On 19 March 2003, the plaintiff claimed he was asleep at his mother's house (number 2365 St Marys Chitungwiza) when he was awakened by a knock on the door. He alleged that when he went outside, he was assaulted by members of the Zimbabwe National Army (ZNA) who were wearing camouflage uniforms and red berets and carrying rifles. He claimed he was taken with another person (Danmore) to various neighbours' houses where they were further assaulted with sticks, sjamboks, avocado tree branches, and an iron bar. They were allegedly loaded onto ZNA trucks and later dropped off along the Mbare-Chitungwiza road. The plaintiff then went to Shurungwi for about three weeks before returning and seeking medical attention through his political party (MDC) offices. He was examined by Dr Coric on 14 April 2003, approximately 25 days after the alleged assault. The plaintiff initially claimed Z$500,000 in damages but amended his claim to US$685 (comprising damages for shock, pain and suffering, loss of amenities of life, and contumelia). The defendant denied that any ZNA members assaulted the plaintiff and contended that ZNA members were only deployed in the area from 20-26 March 2003, not on 19 March 2003.
The plaintiff's claim was dismissed with costs.
Where a plaintiff's version of events as contained in pleadings filed of record is materially inconsistent with the plaintiff's evidence in court on aspects relevant to the issues to be determined, and where the plaintiff cannot adequately explain such inconsistencies, the plaintiff has not discharged the onus of proof on a balance of probabilities. In cases involving mutually destructive stories, the court must be satisfied that the version given by the party on whom the onus rests is true and the other false; unless this can be found, the plaintiff cannot be said to have discharged the onus. Material discrepancies that seriously affect a party's credibility cannot be overlooked and will result in a failure to discharge the burden of proof.
The court observed that the camouflage uniform description provided by the plaintiff was "common" and this "would not have been his first time to see such a uniform with such colors" - being able to describe commonly worn ZNA uniforms cannot on its own indicate that the plaintiff actually saw soldiers on the night in question. The court noted that red berets are worn by members of the military police who, according to the defence witness, are not deployed on operational duties, though the plaintiff did not rebut this evidence. The court suggested that the change in the medical affidavit from "political opponents" to "ZNA officers" pointed to "someone intent on either embellishing his evidence or simply not being candid with court at all" and reflected "the desire to shift blame for what may have befallen the plaintiff on the night of 19 March 2003 from his political opponents to being members of the Zimbabwe National Army."
This case is significant in Zimbabwean jurisprudence for its application of evidentiary principles regarding credibility assessment and burden of proof in civil cases. It emphasizes that material inconsistencies between pleadings and evidence can be fatal to a plaintiff's case, particularly where the plaintiff bears the onus of proof. The judgment reinforces the principle from Matiza v Pswarayi that a plaintiff must present a consistent and credible version of events to discharge the burden of proof on a balance of probabilities. The case also demonstrates judicial scrutiny of medical evidence, particularly where there are unexplained changes in the history recorded in medical affidavits. It serves as a reminder that parties cannot shift their version of events between pleadings and evidence on material matters without seriously undermining their credibility. The case is also relevant in the context of claims against the state for alleged wrongful acts by security forces, establishing that courts will require cogent and consistent evidence to establish state liability.