Modcraft Engineering (Pvt) Ltd v Tenda Buses (Private) Limited and Damascus Mutare

### Preamble
1
HH 207/2013
HC 9089/2010
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MODCRAFT ENGINEERING (PVT) LTD

versus

TENDA BUSES (PRIVATE) LIMITED

and

DAMASCUS MUTARE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 19 JUNE 2013 AND 26 JUNE 2013

N. Bvekwa, for the plaintiff

T. K. Hove, for the 1st defendant

Civil Trial

MATHONSI J:	The plaintiff, a duly incorporated engineering company which is involved in inter alia the manufacture of fuel tanks, instituted summons action against the defendant, a bus company, for damages arising out of a motor vehicle accident which occurred on 8 November 2009 at the intersection of Mharapara and Seke Roads in Chitungwiza.

The accident involved a Scania Horse registration number AAZ 4708 which was pulling a fuel tanker registration number AAS 9480 both belonging to Modcraft Transport (Pvt) Ltd, another registered company which is a sister company of the plaintiff and was being driven by Vengai Mapfumo and an omnibus registration number AAS 4056 belonging to the defendant which was being driven by the defendant’s driver, one Damascus Mutare.

I must state that initially the plaintiff sued both the bus company and its driver Damascus Mutare but subsequently withdrew the claim against the driver without giving any reason. It pursued the action only against the bus company. The plaintiff’s declaration reads as follows;-

“1. 	Plaintiff is MODCRAFT ENGINERING (PRIVATE) LIMITED a company registered with limited liability in terms of the laws of Zimbabwe. Its address for service is that of his (sic) legal practitioners detailed below.

2.	The first defendant is TENDA BUSES (PRIVATE) LIMITED. Its address for service is Number 119 Mutare Road, Msasa Harare.

3.	The second is DAMASCUS MUTARE. His address for service is that of the first defendant.

4.	On 8 November 2009 along Mharapara Road and Seke Road, Chitungwiza around 0545 hours the plaintiff’s vehicle horse AAZ 4708 and trailer AAS 9480 was involved in an accident with the second defendant who was driving during the course and scope of his duties with the first defendant its bus number AAZ 4056.

5.	The first defendant is vicariously liable for the actions of the second defendant pursuant to the above.

6.	The accident was caused by the sole negligence of the defendant in one or all of the following respects:-

6.1.	He was driving at an excessive speed under the circumstances.

6.2.	He failed to give way to traffic which had the right of way and caused accident.

6.3.	He failed to avoid an accident which was imminent.

7.	As a result of the accident, the plaintiff’s vehicle was damaged on its 3x12R 22.5 tubeless tyres, 2 x12R22.5 tubeless rims, left hand side mudguards, front hanger, outlet pipe tank guard, left side tank.

8.	The plaintiff has not repaired the vehicle and it has sourced quotations for the repairs and supply of new tyres the lowest being US$13 800-00. The residue being the pre and after accident value difference is more than the costs of repairs.

9.	As a result of the accident the plaintiff suffered repair damages and supply of new tyres in the sum of USD13 800-00 which amount despite damage (sic) defendants refuses (sic) fail and or neglect to pay.”

The plaintiff then prayed for judgment accordingly.

The defendant entered appearance to defend and filed a plea in which it denied that there was a road accident as alleged by the plaintiff. It averred further that its driver was not acting within the course and scope of his employment but was on a frolic of his own when the collision occurred. It also made more averments including that the plaintiff’s driver was not properly licenced to drive the vehicle, the vehicle did not have a certificate of fitness and that the plaintiff’s vehicle was not mechanically sound.

The matter was referred to trail on the following issues;-

Whether the defendant was aware of the road accident.

Who caused the accident.

Whether the defendant’s driver was acting within the course and scope of his employment by the defendant.

Whether the plaintiff’s motor vehicle was properly licenced, insured and with the relevant certificate of fitness.

What damages, if any, were caused to the plaintiff’s truck and trailer and the quantum of those damages.

In order to prove its case the plaintiff led evidence from 2 witnesses namely Vengai Mapfumo and Freddy Hickey. Vengai Mapfumo is the holder of a class 2 driver’s licence which he obtained in 1993. He produced his driver’s licence which shows that he was retested in accordance with the law in 2008 which retest was due to expire in 2012 and was therefore valid at the time the accident occurred in 2009.

