Christopher Tichaona Kuruneri v Chida-Desmond Zimbabwe (Private) Limited and Michael Chivandire

### Preamble
1
HH 33/21
CASE NO. HC 590/19
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CHRISTOPHER TICHAONA KURUNERI

versus

CHIDA-DESMOND ZIMBABWE (PRIVATE) LIMITED

and

MICHAEL CHIVANDIRE

HIGH COURT OF ZIMBABWE

TAGU J

HARARE 13 January 2021

Civil trial

M Mswelanto, for the plaintiff

T Zinto, for the defendant

TAGU J: The plaintiff’s claim against the defendant is for-

Payment of US$12 000.00 being the damages for the actual loss of the plaintiff’s six (6) Brahman cattle which died after drinking from a cyanide pool.

Payment of an additional US$6 000.00 for damages for the four (4) Brahman cattle which died which were in calf.

Payment of US$182 000.00 being damages for prospective loss of income which the plaintiff would have realized from the six cattle which died had they reached their maximum breeding level.

Interest on the total sum of US$200 000.00 at the rate of 5% per annum from the date of summons to date of payment in full.

Costs of suit.

THE FACTS

The defendant carries on mining operations near the plaintiff’s paddock. It left unmanned, unprotected and unfenced mining pools with cyanide. On the 1st of August 2018 the plaintiff’s eight cattle entered the defendant’s mining location and drank from the defendant’s unprotected cyanide pools. Six of the cattle instantly died from cyanide poisoning. Two actually fell into the chemical pool soon after drinking from it and died. Four of the Brahman cattle were in calf. The plaintiff is claiming that the defendant was negligent in the manner it was carrying out its mining operations in that it constructed and operated dangerous chemical pools which were not securely fenced, closely monitored or supervised by any well trained personnel since the chemical pools were situated right next to a paddock of the plaintiff’s cattle. As a result of the defendant’s negligent mining operations the plaintiff suffered actual damages for the loss of the six cattle which died and also prospective loss of income which the plaintiff would have realized had the tragedy not occurred.

In its plea the defendant denied liability and alleged that it had no legal obligation to fence off its mining claim, rather the plaintiff being cattle owners have the onus to fence off their paddocks. It claimed that the damages suffered are self-inflicted as the plaintiffs have the obligation to make sure that their paddocks are well secured.

During the round table conference all the parties agreed that the second defendant should not be cited in these proceedings since he was just an employee of the 1st defendant. They further agreed that the plaintiff’s cattle drank from the first defendant’s cyanide pools which were not fenced and died as a result of drinking from the cyanide pools However, they did not agree whether or not the 1st defendant was obligated in terms of the law to fence off its claim.

Three issues for determination were agreed and contained in the joint pre-trial conference minute as follows-

“ISSUES

Whether or not the plaintiff’s cattle died as a result from drinking from the Defendant’s cyanide pool.

If any cattle died whether such death was caused by negligence on the part of the Defendant.

Whether or not the Plaintiff suffered damages and, if so, the quantum thereof.”

Three witnesses testified on behalf of the plaintiff and two for the defendant. I will briefly state what each witness told the court.

Weston Mandiya told the court that the plaintiff’s cattle strayed from a well fenced paddock to the defendant’s cyanide pools. He found six cattle having died. Four of them were inside the pools. Further he told the court that after skinning the cattle he noted that intestines and other inside parts of the cattle were broken into pieces and the flesh was not edible. All in all six of the plaintiff’s cattle died after drinking the water contaminated with cyanide. He further indicated that he saw four foetuses indicating that four of the cattle were in calf. He emphasized that had the defendant fenced its cyanide pools the loss of cattle would not have occurred. He then informed Mrs. Paidamoyo Kuruneri about the incident. Under cross examination this witness stuck to his evidence. He did not seek to exaggerate anything. He further did not seek to mislead the court as he admitted that he had no knowledge about the value of the cattle. All he know was that they were being reared for sale.

This witness struck the court as a very candid, credible and an employee with considerable experience at the plaintiff’s farm. I had no reason to disbelieve him.

Sinotile Mangezi is employed at the plaintiff’s farm as a driver. He was informed about the incident by Mrs. Paidamoyo Kuruneri and told to go and see what happened. He assisted in the skinning of the six dead cattle which he found at the defendant’s cyanide pools. He took samples for examination though the veterinary officer refused to examine them as he wanted to see the full carcasses. This witness like the first did not know the value of the cattle and he did not contradict himself during cross examination. I also accepted his evidence as the truth.

