MUNGATE v CITY OF HARARE & ORS

HIGH COURT, HARARE

[Civil Trial HH 328-16]

October 28 and 29, 2015 and June 1, 2016

MUREMBA J

Damages  – Delict  – Liability for injury  – Quantum of damages.

Plaintiff suffered injuries as a result of having fallen into a catch pit belonging to the defendants while rushing to board transport from his workplace. The catch pit was not closed or covered at the material time. There was no warning sign of the hazardous catch pit and there were no street lights to illuminate the area and the grass was unkempt.

Held, that the excuse that the City of Harare is facing financial challenges is a lame one. A person is liable if, in terms of the law, he has a legal obligation to take preventive action or positive action to prevent harm from occurring.

Held, further, that the defendant was not entitled to damages for contumelia as contumelia was based not on negligence but on intention

Held, further, that in making claims, litigants should claim reasonable and realistic amounts guided by previously decided cases as the major reason why such cases failed to settle without proceeding to trial is because of the ridiculous and unrealistic figures that are claimed by plaintiffs.

Cases cited:

Administrator-General, South West Africa, and Others v Kriel 1988 (3) SA 275 (A), referred to

Butise v City of Johannesburg and Others 2011 (6) SA 196 (GSJ), followed

Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H), referred to

Gwiriri v Star Africa Corporation (Pvt) Ltd t/a Highfield Bag (Pvt) Ltd HH 20-10 (unreported), referred to

JDM Agro-Consult & Marketing (Pvt) Ltd v Editor, The Herald Newspaper & Anor 2007 (2) ZLR 71 (H), followed

Kruger v Coetzee 1966 (2) SA 428 (A), applied

Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S), applied

Robinson v Fitzgerald 1980 ZLR 508 (GD), referred to

Book cited:

Feltoe G A Guide to the Zimbabwean Law of Delict (3rd edn, Legal Resources Foundation, Harare, 2006)

T Christmas, for the plaintiff

C Kwaramba, for the defendants

MUREMBA J:

Having finished this trial on 29 October 2015, the defendants’ counsel should have filed his closing submissions by 16 November 2015, but he did not. He only filed them on 9 February 2016, after numerous communications by the Registrar. To make matters worse no explanation was given for the delay. I find this behaviour by the defendants’ counsel shameful, disrespectful and inexcusable. It is my hope that in future he will not repeat this.

On 28 March 2014, at around 1900 hours the plaintiff was rushing to board transport from his workplace along Simon Mazorodze Road in Harare. He alleges that as he was walking he fell into a drainage tunnel belonging to the defendants. He suffered injuries and had to be treated. As a result, he is claiming damages totaling US$ 305 796 broken down as follows:

(a) Shock, pain and suffering  – US$ 50 000

(b) Loss of amenities of life  – US$ 100 000

(c) Disability  – US$ 100 000

(d) Medical expenses  – US$ 5 796

(e) Contumelia  – US$ 50 000

In his declaration the plaintiff made averments that the defendants were negligent in that they failed to cover the drainage tunnel or to put up any cautionary signs warning pedestrians of the existence of the uncovered drainage tunnel. The plaintiff stated that when he fell into the tunnel he broke his leg. Consequently he experienced excruciating pain and was left with a permanent limp. He can no longer conduct his usual day to day work and leisure activities without the aid of crutches or a walking stick. He averred that he incurred medical expenses and also suffered great humiliation and opprobrium as he fell into the tunnel in full view of other commuters and onlookers. It is for these reasons that the plaintiff is claiming the damages stated above.

In their plea the defendants denied liability, saying that they were not negligent in any way. They said that the plaintiff did not fall into their tunnel. They also denied that the plaintiff suffered injuries that he alleges he suffered. They also denied that he is now unable to walk and do his usual day to day work or leisure activities. The defendants also denied that the plaintiff incurred several medical expenses and that he suffered any humiliation or opprobrium. The defendants averred that the plaintiff’s misfortune, if any, was as a result of his failure to keep a proper look out and acting without due care and attention.