Mapfumo testified that on the fateful day he was driving a tanker ladden with petrol just before 6pm. As he was turning at the intersection of Mharapara and Seke roads enjoying a right of way against the Tenda Bus which was facing a stop sign, he glanced at his rear view mirror and realised that the bus had not stopped and was about to collide with his trailer which was following behind the horse. He hooted to alert the driver of the bus but it was too late as it went on to collide with his tanker trailer causing the damage set out in the plaintiff’s declaration.

Mapfumo stated that he confronted the driver of the bus who quickly apologised to him saying that he was tired as his bus had been hired earlier on to ferry passengers and he had driven the whole day on that assignment. After that he had been reassigned to ferry other passengers. He made reference to the police accident book page where his statement had been recorded at the scene of the accident and he signed it. He denied that his vehicle had any mechanical fault prior to the accident.

Freddy Hickey, is the Managing director of the plaintiff’s company who is hands on and runs the workshop and supervises the activities of the company. He stated that the Scania horse and the trailer are owned by a sister company of the plaintiff namely Modcraft Transport (Pvt) Ltd which is also registered. He made reference to the 2 registration books of the vehicles showing that indeed the vehicles are registered in the name of Modcraft Transport (Pvt) Ltd of Corner Harare and Willow Roads New Ardbennie Harare. They are not owned by the plaintiff neither is the fuel which was being ferried at the time of the accident. Hickey stated that the plaintiff and Modcraft Transport (Pvt) Ltd are separate entities although the directors are the same. They operate from different premises.

He stated that the plaintiff repaired the damaged tanker after the defendant had promised to do so but failed and business was being lost when the tanker remained off the road. He told of how the plaintiff had obtained 3 quotations from panel beaters of repute for the repairs to the tanker. Noaluc Panel beaters & Spray painters had quoted $15 594-00 for the repairs. Floyd Enterprises (Pvt) Ltd quoted US$17 814-00 while Adec Panel Beaters (Pvt) Ltd quoted $15 514-00.

The plaintiff, being an engineering concern which does the same job, weighed in with a quotation of $13 800-00 which was far less than what was quoted by the other repairers. For that reason, the plaintiff under-took the job and sought to recover from the defendant which was liable, its driver having caused the accident. It is for this reason that the quotation of 9 November 2009 from the plaintiff was addressed to the defendant.

Hickey produced the insurance cover note and certificates of fitness in respect of the horse and trailer to put to bed the claim by the defendant that they were not insured and unroadworthy.

At the close of the plaintiff’s case Mr Hove for the defendant made an application for absolution from the instance on essentially 3 grounds. Firstly, he submitted that the plaintiff being a separate entity from Modcraft Transport (Pvt) Ltd the owner of the motor vehicle which was damaged in the accident, does not have a right of action against the defendant. It is the wrong party to sue. Secondly, Mr Hove argued that the figure of $13 800-00 being claimed was a “thumb suck” which has not been substantiated as shown by the figure of $12 000-00 before VAT which has not been broken down to show what it is that the plaintiff did.

Thirdly, Mr Hove submitted that as the plaintiff’s claim against the defendant is premised on vicarious liability, the decision to withdraw the claim against Damascus Mutare, the defendant’s driver, was fatal to the plaintiff’s case. It could not proceeded against the defendant vicariously where the employee has not been cited.

Mr Bvekwa for the defendant opposed the application. He submitted that the plaintiff and Modcraft Transport (Pvt) Ltd are intertwined, they have the same directors and as such no difference exists between them. While conceding that it was bad corporate governance to run the entities inter-changeably given that they are both registered, he took the view that the plaintiff’s case remains as the transport company is run like a division of the plaintiff.

On the issue of the driver, Mr Bvekwa submitted that the defendant having admitted that Mutare was the driver, the onus shifted to it to prove that he was acting outside the course and scope of his employment as such. I am of the view that the last 2 grounds for seeking absolution relied upon by Mr Hove are completely devoid of merit and should not detain us at all.

