Hessie Mupfuri v Tawanda Njanji & 2 Ors

### Preamble
1
HMA 40-22
HC 71-19
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HESSIE MUPFURI

versus

TAWANDA NJANJI

and

GREEN FUEL (PVT) LTD. ZIMBABWE t/a GREENFUEL

and

NICOZ DIAMOND INSURANCE

HIGH COURT OF ZIMBABWE

ZISENGWE J

MASVINGO, 3 & 21 March & 1 June 2022

Civil Trial

C. Ndlovu, for the plaintiff

K. Mabvuure for 1st and 2nd defendants

ZISENGWE J:  	This is a claim for the recovery of several sums of money in damages emanating from a horrendous head on collision between a minibus owned by the plaintiff (the commuter omnibus) and a heavy “HOWO” truck (“the HOWO truck”) belonging to the 2nd defendant. Horrendous in that the accident claimed the lives of several people aboard the minibus. The claim is predicated on plaintiff’s assertion that the collision was caused entirely through the negligence of the driver of the HOWO truck. The 1st and 3rd defendants are the driver of the HOWO truck and the 2nd defendant’s insurers respectively.

On the ill-fated day, the 2nd of December 2018, the commuter omnibus was travelling from Checheche towards Tanganda when the HOWO truck driven by the 1st defendant travelling in the opposite direction collided head on. According to the plaintiff, not only was the minibus reduced to a worthless mangled wreck, but also that she has incurred and continues to incur loss of business as a consequence thereof.

The following is a breakdown of plaintiff’s claim as stated in her summons:

US$12 666 being the value of the commuter omnibus which was damaged beyond repair

US$13 350 being loss of business from the 2nd of December, 2018 to 28 February, 2019

Damages at the rate of US$150 from 1st March, 2019 to time of full payment of the value of the commuter omnibus

Interest at the prescribed rate from date of summon to date of full payment

Costs of suit on a legal practitioner and client scale

In her declaration, the plaintiff attributes the accident to the sole negligence of the 1st defendant whose driving conduct she alleges fell far short of that of the diligens paterfamilias in the following respects;

That he overtook when the road ahead of him was not clear since the trucks in front of him had raised a lot of dust

That he travelled at an excessive speed in the circumstances

That he failed to keep the truck under proper control

That he overtook when it was not safe to do so

That he failed to stop or act reasonably when the accident seemed imminent

The plaintiff imputes vicarious liability on the part of the 2nd defendant in that the accident occurred during the 1st defendant’s course and scope of employment with the 2nd defendant.

As fate would have it, the uncontroverted evidence led during the ensuing trial was to the effect that the 1st defendant has since vanished into the thin air, so to speak, in the aftermath of the deadly collision. This effectively left the chief protagonists to this dispute being the plaintiff on the one hand and the 2nd defendant on the other.

The defence

In its plea the 2nd defendant denied liability for the accident and it was averred on its behalf that the accident was caused by the commuter omnibus encroaching onto the path of the HOWO truck. The 2nd defendant therefore attributed the accident to the negligence of the driver of the commuter omnibus. The particulars of negligence alleged by the 2nd defendant were a mirror reflection of those alleged by the plaintiff save for the additional particular that the commuter omnibus deviated from its authorised route.

In the ensuing trial, three witnesses testified for the plaintiff’s case and two gave evidence for the 2nd defendant. The following is a synopsis of each of the witnesses’ respective accounts.

The plaintiff Hessie Mupfuri testified that she is the owner of the ill-fated commuter omnibus. She indicated that not only was the commuter omnibus duly registered, licensed and officially authorized to ply the Chiredzi-Tanganda route, but also that it had been issued with the requisite “certificate of fitness”. It was her evidence that she was in the business of ferrying passengers for a fee wherein she realised an average of US$150 per day. She produced a logbook showing a breakdown of that particular minibus’s daily earnings, expenses and the net amounts subsequently cashed in.

