Zimbabwe Electricity Transmission & Distribution Company [Pvt] Ltd v Cornway College

### Preamble
Zimbabwe Electricity Transmission & Distribution Company [Pvt] Ltd v Cornway College
HH 656-25
Case No HCHC766-24
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ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY [PVT] LTD

and

CORNWAY COLLEGE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 4 July 2025

Date of judgment: 24 October 2025

Civil trial

B. Mahuni, with R. Mugadza, for the plaintiff

B. Mudhau, with A. Hwititi, for the defendant

MAFUSIRE J

[1]	The plaintiff claims US$59 577-86 from the defendant for outstanding electricity charges. It also seeks interest on the outstanding amount calculated at a special rate allegedly prescribed by statute, and costs of suit on the legal practitioner and client scale.

[2]	The plaintiff supplies and distributes electricity to consumers from the national grid. The defendant is a school. It offers both day school and boarding facilities.

[3]	The defendant had a running account with the plaintiff for the supply and distribution of electricity. The currency of the contract was United States dollars.

[4]	The plaintiff would invoice the defendant for the electricity charges based on readings from an electricity meter supplied by the plaintiff to the defendant. The defendant would pay at the end of the month. Electricity meters remain the property of the plaintiff.

[5]	According to the claim, the sum of US$59 577-86 represents unpaid electricity charges for electricity supplied and distributed by the plaintiff to the defendant school and which remained unpaid for the period 28 March 2023 to 1 September 2024.

[6]	The defendant denies liability completely on the basis that the electricity meter supplied by the plaintiff was faulty as a result of which it was giving highly inflated figures of consumption.

[7]	The defendant has neither admitted any portion of the claim nor put the plaintiff to the proof of it. It alleges that due to the unreasonably high bills, it terminated its contract with the plaintiff and switched over to other forms of energy such as solar, gas and firewood. It seeks the complete dismissal of the plaintiff’s claim with costs on the higher scale.

[8]	The plaintiff denies that there was anything wrong with the electricity meters supplied to the plaintiff.

[9]	Apparently, there were arrangements to have the electricity meter in question tested. The defendant paid the plaintiff’s standard testing fee of $20. However, the meter was never tested.

[10]	There are conflicting versions why the electricity meter supplied by the plaintiff to the defendant was never tested. The plaintiff alleges that testing of such equipment is done by its personnel. It alleges further that when its technicians called on the defendant’s premises to test the meter, they were denied access by the defendant’s personnel.

[11]	On the other hand, the defendant denies that anyone from the plaintiff ever called on its premises to test the meter. It further alleges that it could not, at any rate, have allowed the plaintiff’s technicians to test the meter for fear of bias, the plaintiff being an interested party, especially after litigation had already commenced. Instead, the defendant required that the testing be done by a neutral third party.

[12]	At trial, the parties called one witness each.

[13]	The plaintiff called one Priscilla Dumbura [“Dumbura”]. She is the plaintiff’s Sales Executive Manager. Her portfolio encompasses client engagement responsibilities. Among other things, whenever a faulty meter is reported or a client expresses dissatisfaction with the plaintiff’s services, she attends to such issues.

[14]	Dumbura stated that the plaintiff installed a smart meter at the defendant’s premises. Among other things, a smart meter records electricity consumption and generates some readings which are read remotely on the plaintiff’s system. From these readings, the plaintiff generates a bill to determine the charges the consumer must pay.

[15]	Part of the defendant’s case that was put to Dumbura in cross-examination is that electricity consumption at the defendant’s school is seasonal, with demand peaking in the winter months and easing up in the summer months.

[16]	It is also part of the defendant’s case that it being a school where, among other things, pupils go away during holidays, leaving the school virtually deserted except for skeleton staff for necessary maintenance work, the electricity consumption patterns from the plaintiff’s bills failed to reflect this reality, thereby bolstering the case of a faulty meter.

[17]	Dumbura maintained that the plaintiff would not know about electricity consumption patterns of each and every one of its customers but that it relies on the meter readings. High charges correlates with high consumption rates, and vice versa. This would account for the differences in the amounts billed.

[18]	Dumbura confirmed that the defendant paid for the meter testing fee, but that the plaintiff’s agents were denied access into the defendant’s premises by the defendant’s people. As a result, no testing could be conducted and, concomitantly, no report could be produced.

[19]	Dumbura stated further that the plaintiff replaced the defendant’s meter in August 2023, the old one having reached the end of its useful lifespan. She intimated that this is standard procedure.