The plaintiff has led evidence and produced quotations, which have not been challenged at all, which show that 3 other reputable panel beaters would have undertaken the repairs at a cost far more than what is claimed by the plaintiff. For the defendant to then say that the amount of $13 800-00, which is significantly lower, should be proved to the last ingredient is to clutch at straws. In my view, the defendant is lucky that the plaintiff repaired the tanker itself at less the cost and is not claiming $15 514-00 which was the lowest quoted figure.

The citation or lack of it of the defendant’s driver, cannot be a basis for absolution from the instance. If the plaintiff has made a case against the defendant, it matters not that the driver has not been cited, the defendant will have to disprove the plaintiff’s case.

Where an application for absolution is made at the close of the plaintiff’s case, what the court has regards to was stated in the leading case of Gascoyne v Paul and Hunter 1917 TPD 170 in the following:

“At the close of the case for the plaintiff, therefore the question which arises for consideration is: Is there evidence upon which a reasonable man might find for the plaintiff?……….The question therefore is, at the close of the case for the plaintiff, was there such evidence before the court upon which a reasonable man might but should not give judgment against Hunter.”

See Herstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa, Juta & Co Ltd, 3rd ed, at p462.

In Bailey N.O v Trinity Engineering (Pvt) Ltd & Others HH 181/02 MATIKA J quoted with approval the pronouncement of HANCK J in Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (TK) at 185 B-D where he said:-

“ The legal test to be applied at this stage appears to be common cause, namely whether there is evidence upon which a reasonable man might find for the plaintiff: Claude Neon Lights (SA) Ltd v Daniel 1976(4) SA 403 at 409.”

In the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) at 552 G-H; 553A SMITH J followed the pronouncement of Beadle CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR 1 at 5D where he said:

“ The test, therefore, boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

At 5-6 BEADLE C J went on to say:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that justice is done between the parties, and, so far as possible,   courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance. I might usefully quote here what was said by SUTTON J in Erasmus v Boss 1930 CPD 204 at 207:

‘ In Theron v Behr 1918 CPD 443, JUTA J at 451 states that according to the practice in this court in later years judges have become very loath to decide upon questions of fact without hearing all the evidence on both sides.’

We in this territory have always followed the practice of the Cape courts. In case of doubt at what a reasonable court (might) do, a judicial officer should always therefore, lean on the side of allowing the case to proceed.”

In casu, the plaintiff pleaded its case on the basis that it is the owner of both the Scania horse and tanker trailer which were involved in an accident with the defendant’s bus. It led evidence to the effect that the bus driver was negligent as he drove tired and lacking in concentration, thereby failing to observe a stop sign and colliding with the tanker.

The plaintiff also led evidence with supporting documentation that the vehicle belonged to a sister company, which is duly incorporated, Modcraft Transport (Pvt) Ltd. The driver, Mapfumo was employed by the latter as he drove the vehicle on the factful day.

In this jurisdiction, the separate legal persona concept is the cornerstone of our company law. It provides that a company, once registered at the company registry, acquires a legal personality of its own divorced from that of its members. It enjoys perpetual succession, can sue and be sued in its own right and generally stands alone outside directors or shareholders. For that reason no one, not even its directors or its sister incorporations, can sue or be sued on its behalf. Like in any other legal concept, there are exceptions to the application of the legal persona principle, which may result in the lifting of the veil of incorporation. Those exceptions do not obtain in this case.

Clearly therefore, it was incompetent for the plaintiff to sue on behalf of its sister company as it did not acquire locus standi in judicio merely by being a sister company. Nor did it gain a right of action by virtue of its close relationship to Modcraft Transport (Pvt) Ltd the wronged party.

The plaintiff is therefore non-suited and there is no way in the world in which the court might make a reasonable mistake and give judgment in favour of the plaintiff. The evidence led makes a very good case for Modcraft Transport (Pvt) Ltd and not the plaintiff. In the circumstances my hands are therefore firmly tied.

In the result, I make the following order, that

Absolution from the instance is hereby granted.

The plaintiff shall bear the costs of suit.

Messrs Bvekwa legal practice, plaintiff’s legal practitioners

T.K. Hove and Partners, defendant’s legal practitioners