JANDLES v MUDANGA
HIGH COURT, HARARE
[Civil Trial HH 178-16]
January 25, 26 and March 9, 2016
Delict – Liability under the actio de pastu – Sufficiency of evidence in assessment of damages.
The plaintiff’s claim was for damages suffered by her as a result of the defendant’s 52 herd of cattle straying from his farm into her farm and thereby grazing, eating and damaging the plaintiff’s crops. The crops were at the transplanting, flowering and harvesting stages respectively causing the plaintiff to lose entirely the said crops.
Held, that defendant’s cattle strayed into the plaintiff’s farm and caused damage as alleged in the plaintiff’s declaration.
Held, further, that plaintiff was not at fault.
Held, further, that although the receipts for the inputs were not produced, the court was satisfied that the Agricultural Extension Officer’s report gives a reasonable estimate of the damages suffered and that since receipts for the inputs were not produced a round figure of US$ 10 000 represents the damages suffered by the plaintiff.
Bwanya v Matanda 2000 (1) ZLR 546 (H), followed
Panhowe Farm (Pvt) Ltd v J Mann & Co HH 122-04 (unreported), referred to
Van Zyl v Kotze 1961 (4) SA 214 (T), referred to
Feltoe G A Guide to the Zimbabwean Law of Delict (3rd edn, Legal Resources Foundation, Harare, 2006)
Voet J Commentarius Ad Pandectas 9.1.1, 9.1.3
OD Mawadze, for the plaintiff
TI Gumbo, for the defendant
The plaintiff (Valerie Jandles) issued out summons against the defendant (George Mudanga) on 3 July 2012 claiming US$ 10 233 (Ten Thousand Two Hundred and Thirty Three Dollars). The amount claimed by the plaintiff in the summons pertains to damages suffered by her as a result of the defendant’s 52 herd of cattle straying from his farm into the plaintiff’s farm and thereby grazing, eating and damaging the plaintiff’s crops which were at the transplanting, flowering and harvesting stage causing the plaintiff to lose entirely the said crops. The crops damaged included tobacco and rape seedlings, sugar beans, maize and vegetables.
The plaintiff also claimed interest at the prescribed rate as well as costs of suit on a legal practitioner and client scale against the defendant.
The defendant denied liability culminating in the matter being referred to trial.
In his plea to the claim the defendant stated among other things that “in actual fact the plaintiff is the one who borrowed the defendant’s bull for purposes of breeding. The defendant accepted this and the bull was in the custody of the plaintiff at her farm in her pens. The defendant learnt that the bull is the one which broke the security fence of the plaintiff and thereby caused other cattle to stray into her crops and destroy it. In the circumstances the damage which was caused by her cattle as a result of the acts of the bull in question cannot be attributed to the defendant and by virtue of having taken in the bull into her custody for purposes of breeding she assumed liability for any damage which would arise as a result of the acts of the bull in question.”
The joint pre-trial conference minute by the parties raised two issues for consideration during trial which were:
(1) Whether or not it were the defendant’s cattle that strayed into plaintiff’s farm and caused damage to her crops?
(2) If the answer to the above is in the affirmative, what is the quantum thereof?
I would firstly deal with the first point of consideration placed for trial by the parties.
Whether or not it were the defendant’s cattle that strayed into the plaintiff’s farm and caused damage to her crops?
The plaintiff in her evidence-in-chief submitted that the defendant is her neighbour at Chicago Farm Corburn Estates. She knew the defendant’s 52 herds of cattle and that it was not the first time for the cattle to stray onto her farm. Further, she said that the defendant’s cattle have long yellow and green ring tags and some have blue tags depending on where the cattle had been bought from. In addition to that the defendant had a mixed breed (i.e. Brahmans and Hard Mashona type/herford). She further said that with cattle if one does not know the owner, you leave them and they lead one to their place.
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