She indicated that she purchased the motor vehicle in question in Mussina, South Africa and the purchase price, as with the duty she paid at the port of entry, was denominated in United States dollars. She further testified that at the time of its purchase the omnibus was just but a bare shell which needed to be customised to carry passengers, a process which involved the installation of seats and other relevant accessories, which expenses she also paid in United States dollars. She therefore justified denominating her claim for the replacement value of the commuter omnibus in that currency. She would further indicate under cross examination that she has since lost the receipts associated with the acquisition of the commuter omnibus, but that she however obtained quotations (whose invoices were produced as exhibits) from prospective suppliers of similar vehicles to substantiate her claim for its replacement value.

She conceded during cross examination however that the said motor vehicle was not brand new at the time of the accident it having been purchased about a year earlier in August 2017. She however insisted that nothing of real value could be salvaged from the wreckage of that motor vehicle post the accident.

Regarding liability for the accident, she dismissed assertions put to her during cross examination that the accident was caused by the negligence of the driver of the commuter omnibus and indicated that upon a consideration of the documents compiled by the police in the wake of the accident she was satisfied that the accident was caused entirely by the negligence of the HOWO truck driver.

She would also categorically deny that the commuter omnibus had deviated from its authorized route maintaining as she did that it was precisely on the route stipulated on the requisite permit.

One of the passengers aboard the commuter omnibus who survived the crash, Tererai Mudadi, testified for the plaintiff’s case. In his evidence, he put the blame for the collision squarely on the driver of the HOWO truck. According to him the commuter omnibus had parked off the road at a bus stop to enable some passengers to get on and others to alight from the commuter omnibus.

Although he could not commit himself on the distance the commuter omnibus was parked from the road, he was however adamant that it was off the road at a bus stop. He further indicated that the driver of the commuter omnibus specifically decided to wait a while to enable the plume of dust that enveloped the vicinity to settle and actually announced such an intention to his passengers. He explained that the road at that time was under repair and portions of it were dusty and to compound matters, one of the Green Fuel trucks had overturned and when that truck was being raised, it caused a column of dust to billow into the air thereby reducing visibility.

It was then that two trucks belonging to the 2nd defendant approached from the opposite direction and the one driven by the 1st defendant crashed into the stationery commuter omnibus with catastrophic consequences. He would indicate under cross examination that he did not see the actual collision itself his vision being impaired by the dust but he heard a loud bang caused by the impact after which he lost consciousness. He only came to in hospital. He suffered serious injuries.

He would however flatly deny that the commuter omnibus was stationery in the middle of the road or that it had encroached into the lane of oncoming traffic.

The third and final witness for the plaintiff’s case was one Hardlife Masvingise a police officer who at the material time was attached to the traffic section at the Chisumbanje Police Station. He is the one who attended the scene in the wake of the fatal collision and compiled a detailed report of his findings. His findings were based on his observations coupled with the results of his interviews with witnesses. His evidence can be summarised as follows. That the driver of the HOWO truck attempted to overtake another truck ahead of him in circumstances where it was unsafe to do so because of the cloud of dust that enveloped the area. Unbeknown to him the commuter omnibus in question was approaching from the opposite direction and the result was a head on collision between the two vehicles. The collision claimed several lives including that of the commuter omnibus driver, Cornelius Nyaruzero.

Most significantly, he indicated that that the accident took place in the lane of the commuter omnibus. He categorically denied suggestions put to him during cross examination that there was contributory negligence on the part of the commuter omnibus driver. He insisted that the accident was caused solely by the negligence of the HOWO truck driver, the latter who tried to overtake another truck when his visibility was impaired by the pall the dust which had risen. When confronted with the version of the preceding witness, Hardlife Masvingise who indicated that the commuter omnibus was stationary at a bust stop, he indicated that he could not discount that possibility.

He indicated that as a result of the collision the commuter omnibus was extensively damaged to the extent of being written off.

He would dispute suggestions put to him in cross examination that the deceased driver was not a properly qualified driver as he was not the holder of a driver’s licence. He stressed that as a traffic police officer who patrolled that specific route, he had regularly interacted with the said driver and he was certain that he was the holder of a valid driver’s licence.

He indicated that the HOWO truck driver has since absconded and cannot be traced rendering it impossible to obtain his version of the accident.