During trial the plaintiff was the sole witness in his case whilst the defendants led evidence from one witness, George Munyonga who is employed as the first defendant’s Deputy Chief Engineer, responsible for roads. The duties of George Munyonga involve constructing, planning, maintaining road infrastructure, budgeting and distributing resources. He has been working for the City of Harare for 23 years.

As George Munyonga testified, it was apparent that the only defendant who should have been sued in this case is the City of Harare because of the three defendants, it is only the City of Harare which is a person, a legal persona to be specific. The second and third defendants are neither natural nor legal persons, but offices. In his declaration the plaintiff said that he was suing the second defendant, the Mayor in his official capacity as the Executive Authority officially in charge of the City of Harare. The plaintiff also said that he was suing the third defendant, the Town Clerk in his official capacity as the official in charge of the performance management, reporting, and high level coordination of municipal entity oversight in the City of Harare. Offices cannot be sued because they are neither natural persons nor legal persons. It is unfortunate that the defendants’ counsel was not alive to this issue as he never made an objection to the second and third defendants having been sued. When I sat down to write this judgment I decided to do a research on the issue because I continuously had this nagging thought that the second and third defendants ought not to have been sued because as non-entities they have no locus standi to sue or be sued.

In my research I came across the case of JDM Agro-Consult & Marketing (Pvt) Ltd v Editor, The Herald Newspaper & Anor 2007 (2) ZLR 71 (H). In that case at the start of the trial the defendants took a preliminary point to the effect that the summons filed of record was invalid in that there were no defendants before the court. They said that the Editor of the Herald cited as the first defendant did not exist. They argued that the editor of a newspaper is a position within the structures of a newspaper and is neither a natural nor a legal person. In upholding the preliminary point GOWORA J (as she then was) quoted with approval what was said in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) which was to the effect that:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names in the summons as being those of the defendant, the summons is null and void ab initio”.

GOWORA J (as she then was) went on to say:

“The editor of a newspaper is the person responsible for the editorial content of such newspaper. It is a position that is occupied for the appropriate period by such individual employed in that capacity. It is therefore an occupation wherein the occupant can change from time to time. It is not a natural or legal person and there is no person identified by that name. The citation of the first defendant in that form is therefore irregular. It matters not, in my view, that the two defendants entered appearance to defend and proceeded to file a plea. The process of filing pleadings under those names would not have imbued the summons with any form of legality. There was no summons for them to plead to given that there were no persons answering to the names on the summons. They cannot be identified as such.”

In casu the Mayor and Town Clerk are positions or offices within the structures of the City of Harare. They are neither natural nor legal persons. There are no persons identified by those names. The occupants of these offices or positions change from time to time. Clearly the citation of these two defendants is irregular as these parties do not exist. Non-entities cannot be sued and neither can they sue. As such the second and third defendants are not before me. I will therefore disregard them in my judgment. It does not matter that they had defended this matter right from the start up to the end of the trial. Consequently any reference to the defendant in this judgment will be in reference to the first defendant, the City of Harare.

From the evidence that was led from the plaintiff and from George Munyonga it emerged that there are some issues that are common cause which are as follows:

The drainage tunnel which the plaintiff was referring to in his summons is actually a catch pit. According to George Munyonga a catch pit is an aperture or hole or opening which is constructed to receive storm water from the road and the water goes into the drainage system which is under ground. The catch pit that the plaintiff says he fell into exists and it is along Simon Mazorodze Road. The catch pit is situated on an island which is between the road and the pedestrian or foot path. At the time of the trial on 28 October 2015, the catch pit in question was not covered. In other words it did not have a lid or a cover which is called a steel grating which is normally used to cover such catch pits. The catch pit that the plaintiff identified as the one that he fell into belongs to the City of Harare. Its dimensions which were given by George Manyonga are 1 m long, 0.5 m wide and 1.6 m deep.

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