Plaintiff contracted defendant, a security services provider and public carrier, to transport 11.95kg of gold bullion valued at US$675,000 from How Mine to Bulawayo. During the bullion run on 4 October 2022, at approximately 11km from the mine along Old Tuli Road, the convoy was ambushed by approximately 15 armed robbers. The robbers used a Toyota GD6 to block the middle vehicle carrying the bullion, while armed men emerged from the bushes wielding AK-47 assault rifles and shotguns. Defendant's security guards, riding in two vehicles with 11-12 personnel, surrendered without resistance. The robbers disarmed the guards, assaulted them, accessed the secured bullion compartment, and escaped with the gold. Plaintiff's Chief Security Officer, Mr. Makoni, who was following in a separate vehicle, retreated then pursued the robbers, firing shots that immobilized one vehicle and allegedly injured one robber fatally. The gold was never recovered. Defendant raised a counter-claim for US$54,617.18 for outstanding services rendered.
1. Plaintiff succeeds in its main claim against defendant. 2. Defendant's claim in reconvention is dismissed. 3. Defendant is ordered to pay plaintiff US$675,000.00 plus interest at 5% per annum from 4 October 2022 until full payment. 4. Defendant to pay costs of suit on the ordinary scale.
A public carrier bears strict liability for loss of goods entrusted to it under the Praetor's Edict. To successfully plead vis major as a defence to such liability, the carrier must prove on a balance of probabilities that: (1) the impossibility of performance was objective and absolute, not merely subjective or relative; (2) the event was truly unforeseeable and unavoidable; (3) the carrier did not voluntarily assume the risk by accepting inadequate security arrangements; and (4) the carrier took all reasonable steps within its power to prevent the loss. A carrier cannot rely on vis major where it knowingly undertook carriage with insufficient security measures, deployed non-armoured vehicles when armoured ones were necessary, and instructed personnel to surrender rather than resist. The defence fails where supported only by partisan opinion evidence without independent expert corroboration, and where the carrier's own conduct (failure to use panic buttons, communication devices, or pursuit) suggests the loss was preventable.
The court expressed concern about the unprofessional manner in which both parties approached bullion runs: operating on oral contracts, failing to implement known security improvements, and continuing service despite recognized inadequacies. The court noted the tragic precedent of Independence Mining where guards were killed on the same route, emphasizing the need to balance life preservation with cargo protection. Chilimbe J observed that the decision to preserve life over cargo, while commendable, effectively constitutes assumption of risk by the carrier. The court commented on the absence of CCTV footage and video evidence despite the technological nature of modern security services, describing this as regrettable. The judgment also noted the paradox that the same insufficient security arrangements defendant relied upon to prove vis major were those it voluntarily accepted when contracting, questioning whether one can claim unforeseeability of a consequence flowing from a known inadequacy. On currency obligations, the court acknowledged the challenges of pricing during economic volatility but held parties to their express contractual terms.
This judgment clarifies the strict liability regime for public carriers under the Praetor's Edict in Zimbabwean law and the stringent requirements for proving the defence of vis major/supervening impossibility. It establishes that: (1) carriers cannot rely on vis major where they voluntarily accepted contracts with known inadequate security measures; (2) instructing personnel to prioritize life preservation may constitute assumption of risk of cargo loss; (3) the defence of supervening impossibility requires objective proof beyond opinions of interested parties; (4) allegations of collusion require substantive evidence beyond speculation; (5) the court will not permit carriers to benefit from their own inadequate security arrangements. The case demonstrates judicial reluctance to exonerate parties from contractual obligations voluntarily assumed, particularly where the risk was foreseeable and preventable measures were not implemented. It also addresses currency obligations in contracts during economic instability, holding parties to express alternative payment terms.