In support of its position the 2nd defendant led evidence from two of its employees, namely its legal officer, Joseph Takudzwa Razunguza and its loss control investigator, Emmanuel Nkomo. The main thrust of the former’s evidence was to dispute the sums of money claimed by the plaintiff. In this regard he disputed the value of the commuter omnibus as claimed by the plaintiff suggesting that it should be denominated in Zimbabwean dollars in light of the provision of S.I. 212/2019. He even went so far on suggesting that should the plaintiff be prepared to accept payment in Zimbabwean dollars then the 2nd defendant was prepared to settle the claim.

He also confirmed that the driver of the HOWO truck has since disappeared. He all but conceded that there was virtually nothing at the 2nd defendant’s disposal to rebut the plaintiff’s witnesses’ version of how the accident occurred.

He would also insist under cross examination that at least the rear portion of the commuter omnibus could be salvaged from the wreckage and that therefore the plaintiff was not entitled to the full value of the commuter omnibus.

The evidence of Emmanuel Nkomo on the other hand was to the effect that at the material time he was based at Chisumbanje and reacted quickly to the report of that fatal accident by proceeding to the scene. So prompt was his reaction that when he arrived the bodies of the deceased persons were still strewn at the scene and the two damaged motor vehicles in question were still in situ. He conceded that the glass debris was on the lane of the commuter omnibus suggestive of the fact that collision had occurred in its lane.

The issues that therefore emerged at the conclusion of evidence can crisply be summarised as follows: -

Liability: whether the accident was caused by the negligence of the 2nd defendant’s driver.

If the answer to (a) above is in the negative then cadit questio. However, if the answer is in the affirmative then –

Whether the plaintiff is entitled to recover the full value of the loss of the commuter omnibus or only to a portion thereof.

Whether payment of the loss of the commuter omnibus should be denominated in United States dollars (USD) or in local currency

Whether the plaintiff succeeded in establishing damages arising from loss of business earnings consequent to the loss of use of the commuter omnibus and if so the extent of such loss.

Liability for the accident

The parties filed written closing submissions in support their respective positions. For its part, the 2nd defendant virtually abandoned its half-hearted attempt to deflect liability for the accident. The implied concession is not altogether too surprising in light of the totality of the evidence led. The evidence by the police officer who attended the scene, Hardlife Masvingise, and that of the passenger who survived the accident Teverai Mudadi coupled with the concession by the 2nd defendant’s very own Loss Control Officer Emmanuel Nkomo, is such as to admit of no doubt that the accident was caused by the negligence of the HOWO truck driver. Those witnesses testified that the accident occurred in the lane of the commuter omnibus. Most pertinently the uncontroverted evidence of Mudadi and Masvingise was that the Howo truck driver attempted to overtake when it was patently unsafe to do so given that visibility was severely limited owing to the plume of dust that enveloped that stretch of the road.

That the 1st defendant was employed by the 2nd defendant is common course. So too is the fact that when the accident occurred the former was driving the HOWO truck in the course and scope of his employment with the latter, rendering the 2nd defendant vicariously liable for the delicts of the 1st defendant in that regard.

Ultimately, however, on the question of liability the 2nd defendant in its closing submissions shifted focus to the two issues namely the apparent absence of evidence confirming that the commuter omnibus driver was duly licenced and secondly that the commuter omnibus was off its designated route. Neither argument can avail the 2nd defendant.

On the question of the commuter omnibus driver’s driving licence, both the plaintiff himself and the police officer Masvingise testified that the said driver was duly licenced. The evidence placed before the court was that the licence as with several other documents went missing in the wreckage of the accident.

Masvingise in particular, confirmed having personally seen the licence each time the said driver passed the road blocks which he manned. There is therefore sufficient information at my disposal to safely conclude that the plaintiff succeeded in proving to the required degree that the deceased driver was the holder of the requisite driver’s licence. After all, this need only be proved on a balance of probabilities.

Equally untenable is the 2nd defendant’s contention that the commuter omnibus had deviated from its duly authorised route. This particular argument cannot be sustained in light of the combined evidence of the plaintiff, the Certificate of Fitness showing the route as Chiredzi – Checheche and that of Masvingise who confirmed that the commuter omnibus was on its designated route.

Having thus found that the 2nd defendant is liable for the accident I now turn to the question of the damages claimed by the plaintiff as a consequence thereof.