[20]	The defendant gave evidence through one Sheilah Mashoro [“Mashoro”]. She is the defendant’s Administrator. Her portfolio covers general secretarial duties. She assumed her role in November 2023. She admitted she has no first-hand knowledge of the goings-on prior to that date but maintained that she studied the defendant’s records and consumption patterns thoroughly before taking up the defendant’s case.

[21]	 Mashoro testified that upon review of the defendant's records, she noted a massive rise in the defendant's electricity bills from an average of US$800 to US$1500 per month.

[22]	Mashoro said she complained to the plaintiff by e-mail about the enormous rise in the electricity bills which she attributed to a faulty meter. However, the plaintiff never bothered to come and inspect or test the meter despite having accepted the testing fee of $20. She further testified that the only time the plaintiff tried to inspect and test the meter was after the plaintiff had disconnected the electricity, and when the matter was already pending before the court.

[23]	Mashoro claimed that there were inconsistencies in the meter readings in that there were lower charges during the school terms, when it is expected that the defendant’s consumption will be higher, and higher charges in the months of December, August, and April, which are school holidays and where consumption is expected to be lower. The charges during the school holidays were as high as above US$6 000. In her opinion, this was indicative of a meter that was malfunctioning.

[24]	Mashoro further mentioned that during the time in question, March 2023 to August 2024, the defendant used electricity only for printing, lighting, computer laboratory, and other light duties, otherwise the defendant uses gas for cooking and firewood for heating bath water for students. She maintained that the defendant’s operations during the school holidays are minimal and that they do not involve the use of any equipment or machinery that would result in significant electricity usage.

[25]	The major issue for determination is whether this court can make a finding that the plaintiff’s meter supplied to the defendant was malfunctioning during the period in question such that it ended up giving inflated readings of the defendant’s consumption of electricity.

[26]	Ultimately, the court must answer the question whether or not the plaintiff has proved its case on a balance of probabilities.

[27]	In this case, the evidential burden or onus shifts to the defendant. It has to prove that it is not liable for the amount of the claim, either at all or in part, by reason that the electricity meter supplied to it by the plaintiff was faulty as a result of which it was spewing inflated readings of electricity consumption.

[28]	The court’s verdict is this. The defendant has not provided any shred of evidence to support its claim. The defence is based on general speculation and some manifestly faulty syllogism by its witness.

[29]	Dumbura emphasized that the plaintiff would not know what transpires on the premises of a customer. The billing statement dated 14 August 2024 shows computation of electricity consumption  for the period March 2023 to August 2024. Further scrutiny of the statement shows that the defendant was already in arrears from the month of April 2023 to June 2023, closing on a balance of US$4 711-21. This is one of the many instances of overdue or erratic payments by the defendant.

[30]	The defendant argues that the electricity monthly bill, before the compilation of the statement referred to above, would often range between US$800 and US$1500. But this seems to have been the case in the beginning.

[31]	In Lunga v Zimbabwe Electricity Transmission and Distribution Company HH267-16 , this court, per MUREMBA J, on p 6 of the cyclostyled judgment, made the following apposite remarks on onus:

“The plaintiff is the one who is alleging negligence and as such the onus is on him to prove it. He who alleges must prove, so he must have gathered enough information or evidence to prove his allegations of negligence before he instituted these proceedings.”

[32]	In casu, the defendant is the one refuting the computation of the electricity bill. It should have furnished the court with appropriate evidence to prove its claim.

[33]	The plaintiff submits that it was refused entry into the defendant’s premises to conduct the meter testing. On its part, the defendant submits that it never hindered the plaintiff from entering its premises but that it was the plaintiff that refused to conduct the meter testing despite the defendant having paid the meter testing fee.

[34]	On a balance of probabilities, I find that the defendants denied the plaintiff’s technicians access to the premises and thereby prevented the testing of the electricity meter. Documents in the supplementary bundle show that in a letter dated 4 April 2025 the plaintiff offered to organise a meter tester in the presence of both parties for the sake of transparency. In its response dated 9 April 2025 the defendant vehemently opposed the plaintiff’s proposal just because the technician was from the plaintiff.

[35]	The above exchange of correspendence contradicts the defendant’s submission that the plaintiff did not call on the defendant’s premises for the meter testing and that it did not deny the plaintiff entry. At the very least, the defendant should have allowed the plaintiff to proceed with the meter testing and deal with issues of credibility later if the results would turn out to be unfavourable to its case. Alternatively, none of the parties has made the point that the defendant was precluded from availing its own experts during the meter testing.

