Insing Investments (Pvt) Ltd v Cotton Company of Zimbabwe Limited

### Preamble
1
HH
440-2012
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INSING INVESTMENTS (PVT) LTD

versus

COTTON COMPANY OF ZIMBABWE LIMITED

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE,  30 October 2012 ,31 October 2012, and 1,  2 and 20 November 2012

CIVIL TRIAL

Mrs S. Mandungumana, for the plaintiff

C. Maunga, for the defendant

ZHOU J:  The plaintiff issued summons against the defendant claiming 52 811 kilogrammes of cotton or, in the alternative, payment of a sum of US$37 802 and interest thereon, together with costs of suit.  The claim is in respect of bales of seed cotton allegedly taken by the defendant’s agents from the plaintiff’s collection depots at Chinhoyi, Chiredzi, Chipoli, Mash East, and Mukumbura.  The amount of US$37 802 was the total of the amounts set out in the plaintiff’s declaration as follows:

Cotton lint value			US$31 718

Cotton ginned seed			US$  6 020

Wastage				US$       64

The defendant opposed the claim.  In its plea the defendant denied taking cotton in any of the stated places other than in Mukumbura in respect of which it contends that the cotton belonged to it as it had financed the growing of the cotton.  The defendant further states that the cotton which it collected in Mukumbura was in its woolpacks.

The plaintiff led evidence from two witnesses.  Kennias Mthethwa, the first witness, is employed by the plaintiff as Regional manager, based at Chiredzi. When the witness started giving his evidence he was reading from a document, thereby reproducing the places mentioned in the declaration where he had not personally witnessed the events referred to therein.  That evidence will therefore be disregarded.  The witness stated, however, that some time in 2009 he personally went to a place called Mkwazi in the Chiredzi area after the plaintiff’s workers had communicated with him about the defendant’s agents who were removing cotton bales belonging to the plaintiff.  Mkwazi was one of the plaintiff’s collecting points.  Upon arrival the witness saw a seven-tonne truck which was parked.  When he arrived he did not stay for long because the persons there were violent.  They were armed with hookers, according to his evidence.  He made a report at Mkwasine Police Station.  The police made some arrests.  The witness gave no details of the arrests or the charges preferred against those arrested.  Indeed, no mention was made of any names of those arrested.   Asked why he came to the conclusion that the persons who took the bales of cotton were agents or employees of the defendant, the witness could only say that he asked the driver of one of the lorries as to who had given him the instructions to collect the cotton and the reply was that the instructions were from the defendant.  The identity of the driver is not given.  The registration number of the motor vehicles is not given.  He does not explain how he managed to engage the driver in that conversation given his evidence that he could not stay long because the persons were violent.  The witness stated that the person who had custody of the cotton bales was an employee of the plaintiff whose name was given as Mr Mabuto.  He is the one who communicated with the witness about the persons who were removing the plaintiff’s bales of seed cotton.  Mabuto was not called to testify.  No explanation was given for that glaring omission.

The witness was asked in cross-examination as to when the events he had described had happened but said he did not remember. He did not remember what time it was when Mabuto communicated with him.  He could not even say whether it was in the morning or in the afternoon.  He was asked about the number of bales which had been removed from Mkwazi but said he did not remember.   The witness’s testimony was of no value, as he did not remember the material aspects of the case.  Apart from the above, the witness stated that he did not remember how many bales had been removed from the other places which he had visited such as Ruware and Bomba;  he did not remember the producer prices of the seed cotton per kilogramme;  he could not remember how the amount claimed by the plaintiff was arrived at.  The witness remembered certain events only during cross-examination which he had not mentioned in his evidence in chief.  For instance, he stated in cross-examination that Peter Muchinazvo had also communicated with him about cotton being removed, but on a different date.  He gives no details of the events of that date.  He simply had a selective memory. The witness was evasive. For instance, he took a long time to answer the simple question of whether the value of the raw seed cotton was less or more than that of processed cotton lint.  He sought to justify the purchase by the plaintiff of cotton which was packaged in woolpacks belonging to other cotton merchants, and feigned ignorance of the basic rules of the industry as well as the statutory provisions relating to that matter in his evidence in chief only to admit under cross-examination that he was aware of the provisions.  The witness’s testimony is also inconsistent with that of the second witness as will be illustrated later.  In short, the witness’s testimony was unreliable because of his lack of credibility.