Damages arising from damage to plaintiff’s Nissan Caravan minibus

As indicated earlier, the plaintiff seeks under the aquilian action, to recover damages equivalent to the cost of the replacement of the commuter omnibus. The basis of such a claim being that the said motor vehicle was damaged beyond salvage. She therefore claims that she is entitled to an amount equivalent to what she would need to replace that motor vehicle today, hence the attachment, as part of her evidence, quotations from motor vehicle suppliers who have similar motor vehicles on the market.

The 2nd defendant’s position in resisting this claim was to attack it on two broad premises.  Firstly, it was averred that the plaintiff had failed to prove the value of her motor vehicle before and after the accident rendering the computation of her loss in this regard virtually impossible. It therefore sought an order for absolution from the instance. Secondly 2nd Defendant contended that denominating the value of the commuter omnibus in United States dollars is legally impermissible.

It is well established that in respect of damages for the impairment of corporeal property such as a motor vehicle the basic measure of damages is that the plaintiff is entitled to be put in as good a position as if the wrong had not been done. The defendant’s obligation being to pay the difference between the market value of the thing before and after the damages. It stands to reason that where the thing has been totally destroyed or damaged to such an extent as to be commercially of no real value, then the plaintiff is entitled to the replacement value thereof. The damages of that property have to be assessed as at the date of the delict.

In this regard the following passage from Cooper Motor Law, Volume 2 at page 387 is instructive.

The following passage from Cooper, Motor Law Volume 2 at page 387 is instructive:

“An owner is entitled to a sum of money (damages) which will place him in the financial position he would have been if his motor vehicle had not been damaged. The object of an award is to compensate the owner of material loss, not to improve his material prospects. In other words the owner is entitled to claim his negative intresse (interest). The plaintiff’s loss must be assessed as at the time of the motor vehicle was damaged”.

In Komichi v Tanner & Anor 2005(2) ZLR 358 (H), MAKARAU JP (as she then was) stated as following;

“the measure of delictual damages on our law also known as negative intresse, is the calculation of an amount which is necessary to place the plaintiff in the position he would have enjoyed had the delict not been committed.”

In support of its position for an order of absolution from the instance, heavy reliance was placed by the 2nd defendant on the case of Sakunda Energy v Dakarai Mapuranga and Anor. HH 977/15. In that case the plaintiff’s BMX X 5 motor vehicle was damaged following a collision with the defendant’s Porsche motor vehicle owing to the negligence of the driver of the latter vehicle. The plaintiff in that matter as in the present one relied on quotations from suppliers of similar motor vehicles to his BMW X 5 motor vehicle. The defendant successfully applied for an order of absolution from the instance. The court found that although the said motor vehicle was damaged beyond “economic repair”, this did not necessarily translate to it being completely worthless. The court further held that the plaintiff should have instead claimed and proved damages calculated as the difference the pre-collision and post collision values of the motor vehicle.

A distinction naturally arises between situations where the plaintiff’s property is destroyed or stolen from those where the property is merely damaged. Where the property is destroyed or stolen, the plaintiff’s damage and damages are assessed at the market value of the property at the time and place of the loss, see Monumental Art Co. v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C). Suffice it however to say that the correct measure of damages is not the replacement value of the property at the time of trial.

Whether or not the plaintiff has suffered a total loss of his asset in the sense of it having been destroyed, is a question of fact to be decided by the court on the evidence placed before it. In the present case the question is whether or not the plaintiff’s motor vehicle was so extensively damaged as to be rendered virtually worthless.

The 2nd defendant though its witness Joseph Takudzwa Razunguzwa strove to suggest that the Nissan Caravan Minibus retained some residual value post the collision, the evidence, however, points to the contrary.

Although no expert witness was called by either party to provide his or her estimate of the value of the wreckage after the collision, the evidence placed before the court paints a tale of an almost complete destruction of the Nissan Caravan minibus. The plaintiff testified that her minibus was reduced to a worthless mangled wreck. Save for a half-hearted attempt by Mr Razunguzwa to suggest that there was something of value to salvage from it, there was no evidence to dispute the plaintiff’s evidence of the condition of the minibus after the collision.

