Madzongo v Besent (HC 6903 of 2007) [2009] ZWHHC 33 (24 February 2009)

HH 33/09 HC 6903/07 LOUIS MADZONGO versus GLADYS BESENT HIGH COURT OF ZIMBABWE CHATUKUTA J HARARE 16 & 19 September 2008 & 25 February 2009 Civil Trial Mr Muchandiona, for the plaintiff, Ms Nemaramba, for the defendant, CHATUKUTA J: On 4 December 2007, the plaintiff issued summons claiming damages in the sum of $5 583 250 000.00 (old currency) together with interest thereon, at the prescribed rate, from the date of summons to the date of payment and costs of suit. The summons was amended on two occasions before trial. In the last amendment, the amount claimed was deleted and substituted with the sum of $69 266 436.00 (revalued). The claim arose from a motor accident which happened at Belgravia Shopping Centre, Harare on 15 September 2007. The defendant had been driving the plaintiff’s vehicle, a Toyota Cressida, registration No. AAW 0053. The defendant contested the claim on the basis that the plaintiff voluntarily assumed risk by allowing her to drive his vehicle unsupervised, well aware that she was not a licensed driver. The defendant further denied that she drove negligently. I perceive the issues as being mainly two. The first issue is whether or not the defendant was liable for the damages suffered by the plaintiff. In the event that I hold that the defendant was liable, the second issue would be whether or not the plaintiff is entitled to the quantum of damages claimed. The plaintiff testified that on 15 September 2007 at about 2200hours, he was driving along Second Street Extension, when he observed the defendant and her husband pushing a Nissan Sunny. He stopped and assisted in pushing the vehicle to a nearby HH 33/09 HC 6903/07 service station. As it was late, and for security reasons, he requested the defendant to remain in his vehicle. As he was pushing the vehicle, he realized that it was not safe for the defendant and the child to remain in his vehicle where he had parked it. He inquired from the defendant’s husband if the defendant was a licensed driver so that she would drive his vehicle to the service station. The husband advised him that she was a licensed driver. The plaintiff then gave the defendant his car keys and went back to push the defendant’s vehicle. When they got to the service station, he realized that his vehicle was still parked where they had left it. They went back to his vehicle. Upon arrival, the defendant indicated that she could not start the vehicle. He advised her that the vehicle had an automatic gear transmission system. He told her that the vehicle could only be started when in the parking gear. The defendant then opened the rear doors for the plaintiff and her husband to get into the vehicle. She started the vehicle and took off at an alarming speed. She failed to negotiate a right turn. The plaintiff could not assist in controlling the vehicle as he was seated in the back. The defendant then rammed into a pharmacy, after having leaped over the pavement in front of the pharmacy. The plaintiff testified that the defendant did not tell him that she was an unlicenced driver still undergoing driving lessons. They had not met before. It was late at night and not safe to be teaching someone to drive. He would therefore not have allowed the defendant to drive if he had known that she was not a licensed driver. He denied forcing the defendant to drive the vehicle. He would have sat in the front passenger seat, had he forced her to, instead of the back seat. He would have also expected the defendant to refuse to drive the vehicle if she was unlicenced and not familiar with an automatic vehicle. The vehicle sustained serious damages. He attempted to have the vehicle repaired but the cost was prohibitive. He was only able to purchase headlamps, shock absorbers and the front grill. Some of the garages did not have the required spare parts in stock. The defendant’s husband offered to assist in repairing the vehicle. He paid a total of $5 billion (old currency) towards the repair of the vehicle but the amount was too little. As at the date of hearing, he had not used the money neither had he returned it to the defendant’s husband. The plaintiff confirmed that the amount that was paid by the HH 33/09 HC 6903/07 defendant’s husband fell short of the amount he had initially claimed in his summons by only $583 250 000.00 (old currency). He testified that the amount constituted the damages he had suffered as a result of the accident and soon after the accident. However, due to inflation, the cost of repairing the vehicle had risen to $69 266 436.00. It is this amount that he sought to claim as damages. The plaintiff closed his case. The plaintiff gave his evidence well and impressed the court as an honest witness. He did not appear to be exaggerating his evidence. He withstood cross examination well and did not waiver from his evidence-in-chief. The defendant took the witness stand. She testified as follows: On 15 September 2007 the plaintiff stopped to help her and her husband after their vehicle had developed a mechanical fault. He offered to assist her husband to push the vehicle to safety. He inquired whether she could drive. She replied that she was still going for driving lessons. The plaintiff then gave her his car keys. When she got into the vehicle, she noticed that the vehicle was different from the ones that she had driven before. She then remained seated in the vehicle until her husband and the plaintiff returned. She told the plaintiff that she could not drive the vehicle. The plaintiff told her to get into the driver’s seat and he got into the back seat together with her husband. He forced her to drive the vehicle despite having told him that she was not qualified to drive. He then gave her instructions on how to operate the vehicle and she started driving the vehicle. He instructed her to turn. The vehicle gained speed. He then instructed her to apply brakes. She could not locate the brakes. Instead, she stepped onto the accelerator and ended up in the pharmacy. She testified that sometime after the accident, she was advised by her husband that the plaintiff had sent a quotation of repairs to the vehicle and the plaintiff’s banking details where the defendant would deposit the money stated in the quotation. Her husband made payments totaling $5 billion as an out