – 5(ii)

Transport Expenses (Exhibit 6)

Car hire US$1200

Salary Earnings (Exhibit 8)

RTGS 29 385 and US$175

RTGS translated to US$ at bank rate applicable on 16 March 2022 = US$219

= US$394pm x 11 months

= US$4334.00

Farm Earnings (Agritex Assessment reports exhibits 9(i) – (iii)

rape US$494.11 per season

cabbage US$3337.50 per season

lettuce US$375 per season

Total US$4206.11 for the 3 crops

Per season = US$12 616.33

For 2 years = US$25 232.66

Maize US$270 per tonne and for two years US$1620.00

Total from farm earnings US$26 943.66

As regards General Damages: -

Trite is the legal position that general damages are not a penalty but compensation.

See the case of Minister of Defence & Anor vs Jackson 1990 (2) ZLR 1 (S) in which it was stated;

“General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer. Compensation must be 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 considerations.”

See also the case of Johnson Muchechesi v Kevin Musimwa HH 64/24 in which the court was guided by the above principles when it was to assess the damages.

Plaintiff in casu, gave evidence in support of the damages he was claiming. As regards special damages he substantiated his claim with proof of expenses through receipts, reports produced as exhibits. I have no reason not to grant them. Plaintiff is therefore entitled to a total of US$33 920.66 as special damages.

As regards general damages, as alluded to, these are not meant to punish the wrongdoer but to compensate the plaintiff. As stated in the case of Johnson Muchechesi v Kevin Musimwa (supra) in assessing the damages, the court is alive to the fact that it will be exercising a discretion, which should be judiciously exercised.

Common cause is the fact that plaintiff sustained injuries as a result of the shot. He is claiming an amount of US$110 000.00 for shock, pain and suffering, discomfort, disablement and shortened life expectancy.

After being shot, it was plaintiff’s evidence that he lost consciousness, he soiled himself, he stayed at the scene for about an hour with no help at all. He was then later ferried to a local clinic where he got no help and later ferried to Parirenyatwa Hospital where he was attended to and at that time he was in severe pain. He was given some high class drugs for pain which would make him sleep. He stayed at Parirenyatwa Hospital for about 2 weeks. From Parirenyatwa he was transferred to Chikurubi Police Hospital for further management and physiotherapy where he stayed for 2 months. Medical reports stating the injuries sustained and their effect were produced and admitted as exhibits 2(a) – (e) particularly the medical report by Dr Unworried Othilia who attended to plaintiff on the 27/4/20 observed, “injuries per x ray shrapnel lodged in the lumbar vertebrae penetrating spinal injury, paraplegic”. He still has fragments lodged in his body.

As at the 19 July 2022 the neurosurgeon Mr Dzowa who attended to plaintiff assessed that “Plaintiff lower limb function had improved and is now able to walk with the use of a walking aid. He has residual weakness, altered sensation of the lower limbs, backache and is unable to drive. He however has normal cognition and function of the upper limbs. Considering the time that has elapsed since injury, chances of significant improvement are now very low. He remains under our care and will be receiving physiotherapy and pain medication.”

In view of the above, it is my considered view that the sum of US$10 000.00 will be just and reasonable. See the case of Johnson Muchechesi v Kevin Musimwa (supra) wherein the plaintiff therein suffered the same injuries and effects. In the same case, the plaintiff lost all sexual desire, and he was awarded US$2 000.00. In casu, it will be reasonable to award US$5 000.00 for loss of amenities.

As for future medical expenses, save to state that he will need surgery to remove the shrapnels lodged in his body outside the country, plaintiff did not produce any document showing the cost. Further he has not submitted any proof of the loss of future salary earnings save to pluck a figure of US$50 000.00. To say I will reach a certain age because of my genes is not proof enough I will not grant future transport expenses as these have not been proved.

In total therefore plaintiff is awarded the sum of US$48 920.66 as damages to be paid by both defendants one paying the other to be absolved.

Mhuri J: ……………………………………………….

Thondlanga & Associates, plaintiff’s legal practitioners

Deoitte Rudolph & Timba, defendants’ legal practitioners