Then there was the evidence of the second plaintiff’s witness Hardlife Masvingise who testified that the HOWO truck rolled over the minibus practically flattening it in the process. He further indicated that the latter was badly and seriously damaged leaving it with no engine or anything worth talking about.

Further, there were photographs which were produced by the plaintiff depicting the post collision state of the Nissan Caravan minibus. The expression “every picture says a thousand words” hold true in the present case. Those photographs convey a tale of virtual destruction of that asset. Save for the shell constituting the rear cabin of that motor vehicle, the minibus was reduced to a flattened pile of metal.

Over and above this evidence, there was the vehicle examination report compiled by the Government Vehicle examination department which was produced as exhibit 9 of record. It too portrays an almost total wreckage of the motor vehicle. Virtually all the vital components that constitute a motor vehicle were damaged. The report concludes by noting the following damage to the minibus:

the front body and roof were ripped off

the doors were dislodged

the steering column was dispositioned

the steering was bent

the engine was damaged

the front chassis frame was bent

the seats were broken

master cylinder was dislodged

the brake lines were cut

the headlights were dislodged

Although the 2nd defendant attempted to argue to the contrary, I find from an objective assessment of the evidence before me that the value of the minibus after the accident if any, was insignificant.

Having thus established from the available evidence that the plaintiff’s Nissan Caravan minibus was virtually completely destroyed, I now proceed to determine whether the plaintiff was able to establish the pre-collision value of the commuter omnibus at the time collision. The following principles have since crystallised in the determination of the value of an asset before its loss, alienation or destruction.

Firstly, on the question of what the value of such an asset is, the following passage from S.M. Goldstein & Co (Pty) Ltd v Gerber 1979 (4) SA 930 at 932 F – G is instructive:

“The market value is best proved by evidence of what a willing buyer would pay a willing seller and his is done by referring to actual sales of comparable equipment. See Katzoff v Glaser 1948 (4) SA at 637.

Secondly, the onus rests on the plaintiff to evidence on the value of the stolen or destroyed property, see Halim v Gauche 1945 (2) PH F 96; S.M. Goldstein & Co (Pty) Ltd v Gerber (supra); Bonderete Ltd v City View Investment Ltd 1969 (1) SA 134 (NPD); Lazarus v Rand Steam Laundries (1946) (Pty) 1952 (3) SA 49.

.

Thirdly, although it is not always possible to prove the exact value the asset in question as a fair and reasonable estimate will suffice, a plaintiff is, however, expected to lead evidence which will enable an accurate assessment to be made is such evidence is available (see Klopper v Mazoko 1930 TPD 860 at 865). The court is not at liberty to make an arbitrary or speculative assessment. See Lazarus v Rand Steam Laundries (supra).

Finally, although the court makes use of the best evidence presented, where however, a plaintiff neglects to produce evidence which is otherwise available to him or her, the court may be justified in granting absolution from the instance. In this regard DEVILLIERS J, in Lazarus v Rand Steam Laundries (1946) (Pty) 1952 (3) SA 49 (T) quoted with approval the following passage from Hersman v Shapiro & Co. 1926 TPD 367 at 379:

“Monetary damage having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the court is very little more than an estimate, but even so, if it is certain that pecuniary damage has been suffered, the court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances the court is justified in giving, and does give absolution from the instance. But where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damage suffered, still if it is the best evidence available, the court must use it and arrive at a conclusion”.

In the Lazarus v Rand Steam Laundries case, (supra) the courst was quite prepared to accept evidence of two witnesses called by the plaintiff one of whom was an expert in the type of equipment (which was a construction roller) which had been stolen by the defendant and the other witness with practical expertise as to the condition and value of rollers. Both witnesses in that case gave evidence, which the court accepted, as to the value of roller at the time it was stolen with due regard being had to not only its condition but also to its depreciation owing to the vagaries of the weather to which it was exposed.

In the present case the plaintiff did precious little to establish the value of her minibus at the time of the collision. All she did was to testify on the cost at which she procured it more than a year earlier coupled with the cos of customising it for passenger carriage purposes. She also produced quotations from potential suppliers of new minibus in neighbouring South Africa. What she therefore did was to prove the replacement value of the minibus without taking into account its depreciation due to wear and tear not least through its use as a public commuter omnibus.