[36]	The defendant has not provided any evidence of the alleged malfunctioning of the electricity meter in question. Its reliance on the weather patterns and the school calendars for holidays and term times is not evidence but speculation and syllogism. The court accepts the plaintiff’s rebuttal that it would not know any such activities inside a customer’s closed premises as would escalate electricity consumption.

[37]	Nothing turns on the averment by the plaintiff, denied by the defendant, that the old meter at the defendant’s premises was replaced in August 2023 because its lifespan had expired. The defendant has not shown that the change in the electricity meters had any bearing on the capturing of data.

[38]	In analysing the aforesaid statement further, it shows that from April 2023 to July 2023, the monthly bill progressed from US$813-59 to US$3 651-77. Already the bill was in its thousands. The consumption maintained the range of US$2 000 to US$3 000 per month, except for November 2023 to February 2024, when consumption progressed from US$4 000 to US$5 000.  The defendant does not have a case.

[39]	In their closing submissions, the defendant’s legal representatives bring up an extraneous issue. They allege that the defendant is not a legal entity and that the person that exists at law is called Cornway College [Private] Limited and not Cornway College. By reason of this, they submit that there is no valid summons before this court and that there is no defendant in the matter.

[40]	This sounds rather desperate and almost mischievous. The point really requires no further attention save simply to dismiss it. The reason for this is simple.

[41]	Among other things, this matter went to trial on only two issues which did not include the question of the identity or nature of the parties before the court. On the contrary, in its declaration the plaintiff described the defendant as a legal entity capable of suing and being sued. In its plea, the defendant admits it. Now it is turning around. It cannot do that.

[42]	The question whether the defendant is an entity different from the one referred to in the declaration and admitted in the plea is one of fact, not law. This is not an aspect that a party can bring up at any stage of the proceedings. Manifestly, the defendant is springing this surprise as an afterthought. Lawyers should desist from this kind of conduct.

[43]	There are two more residual issues that require attention because the defendant has also raised them in the closing submissions.  The one relates to the plaintiff’s prayer in the summons and declaration for collection commission. The other relates to the question of the plaintiff’s entitlement to interest on the outstanding amount on the basis of some by-laws which the plaintiff has cited as the ZESA [Miscellaneous Charges] By-laws [SI 155/1988]. None of these issues was ventilated at trial.

[44]	The defendant has challenged the plaintiff’s right to seek collection commission. This aspect was not canvassed at the trial. In the pleadings, it exists nowhere else outside the plaintiff’s prayer in the summons and declaration.

[45]	The plaintiff or its legal practitioners have not advised the basis upon which they may be entitled to claim collection commission. The claim remains a nude prayer in the summons and declaration. Therefore, with no basis laid for collection commission, this relief cannot be granted.

[46]	The same goes for interest on the basis of a statutory instrument. Again this aspect was not canvassed at trial. Again the claim exists nowhere else outside the plaintiff’s prayer and declaration. Whilst in drafting pleadings, one does not plead the law, nonetheless one must specify the source of the right one may be trying to vindicate through litigation.

[47]	In the present case, the plaintiff having said nothing in its pleadings and its evidence pertaining to its supposed right to claim some special rate of interest, its prayer for this relief again remains a nude claim that cannot be granted.

[48]	Furthermore, the SI 155/1988 aforesaid refers to the right of an entity called “the Authority” which may, or may have been the plaintiff’s ancestor and possibly, that of one or more other companies when “the Authority” unbundled. But until the plaintiff sets out in its pleadings how it is the one referred to as “the Authority” in the regulations, its claim for this special rate of interest cannot be considered.

[49]	Therefore, whilst the plaintiff is entitled to relief on the main claim, it is not entitled to relief on the ancillary claims relating to collection commission, a special rate of interest and a special order of costs beyond what it is entitled to by operation of law.

[50]	In the premises, the following order is hereby made:

The defendant shall pay the plaintiff the sum of US$59 577-76 [fifty-nine thousand five hundred and seventy-seven United States dollars and seventy-six], together with interest thereon at the prescribed rate and costs of suit.

24 October 2025

Muvingi & Mugadza, the plaintiff’s legal practitioners

Jackson Legal Practitioners, the defendant’s legal practitioners