Mrs. Paidamoyo Kuruneri did not go to the scene. However, she is the wife to the plaintiff and had relevant information about the selling of the cattle. She told the court she is the one who conducts the cattle business at the farm. She gave the values of the cattle and told the court that the plaintiff’s claim is for both general and special damages. She produced exhibit 2 to the effect that a Brahman cow can breed 3 to 5 offsprings. This witness was clear that US$12 000.00 was the value of six Brahman cows, and US$6 000.00 for the cows that were in calf, and gave a figure of US$182 000.00 for the loss of prospective income given that the dead cattle had not reached full breeding capacity. She too stuck to her evidence during cross examination. She was not shaken.

Denford Chidawanyika told the court that he is a Manager at the defendant’s mine. However, he is usually not at the mine and he did not visit the scene. He confirmed that the plaintiff’s cattle are usually in a well fenced paddock and he indicated it was not their business to look after the plaintiff’s cattle. He further confirmed that the defendant’s mining pools are not fenced off. He however, denied that they use cyanide in their mining operations but failed to explain how they mine gold without the use of cyanide. Under cross examination he failed to explain why he was changing from the position he held during the parties’ round table conference wherein it was agreed that the cattle drank from the defendant’s cyanide pools. His was a mere bare denial of what happened and he appeared to be economic with evidence. He did not struck the court as a credible witness.

Sylvester Shatel was the second defendant’s witness. He said he was the defendant’s Milling Manager. He told the court that on the day in question he found the plaintiff’s dead cattle dead near the defendant’s dams and pits. He emphasized that they do not use hazardous substances like cyanide in the extraction of gold. Of importance he failed under cross examination to explain what the milling process entails. He further failed to explain what was in the defendant’s mining pools, failed to explain the glaring difference between his oral testimony and the summary of his evidence. Lastly, if they do not use hazardous substances he failed to explain what could have caused the plaintiff’s cattle to die at the defendant’s mining pools.

ANALYSIS OF CASE

The plaintiff’s case is well founded under the principle of the law of delict, that is, the Aquilian action. The plaintiff’s evidence is clear that his six Brahman cattle left his fenced paddock. They went to drink water from the defendant’s mining pools that are close to his paddock. The mining pools are not protected from animals and human beings. It is clear plaintiff’s six cattle died after drinking water from the defendant’s unprotected mining pools. The defendant denied liability. The defendant sought to rely on Section 189 of the Mines and Minerals Act [Chapter 21.05] which states as follows-

“189 Miner to fence mining location adjacent to pasture land

Where the owner or occupier of any land has fenced off a portion of such land for the purpose of depasturing stock, the mining commissioner may, on application by such owner or occupier, direct any miner who is carrying on mining operations within the area so fenced off, to fence off in the manner prescribed the whole or any portion of the mining location within such period as the mining commissioner may specify.

If the miner fails to comply with such direction within the period specified, the owner or occupier may himself fence off the whole of the mining location and may recover the cost thereof from the miner.”

The defendant in casu is saying it was the responsibility of the plaintiff to fence of the defendant’s mining location to protect his cattle. Be that as it may the court found that the cattle were in a fenced paddock. They broke out and went to drink from the defendant’s unprotected mining pools that had hazardous substances. The defendant does not deny that his mining pools were unprotected. Surely it is unfair to expect the defendant to go and open mining pools near paddocks, with hazardous substances, to leave them unprotected and expect other people to take the trouble of fencing of the miner’s mining locations.

The plaintiff in my view managed to prove on a balance of probabilities that the defendant was negligent in not fencing off his mining pools. It was reasonably foreseeable that the plaintiff’s cattle which were in a fenced paddock close to the mining locations of the defendant, may break out of the paddock, it being the nature of all animals, and may drink the water contaminated with cyanide. I therefore find the defendant liable for the damages claimed which have been proved on a balance of probabilities.

IT IS ORDERED THAT

The 1st Defendant be and is hereby ordered to pay to the Plaintiff US$12 000.00 at the prescribed rate being the damages for the actual loss of the Plaintiff’s six (6) Brahman cattle which died after drinking from a cyanide pool.

The 1st Defendant be and is hereby ordered to pay to the Plaintiff an additional US$6 000.00 for damages for the loss of four (4) Brahman cattle which died which were in calf.

The 1st Defendant be and is hereby ordered to pay to the Plaintiff US$ 182 000.00 being damages for prospective loss of income which the Plaintiff would have realized from the six cattle which died had they reached their maximum breeding level.

Interest on the total sum of US$200 000.00 at the rate of 5% per annum from the date of summons to date of payment in full.

Costs of suit.

Kuruneri law practice, plaintiff’s legal practitioners

Zvimba and Madzimba, 1st defendant’s legal practitioners.