Brian Takura Moyo and Edge Water Farm (Pvt) Ltd v Methodist Church (Greendale)

On 25 September 2015, a fire occurred at number 9 Kennedy Road, Greendale. The plaintiffs alleged that the defendant, through its emissary Mr David Takavarasha Moto, wrongfully, unlawfully and negligently caused a fire at number 11 Mitchell Road, Greendale, which spread to the plaintiffs' property, destroying irrigation equipment (valued at $16,010.25) stored in a fowl run and other personal property. The irrigation equipment belonged to the second plaintiff and was in transit to its farm. The second plaintiff claimed $87,299.70 in consequential losses for failure to use the equipment. The first plaintiff testified that the property was ceded to him by his in-laws but he was not the registered owner. Witnesses testified they were not present when the fire started, were alerted by smoke and cracking sounds, and found the fowl run already on fire. One witness, the gardener, had seen Mr Takavarasha start a fire in the defendant's yard about 10 minutes before seeing smoke. A Fire Brigade officer attended the scene but conducted no forensic investigation into the cause or origin of the fire. No expert fire investigation evidence was led.

• Whether the first plaintiff had locus standi to sue for damages to property not registered in his name
• Whether the plaintiffs established a prima facie case warranting the defendant being put to its defence
• Whether the plaintiffs proved the defendant's negligence in causing the fire
• Whether the plaintiffs properly pleaded and proved vicarious liability
• Whether the plaintiffs adduced sufficient expert evidence regarding the cause and origin of the fire
• Whether absolution from the instance should be granted

Absolution from the instance granted. The plaintiffs were ordered to pay the defendant's costs.

In claims for damages arising from fire, the plaintiff must adduce expert forensic fire investigation evidence to establish the cause and origin of the fire. A firefighter trained only to extinguish fires is not qualified as an expert fire investigator. Proof of the occurrence of a fire alone does not give rise to an inference of negligence against the defendant. The plaintiff must prove: (1) where, when and how the fire started; (2) that the defendant failed to exercise reasonable care; and (3) that the lack of reasonable care caused the fire and resulting damage. When pleading vicarious liability, the plaintiff must: (a) cite the employee/agent who committed the delict as a party; (b) plead and prove the employment or agency relationship; (c) plead and prove the delict was committed within the course and scope of employment; and (d) establish a connection between the delict and the employee's duties. Locus standi to sue for damage to immovable property requires proof of registered ownership or that the property was validly ceded to the plaintiff. On an application for absolution from the instance, the test is whether there is evidence upon which a court directing its mind reasonably to such evidence could or might find for the plaintiff; the plaintiff must adduce evidence proving all essential elements of the claim to establish a prima facie case.

The court observed that the Zimbabwean Fire Brigade does not ordinarily concern itself with determining the cause and origins of fires, and unless it takes a different focus to its approach, it is not the appropriate authority to give expert opinion evidence on fire causation. There is no substitute for proper site investigation conducted by a qualified fire investigation expert. The court noted that admissions or apologies made on a without prejudice basis in settlement discussions do not constitute findings of negligence and do not discharge the plaintiff's onus to prove their case. The court also commented that the fact that Mr Takavarasha was convicted in criminal proceedings for negligently causing a fire does not bind the civil court, as each case must be determined on its own circumstances and evidence. The court remarked that "this case was poorly prosecuted and presented," indicating its view that counsel for the plaintiffs failed to adequately prepare and prove their case. The court also noted that it would not analyze the evidence on quantum of damages since the plaintiffs failed to establish the defendant's negligence in causing the fire.

This case is significant in Zimbabwean law for establishing important principles regarding fire damage claims. It emphasizes that: (1) plaintiffs claiming negligence in fire cases must adduce expert forensic fire investigation evidence to establish the cause and origin of the fire—firefighters who merely extinguish fires are not qualified as expert fire investigators; (2) proof of the occurrence of a fire alone does not give rise to an inference of negligence; (3) plaintiffs must prove not only where and when a fire started but how it started and how the defendant's negligence caused it; (4) vicarious liability must be properly pleaded, including citing the employee/agent as a party, establishing the employment relationship, and proving the delict occurred within the course and scope of employment; (5) locus standi requires plaintiffs to prove they are registered owners of immovable property or have a direct and substantial interest in the subject matter; and (6) admissions or apologies made on a without prejudice basis do not discharge the plaintiff's onus to prove a prima facie case. The judgment provides comprehensive guidance on the evidentiary requirements for fire negligence claims and the proper application of the absolution from instance test.