To facilitate an objective assessment by the court of the value of her commuter omnibus the plaintiff needed to lead evidence not only of its condition at the time of the delict, but also on an estimation of its market value, see Dururu Transport (Pvt) Ltd v Mitchell Rutendo Mutamuko & Another HH 95- 2011. She did neither. She was content with production of invoices for the purchase prices (plus attendant costs) of a similar vehicle in 2022.

I say this mindful that in appropriate instances (say where stock in a shop is destroyed due to the negligence of the defendant) the court may accept the replacement value (i.e. current market prices) of such stock. See for instance the case of Monumental Act Co. v Keston Phamarcy Pty. Ltd 1976 (2) SA 111 (C) where the following was said;

“Indeed, in an appropriate case that [cost of manufacture of an article] may well be the measure of damages, as for example where a plaintiff is indemnified to the extent of the cost of replacing destroyed property which can only be replaced by its equivalent being manufactured or rebuilt and where the circumstances justify or render replacement necessary or reasonable. See e.g. Harbutt’s Plastics Ltd v Wayne Tank and Pump Co. Ltd (1970) 1AUER 225 CA at 236 D and 242 D, where the cost of rebuilding factory premises destroyed by fire was found in the special circumstances of the case to be a more appropriate and proper measure of indemnity than the different in the market value of the premises before and after damages.”

In the instant case, however, the plaintiff was unable to prove (as she was required) the value of the commuter omnibus immediately prior the accident and this particular claim lends itself to an order of absolution from the instance.

Damages for loss of business

Under this heading, the plaintiff split her claim into two parts. Firstly, she claimed the sum of US$13 350 being loss of business owing to the loss of the use of the commuter omnibus covering the period 2 December 2018 to 28 February 2019. Secondly, she sought damages for at the rate of US$150/day from the 1st of March 2019 to the time of full payment of the full value of the commuter omnibus.

Our law does recognise a claim for the recovery of damages arising from loss of the use of a property due to the culpable conduct of another. The damages can either be profit or income lost consequent to the unavailability of the asset during the period in question subject to the duty placed on the plaintiff to mitigate his loss. To succeed, a party claiming damages under this head, must provide satisfactory evidence in the form of invoices or receipts supporting the claim.

In the present matter in support of her assertion that this particular commuter omnibus raked in an average of US$150/day after expenses, the plaintiff chiefly relied on a “cash-in” log book. The logbook which is on a “white horse” letter head, covers the period October to November 2018. She explained that the receipt book got lost in the very accident which led to this claim. She stated that the cash-in log book details the sums received on a daily basis and the deductions made therefrom to cater for expenses such as fuel, food for the crew etcetera.

In its written closing submissions, the 2nd defendant did not so much as dispute the legal basis for damages founded upon loss of business due to loss of use of a motor vehicle. The implied concession is well taken. This is because it is trite law, as stated earlier, that where a motor vehicle which is damaged through the negligence of another has been in use in a business of its owner, the damages which can be recovered, apart from the cost of repairs, include the loss of the income to the owner due to the loss of the motor vehicle, see Shrog v Valentine 1949 (3) SA 1228 (T); Mossel Bay Divisional Council v Oosthuizen 1933CPD 509; Mainline Carriers v Refrigerated Transport 1980(2) PH J66.

However, the 2nd respondent did take issue with the fact that the cash in booklet is on a White Horse letter head yet no explanation was proffered to establish the connection between “White Hose” and the plaintiff.

The plaintiff’s evidence which went unchallenged, however, was that the booklet belonged to her where the daily takings from this particular commuter omnibus were recorded. The 2nd defendant only sought to challenge the admissibility of that booklet on the basis that it was supposedly incomplete, not the nexus between the plaintiff and the booklet.

This contention is a mere afterthought. It is trite that evidence which is not challenged is taken to be admitted. Further, I do not find that the name of the driver which appears as “Cony” in the log-book as merely coincidental, as it is evidently a shortened version of the deceased driver of the commuter omnibus who was identified during the trial as Cornelius.

Ultimately therefore I hold the view that the plaintiff managed to show on a balance of probabilities that the cash-in log book reflects the daily takings of the commuter omnibus in question. Consequently, I find that the plaintiff managed to prove on a balance of probabilities that not only that she suffered damages for loss of business as a result of the loss of use of the commuter omnibus in question but also the quantum thereof.