The second witness, Peter Muchinazvo, is employed by the plaintiff as a buyer of cotton.  His duties entail buying cotton from farmers and paying the farmers.  That was the position he held in 2009.  The bales of cotton which he purchased on behalf of the plaintiff were kept at collecting depots.  His own homestead was the Ruware depot, in Chiredzi.  The witness said that he was also in charge of another collecting depot known as Chehondo.  Cotton purchased would be receipted. He stated that cotton belonging to the plaintiff was removed by persons sent by the defendant.  The persons came in five lorries carrying some beer.  At Ruware they loaded twenty-nine bales of cotton onto the lorries.  After the bales of cotton had been loaded onto the lorries the witness telephoned one Mthethwa who, according to him, was the owner of the company (plaintiff).  Mthethwa came to Ruware in the company of one Hanil.  The witness then narrated to Mthethwa and Hanil what had happened, after which the two left.  He then proceeded to the Chehondo depot.  The same five lorries came to Chehondo and took some thirteen bales of cotton.  The witness telephoned Mthethwa again to notify him of the removal of some bales which were at Chehondo.  He stated that he could not act to restrain the persons who took away the cotton because they outnumbered him and his colleagues. Of the twenty-nine bales taken away from Ruware nine were packed in the defendant’s woolpacks, according to the witness.  The remaining twenty as well as all the thirteen collected from the Chehondo depot were in the plaintiff’s woolpacks.  Among the persons who collected the bales of cotton the witness recognised one person who was employed by the defendant as a field officer.  He had a motor bike. He spoke to that person about the cotton but his response was that the witness must allow the persons involved to take away the bales of cotton but could just count them for the purpose of reporting to his superiors.   He did not remember the name of that person although he had seen him several times before that date.  That aspect renders the testimony of the witness unsatisfactory.  He knew he was coming to court to testify on the incident which formed one of the  bases of the plaintiff’s claim.  Instead of remembering the name of the only person he had recognised he remembered the number of bales taken away as well as the number of them which were in defendant’s woolpacks.

There are other aspects of the evidence of Peter Muchinazvo which discredit the testimony.  His evidence differs in fundamental respects from that of the first witness.  Although Kennias Mthethwa stated that he had received a telephone call from Muchinazvo on a date different from that on which he went to Mkwazi,  Mthethwa  did not mention any visit to Ruware until a question was put to him in cross-examination.  When it was put to him that he had not mentioned a visit to Ruware in his evidence in chief he insisted that he had, which is not true.  When Peter Muchinazvo was confronted about how his evidence differed from that of Kennias Mthetwa he stated that he may be mistaken about the person he spoke to on the phone.  For the first time he mentioned that there were at least two other persons who were referred to by the name “Mthethwa”.  Probed further, he changed his evidence, and stated that the person he was more concerned about was Hanil.  He did not remember who (or which Mthethwa) had come in the company of Hanil.  He said his report was being made to Hanil and not to the other person who had come with Hanil.  That is a clear contradiction of his evidence in chief. He stated that he could not recall some of the events as they had taken place a long time ago.  But he could not explain why and how he would be able to remember the number of bales taken or the packaging thereof when he would not remember the face of a person he had seen.  His explanation was that as an African he respects a white person more than a black person.  When asked who the white person he was referring to was he stated that he was referring to Hanil, yet earlier on he had stated that Hanil was of Indian descent.  The witness’s testimony became more and more senseless as the cross-examination progressed.   It was clear that the witness sought to embellish his version in order to explain the inconsistencies between his evidence and that of the first witness.  A bundle of documents, Exhibit 1, was produced through this witness.  But only one of those receipts was authored by him.  It was also not clear what those receipts were intended to prove, as they merely record the payments which were made to the farmers whose names are mentioned therein for the number of bales stated.  The receipts do not prove that bales were taken away and taken away by the defendant’s agents. Muchinazvo stated that the rest of the receipts were authored under his supervision by his subordinates as he was in charge of the Ruware and Chehondo depots.  He stated that the other receipts were signed by Zhou, Gwauya and Julian.   He later contradicted himself when he was asked who was the most senior person at Chehondo and Ruware.  His answer was that it was Gwauya, but that in the absence of Gwauya he would perform Gwauya’s duties.

