MASENDEKE v KUKURA KURERWA BUS SERVICES (PVT) LTD

HIGH COURT, HARARE

[Opposed Application HH 598-16]

October 12, 2016

CHIGUMBA J

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Protection against discrimination – Discrimination on grounds of disability – Given legislative effect by Disabled Persons Act [Chapter 17:01].

Contract – Termination – Breach – Anticipatory breach – What is – Breach committed before performance is due.

Practice and procedure – Pleadings – Cause of action – Need to specify cause of action – Impermissible to plead one cause of action but rely on another one.

The plaintiff was disabled, being unable to walk on his own without assistance. He was taken by his sister to catch a bus operated by the defendant company. He was accosted by defendant’s conductor as he was boarding the bus, and asked rude and embarrassing questions. He was given no assistance to board the bus, on which there was no area reserved for persons with disabilities. He eventually found a seat for himself. The conductor was rude to him, and the plaintiff withheld payment of the bus fare after the bus had started moving, unless the conductor apologised to him. The conductor refused to give the plaintiff his name and contact information. At the next town he was unceremoniously ejected from the bus by the conductor who with the assistance of two other men, manhandled him off the bus and dumped him on the ground on his back. He was humiliated and left stranded on the side of the road.

The plaintiff issued summons against the defendant, claiming, amongst other things, damages for violation of his freedom from discrimination, for injuria and for assault suffered as a result of being denied transport services on account of his disability, as well as interest and costs. The basis of his claim was that the defendant was liable in terms of the Disabled Persons Act [Chapter17:01], being vicariously liable for the wrongful conduct of its employees who acted within the course and scope of their employment when they verbally abused the plaintiff and forcibly threw him off the bus. The defendant, he claimed, was also liable for injuria for negligence because it owed a duty of care to disabled persons. The defendant’s treatment of the plaintiff was discriminatory, contrary to s 56 of the Constitution of Zimbabwe 2013.

The matter was referred to trial for determination of whether plaintiff was entitled to payment of the sum claimed, or to any sum, from the defendant for violation of his freedom from discrimination.

At the conclusion of the plaintiff’s case, the defendant applied for absolution. It also argued that the plaintiff’s case was confined to the Disabled Persons Act and that he could not rely on the aquilian action, as that had not been specifically pleaded. It was submitted that the cause of action in terms of the Disabled Persons Act was a narrow one which should be confined to what the lawmaker provided. The guiding phrase, it was submitted, was “on the ground of disability alone”, which translated into the following elements which a plaintiff must prove in order to establish a cause of action:

1. That the plaintiff was disabled;

2. That he sought access to a service or amenity which is ordinarily offered to members of the public at large;

3. That he was denied the service only because he was disabled.

It was common cause that failing to pay the bus fare was an offence in terms of s 43 of the Road Motor Transportation Act [Chapter 13:15]. The defendant argued that this constituted an anticipatory breach of the contract.

The plaintiff argued that he had established a prima facie case against the defendant on the issue referred to trial, and that the evidence adduced on his behalf satisfied the definition of discrimination on the basis of disability set out in s 56 (3) and (4) of the Constitution.

Held, that it must be shown to have been established, on a prima facie basis, that a person was treated in a discriminatory manner for the purposes of s 56 (3) of the Constitution by being subjected directly or indirectly to a condition, restriction or disability which other people were not, or that other people were accorded directly or indirectly a privilege or advantage which he was not accorded. Although the pleadings did not expressly and specifically rely on s 56 of the Constitution to found a cause of action, it is clear that the Act was born of the provisions of s 56 (6) of the Constitution. It provided for and protected the rights of disabled persons.

Held, further, that s 176 of the Constitution itself provided that the court has inherent power to protect and regulate its own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of the Constitution. The plaintiff could rely on s 56 of the Constitution because it could not be said, as a matter of law, that he did not plead it as the basis of his cause of action.

Held, further, that by imposing a condition which did not form part of the original contract of carriage, the plaintiff in effect repudiated the contract, even though that may not have been his express intention. He created a different contract. The question then became one of whether the defendant owed the plaintiff a duty of care, or any duty at all, when the plaintiff refused to pay the fare and the contract of carriage was repudiated.

Held, further, that the ejectment of the plaintiff from the bus was for failure to pay the fare, and not because of his disability. The plaintiff would have been transported to his destination had he paid the requisite fee. The plaintiff repudiated the contract of carriage when he refused to pay the fare. He was not entitled to any carriage by the defendant unless he paid the fare. The cause of action based on the Disabled Persons Act was not proved on a prima facie basis.

Held, further, that the purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed. A pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.

Cases cited:

Bailey NO v Trinity Engineering (Pvt) Ltd & Ors 2002 (2) ZLR 484 (H), referred to

Brooks v Minister of Safety and Security 2009 (2) SA 94 (SCA), referred to

Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A), approved

Courtney-Clarke v Bassingthwaighte 1990 NR 89 (HC); 1991 (1) SA 684 (Nm), applied

Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd & Anor 2013 (2) ZLR 309 (S), followed

Gordon Lloyd Page & Associates v Rivera and Another 2001 (1)
SA 88 (SCA), applied

Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A), referred to

Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D), referred to

Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S), referred to

Makhanya v University of Zululand 2010 (1) SA 62 (SCA), applied

McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16, referred to

Metalmil (Pty) Ltd v AECI Explosives and Chemicals Ltd 1994 (3)
SA 673 (A), referred to

Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H), referred to

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