The question of the currency

The parties haggled over the currency in which the award for damages (if any) should be denominated. The argument presented on behalf of the 2nd defendant was that a proper reading of s4(1)(d) of SI 33/19 reveals that the plaintiff’s claim should be construed as a claim in Zimbabwe dollars at par with the United States dollar. In this regard it was submitted that this issue revolves around the proper construction of the word “values” contained in the said provision which according to the 2nd defendant, denotes a notion of a set value which remains even where it is subjected to a certain conversion.

Further, ostensibly on the basis of the decision in Farai Bwatikona Zizhou v The Taxing Officer and Another SC7/20, it was contended by the 2nd defendant that it is incompetent to grant judgment in United States dollars.

The contrary argument by the plaintiff was that the amounts listed in the claims were correctly denominated in United States dollars as they are an accurate reflection of the actual loss she suffered as a consequence of the accident and that the claim denominated in United States dollars was unaffected by the above provision. According to the plaintiff, her summons having been issued on the 4th of March 2019, and therefore after the first effective date is not affected by the said Statutory instrument.

Section 4(1)(d) of SI 33 of 2019 (which has since been incorporated into Section 22(1) (d) and (e) of the Finance (No. 2) Act, 2019) provides as follows;

4. 	Issuance and legal tender of RTGs dollars, savings, transitional matters and

validation

Subject to section 5, for purposes of section 44 C of the principal Act, the Minister shall be deemed to have prescribed the following with effect from the first effective date –

....

....

....

that, for accounting and other purposes (including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (e) of the principal Act) shall on the first effective date be deemed to be values in RTGs dollars at a rate of one-to-one to the United States dollars; and

that after the first effective date any variance from the opening parity rate shall be determined from time to time by the rate or rates at which authorized dealers

As for the application of the above provision, the accident which gave rise to the claim having occurred on the 2nd of December 2019, and thus before the first effective date, (which was 22 February 2019) and summons having been issued in March 2019, and thus after the first effective date, the real question in my respectful view revolves around a determination of when the liability or obligation to pay the damages thereby occasioned arose. In this regard I do not believe that the 2nd defendant’s implied position that the obligation to pay arose contemporaneously with the accident can be sustained. What distinguishes the present case from that of the Zambezi Gas (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC 437/19 is the fact that whereas in the latter case, the liability or obligation to pay arose at the time the judgement of the court was given well before the first effective date, in the present matter, as of the 1st effective date such liability or obligation was yet to arise. As a matter of fact, the following excerpt by MALABA CJ from the Zambezi gas case (supra) is instructive:

“The liabilities referred to in s 4(1)(d) of S.I. 33/19 can be in the form of judgment debts and such liabilities amount to obligations which should be settled by the judgment debtor. In interpreting s 4(1)(d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of S.I. 33/19. The value of the assets and liabilities should have been expressed in United States dollars immediately before 22 February 2019 for the provisions of s 4(1)(d) of S.I. 33/19 to apply to them.

Section 4(1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date. If, for example, the value of the assets and liabilities was, immediately before the effective date, still to be assessed by application of an agreed formula, s 4(1)(d) of S.I. 33/19 would not apply to such a transaction even if the payment would thereafter be in United States dollars. It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.” (emphasis added)

The above remarks though made in the context of an obligation arising ex-contractu apply with equal force (subject to the relevant and necessary changes) to a liability or obligation arising ex-delictu. The import of which of which is that liability or obligation to pay damages in situations such as the present only arises when same have been properly quantified and demanded and not at the time at which the delict giving rise to such damages was committed.