The examination-in-chief of the plaintiff’s witnesses consisted largely of leading questions.  A leading question is one which either puts the evidence in the witness’s mouth by suggesting the answer or assumes a fact not already deposed to in the witness’s evidence.  Almost all questions which begin with “Do/Did” or “Is/Was/Were” or which attract a “Yes/No answer” are leading or potentially leading questions.  There is a general rule against leading questions being asked in examination in chief because the value and weight of a witness’s testimony is reduced if it is obtained through such questions.  Also, as pointed out by TROLIP AJA in S v Rall 1982 (1) SA 828(A) at 831D-E, there is “the risk that the witness may perhaps think that such questions are an invitation, suggestion or even instruction to him to answer them, not unbiasedly and truthfully, but in a way that favours the party calling him”.  See also Hoffman and Zeffertt’s The South African Law of Evidence 4th Ed., p. 444-446.The court wants to hear evidence from the witness in his own words, not from counsel.  The mere fact that opposing counsel does not object does not clothe a response solicited through a leading question in examination in chief with any weight or value.   At some point I invited both counsel to my chambers to explain the rule against leading questions in examination in chief when it was apparent that plaintiff’s counsel did not quite appreciate the nature and disadvantage of asking leading questions at that stage.  The problem also affected the defendant’s counsel although to a lesser extent.  There is need for the profession to conduct professional development courses or continuing legal education for both practising and newly qualified lawyers in order to refresh the minds of the professionals on those fundamental matters.

The plaintiff’s two witnesses gave evidence only on what happened in Chiredzi.  No evidence was led regarding the other places mentioned in the declaration, namely, Chinhoyi, Chipoli, Mash East, and Mukumbura. Mrs Mandungumana for the plaintiff attempted to argue in her closing submissions that the defendant had admitted to taking bales in Mukumbura and that, therefore, there was no reason to lead evidence relating to that place.  She, however, properly conceded that a proper reading of the plea showed that the defendant’s case was that the bales of cotton it had taken from the Mukumbura area belonged to it and not to the plaintiff.  Accordingly, the plaintiff had the onus to prove that its bales were taken by the defendant from Mukumbura, which onus it failed to discharge.

The plaintiff did not lead any evidence on the sum of money being claimed in the summons and declaration.  Kennias Mthetwa admitted that what the plaintiff alleges was taken was seed cotton.  He admitted after being asked the same question several times that the amount claimed relates to the value of processed cotton products which is not the same as the value of raw cotton.  Even then, no evidence was led as to how the value claimed was calculated, as no mention was made of the quantities of the cotton lint, the cotton ginned seed, and wastage.

The defendant relied on the evidence of Andrew Mupfava.  He is employed by the defendant as Operations Executive based at Workington, Harare.  In 2009 he was the defendant’s Business Manager for the Chiredzi Business Unit, and was working from the defendant’s office in Chiredzi town.  His evidence was as follows:  The plaintiff and defendant belong to an association known as the Cotton Ginners Association (CGA), together with other companies in the cotton industry.  He was chairman of the CGA for the Lowveld in 2009.  Chiredzi falls under that region.  The CGA was formed to self-regulate the cotton industry.  The CGA made a resolution which prohibited members from purchasing seed cotton in another merchant’s woolpacks.  The witness also made reference to the Exchange Control (Cotton) Order, 2008 (SI 150 of 2008).  Section 6 (1) of the Exchange Control (Cotton) Order provides as follows:

“Contract seed cotton shall not be purchased by any person other than the seed cotton merchant with whom the seed cotton grower concerned entered into a contract referred to in section 3(a).”