of court settlement. She testified that the payment was in satisfaction of the claim by the plaintiff although there was an outstanding balance. The payment was however made without her consent. It is my view that the defendant was not a credible witness. She was evasive under cross examination. She could not explain why the plaintiff, a total stranger who they had met at 10pm, would abandon his trip to teach her how to drive. She could not HH 33/09 HC 6903/07 explain why, if he was teaching her, he sat in the back seat. She further could not explain how the plaintiff had forced her to drive the vehicle, particularly when he knew that she was not familiar with the plaintiff’s vehicle and was still undergoing driving lessons. She failed to explain the inconsistency in her evidence that in one breathe she accepted that payment made by her husband was in full and final settlement of plaintiff’s claim and in the other, deny liability. However, under re-examination she conceded that she was accepting liability for damaging the plaintiff’s vehicle. The second defence witness was Wilbert Tunha, the defendant’s husband. His evidence was substantially the same as the defendant’s. He testified that plaintiff gave him the quotation for $5 583 250 000 (old currency). He made two payments into the plaintiff’s account to settle the amount stated in the quotation. The payment was made against the defendant’s will. He was of the view that effecting payment would bring the matter to rest. He did not pay the balance because the plaintiff thereafter issued summon. Turning to the issues for determination, as alluded to earlier, there are two issues for determination. The first issue is whether or not the defendant was liable for the damages suffered by the plaintiff. In the event that I hold that the defendant was liable, the second issue would be whether or not the plaintiff is entitled to the quantum of damages claimed. It is not in issue that the defendant was driving the plaintiff’s vehicle when the accident occurred. The plaintiff’s vehicle was extensively damaged. The defendant sought to avoid liability by raising the defence of volenti non fit injuria. As rightly submitted by Mr. Muchandiona, for the plaintiff, the onus to establish the defence rested on the defendant. The defendant conceded under re-examination that she was liable for the damages suffered by the plaintiff. She further conceded that payment made by her husband to the plaintiff was settlement of the plaintiff’s claim. In view of the concessions, liability is therefore no longer in issue. I therefore do not consider it necessary to dwell on the defendant’s defence of volenti non fit injuria. The only remaining issue for determination is the quantum of damages. It is common cause that the plaintiff submitted for payment to the defendant an initial quotation dated 31 October 2007 for an amount of $583 250 000.00 (old currency). It was endorsed that the quotation was valid for forty eight hours only. Payment was HH 33/09 HC 6903/07 only effected on 4 and 17 April 2008. The plaintiff amended his pleadings by altering the damages to read $69 266 436 (revalued). The new amount was as per a quotation dated 11 September 2008. Both parties accepted that delictual damages are calculated as at the time of the delict. This principle of nominalism is clearly enunciated in SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A). It was stated in that case that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt according to when the plaintiff sought to exact it and that the result was in conflict with the principle of nominalism. The principle of currency nominalism holds that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of the currency. The principle has been applied in our jurisdiction in cases such as Muzeya NO v Marais & Anor HH- 80-04, Monica Komichi v David Edwin Tanner & Anor HH 104/05, Edward Marume & Anor v Todd Muranganwa HH 27/07. CHINHENGO J had this to say in Muzeya NO v Marais & Anor, after citing with approval SA Eagle Insurance Co Ltd v Hartley (supra), at p11: “I think that it is correct to adopt the principle of nominalism in dealing with all obligations sounding in money. I appreciate that the rate of inflation in Zimbabwe had been high and as stated by Mr. Muskwe, it is presently above 500%. But a departure from the principle of nominalism will create such uncertainty in the law that the whole system, will be unworkable. The monetary obligation to be discharged will then depend on when the plaintiff sought to exact it and, even more ominously, on when the court handed down its judgment. Therefore a debt sounding in money must be paid in terms of the nominal value of the currency irrespective of any fluctuations in its purchasing power. In any event I think the principle of nominalism is even-handed because it places the risk of depreciation of the currency on the creditor and that of appreciation on the debtor.” I do not find any basis for departing from this principle either. The plaintiff relied in its submissions in the cases of Leighton v Eagles Insurance Co. (Pvt) Ltd & Ors 2002 (2) ZLR 592 (H) and Cargo Carriers (Pvt) Ltd & Anor v Nettleford & Anor 1991 (2) ZLR 139 (SC). In Leighton v Eagles Insurance Co. (Pvt) Ltd & Ors the court deviated HH 33/09 HC 6903/07 from the principle of nominalism on the basis that the defendant had filed its Plea more than 5 years after the summons was served on it. However, the court at p597 accepted this to be a departure from the usual principle of determining patrimonial loss. The court in Cargo Carriers (Pvt) Ltd & Anor v Nettleford & Anor did not discuss the principle of nominalism and therefore is not, in my view, of any assistance to the plaintiff. It is my view that the plaintiff has therefore failed to establish the damages in the sum of $69 266 436.00 (revalued). In any event the plaintiff was paid almost the entire initial amount claimed. The outstanding balance of $583 250 000.00 (old currency) is of no value now (even at the time trial commenced) because of the removal of zeros over the years by the Reserve Bank of Zimbabwe. It is my view that there was no basis for the plaintiff to bring this action. In the result, the plaintiff’s claim is dismissed with costs. Danziger, plaintiff’s legal practitioners Karuwa & Associates, defendant’s legal practitioners