The recent decision by KUDYA JA in Ingangulu Investments (Private) Limited & Another v National Railways of Zimbabwe SC 42/22 succinctly summarises the position. The following was stated at pages 5-6 of the cyclostyled judgment:

“It is also axiomatic that a delict, unlike a financial or contractual obligation, cannot be categorized as an asset or liability until it is voluntarily accepted as such by the wrongdoer or until such acceptance is foisted upon the wrongdoer by a court of competent jurisdiction. This is because a delict is committed and does not accrue like an asset nor is it incurred like a liability. In accounting terms, an asset or a liability has an ascertainable monetary value, which is recorded in the relevant books or statements of account. This is the position that pertains to a judgment debt. It constitutes an asset in the books of the judgment creditor and, conversely, a liability in the hands of a judgment debtor. Neither of these parties can treat a delictual claim as an asset or a liability. They can only do so after a competent court of law has made a determination on whether the claim establishes a liability and thereafter assesses the measure of such a liability. In any event, only a judgment debt and not a delictual claim can be executed in the manner contemplated in s 20 of the Act.

It is for these reasons that we agree with Mr Tshuma that the text, context and purpose of both the relevant provisions and the broader scheme of the Act incorporates a financial or contractual obligation concluded or incurred before the effective date and a judgment debt made on or before the effective date and not a mere delictual claim lodged on or before that date into the ranks of assets and liabilities.  We are not persuaded by the contrary contentions made by Mr Mazibuko that the text of the Act is wide enough to include delictual claims lodged before the effective date into the category of assets and liabilities that are payable at the one-on-one parity rate.”

The effectively smothers 2nd defendant’s contention that SI 33 of 2019 rendered plaintiff’s claim is payable at the rate of one is to one with the Zimbabwe dollar.

Regarding 2nd defendant’s position that plaintiff was required to claim her damages in local currency in view of legislation prohibiting the use of foreign currency for domestic transactions, sight must not be lost of the fact that at the time of the issuance of summons on the 4 March 2019, the United States dollar was legal tender in Zimbabwe alongside a basket of other currencies. That position only changed with the promulgation of SI 142 of 2019 which took effect on the 24th of June 2019, i.e. well after summons in this case was issued. Similarly, SI 212 of 2019 which prescribed civil penalties for the violation of this prohibition came into effect only on 27 September 2019. There was therefore nothing amiss about the plaintiff denominating her various claims in United States dollars at the time she did. Although in her summons the plaintiff did not seek a conversion of the sums claimed from United States dollars to the local currency that should take effect ex-lege, by operation of SI 33/2019.

The strict prohibition of the use of foreign currency for domestic transactions has to some considerable extent been relaxed by SI 85 of 2020 i.e. Exchange control (exclusive Use of Zimbabwe dollar for Domestic Transactions) (Amendment) Regulations, 2020 (No.2). This enactment currently permits any person to use foreign currency for the payment of goods and services using his or her free funds at the ruling rate on the date of payment. The Supreme Court decision in Zizhou v The Taxing Officer and Another (supra) which the 2nd defendant sought to rely on in this regard was handed down on the 20th of January 2020. That was before the promulgation SI 85 of 2020 which came into operation on the 29th of March 2020.

Ultimately therefore I am satisfied that the plaintiff managed to prove his claim for loss of use of the Nissan Caravan and is entitled to her claim for damages subject to the provisions of the Finance Act (No. 2), 2019.

Costs

The general rule is that the substantially successful party is entitled to its costs. In the present matter although the defendant was successful in wading off the claim for the value of the commuter omnibus, the plaintiff was successful in the rest of the claims, so he is entitled to costs.

However, I do not believe there is justification in awarding costs on the punitive attorney – client scale.

Accordingly, the following order is hereby made;

ORDER

IT IS ORDERED AS FOLLOWS:

An order of absolution from the instance is hereby granted in respect of the claim for the payment of US$12 666 being the value of the damaged commuter omnibus.

The claim for US$13 350 (or its equivalent in Zimbabwe dollars at the applicable inter-bank rate at the time of payment) succeeds, being damages for loss of business from the 2nd of December 2018 to the 28th February 2019.

The claim for damages of US$150 per day (or its equivalent in Zimbabwe dollars at the applicable inter-bank rate at the time of payment) succeeds calculated from the 1st of March, 2019 up to the time of full payment of the value of the commuter omnibus.

Interest on the sums referred to in (b) and (c) above at the prescribed rate from date of summons to date of full payment

2nd defendant to meet Plaintiff’s costs.

Ndlovu & Hwacha, plaintiff’s legal practitioners

Ahmed and Ziyambi; 1st and 2nd defendants’ legal practitioners