Section 6(3) provides the following:

“A seed cotton merchant shall not purchase seed cotton in woolpacks other than in his or her own woolpacks.”

The witness gave evidence of the procedures involved in the giving of woolpacks to farmers who were not contracted by any cotton merchant.  He emphasised that a cotton merchant was not permitted to purchase cotton from a farmer who had not been contracted by the merchant to grow the cotton.  In the case of non-contracted or free growers, the merchant was not allowed to purchase seed cotton which was in another merchant’s woolpacks.

When he was asked in examination-in-chief what his response was to the claim by the plaintiff that the defendant had taken seed cotton belonging to plaintiff his response was:  “Not to my knowledge.” Another question was put that the plaintiff’s witnesses had indicated that some bales of cotton had been removed from Ruware and Chehondo. He repeated the same answer.  The defendant’s counsel further asked him whether by his answer that he had no knowledge of what the plaintiff was claiming to have happened he meant that some bales could indeed have been taken.  His response was: “Sure.”  He, however, stated that at no time did Kennias Mthetwa or any other person from the plaintiff bring it to his attention that cotton had been taken by persons acting on behalf of the defendant.  The evidence of this witness, other than that relating to the procedures for distributing woolpacks and the regulation of the industry, was very general.  It did not deal with the specific allegations relating to what was alleged to have happened at Ruware and Chehondo.

The standard of proof in a case of this nature is commonly referred to as proof on a balance of probabilities.  Lord Denning formulated the standard of proof in the case of Miller v Minister of Pensions [1947] 2 All ER 372 at 374, as follows:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case.  If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.”

See also Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA147(A) at 157A;  Selamolele v Makhado 1988 (2) SA 372(V) at 375I-376A.

The court does not accept evidence merely because it has not been contradicted.  See Siffman v Kriel 1909 TS 538;  Shenker Brothers v Bester 1952 (3) SA 664(A) at 670.  The evidence tendered must sufficiently show that the story of the plaintiff is more probable than that of the defendant. In this case there are a number of factors which lessen the probability of the plaintiff’s version.  The plaintiff did not dispute the assertion by the defendant’s witness that no complaint was made to it or to the Cotton Ginners Association that the defendant’s agents had taken cotton belonging to the plaintiff without the latter’s authority. Kennias Mthethwa stated that he made a report to the police.  No proof was produced of the report.  This witness also failed to give any evidence of the bales of seed cotton which he alleged was taken.  His testimony did not corroborate that of the plaintiff’s second witness, Peter Muchinazvo. In fact, he contradicted the latter witness who had stated in his evidence-in-chief that Mthethwa came to Ruware after the bales had been taken away. Muchinazvo’s evidence equally failed to prove the case for the plaintiff.  As pointed out above, the witness contradicted himself and embellished his evidence in response to questions under cross-examination. The documents produced do not show that the bales of cotton referred to in those receipts were taken away and taken away by the defendant’s agents. His evidence regarding the person who had a motor cycle at Ruware is unsatisfactory. The receipts produced do not show what cotton was packaged in the defendant’s woolpacks. The witness’s evidence was that he only signed one out of the twenty-nine receipts produced. Also, while the receipts produced show the amounts of money paid for the bales recorded in the receipts, the amounts claimed in the summons and declaration show no relation to those in the receipts. The summons claims the value of the products which would come out of the processing of the raw cotton.

In the circumstances, the plaintiff has failed to prove its case on a balance of probabilities.  The claim cannot succeed on the evidence given.  Judgment is therefore given in favour of the defendant.

Accordingly, it is ordered that the plaintiff’s claim be and is hereby dismissed with costs.

Mushonga Mutsvairo & Associates, plaintiff’s legal practitioners.

Maunga Maanda & Associates, defendant’s legal practitioners