Chido Matewa v Zimbabwe Electricity Transmission & Distribution Company

In October 2009, the plaintiff, a farmer in Nyazura, alleged that the defendant's employees unlawfully removed electrical gadgets from her farm. After the employees were apprehended, the defendant allegedly made four undertakings to restore electricity supply to the farm. Relying on these undertakings, the plaintiff planted 30 hectares of tobacco and 25 hectares of sugar beans. The defendant allegedly failed to honor the undertakings, resulting in the crops suffering moisture stress and wilting due to lack of irrigation. The plaintiff claimed damages of US$500,000 for actual loss of earnings and US$200,000 for consequential loss. The defendant denied removing any electrical fittings, stating that the farm had no electricity since 2006 due to vandalism of power lines and transformers. The defendant claimed the operation on 5 October 2009 was lawful and intended to recover idle electrical equipment to prevent theft or vandalism.

• Whether the defendant unlawfully and wrongfully removed electrical equipment from the plaintiff's farm
• Whether the defendant made undertakings to restore electricity supply to the farm
• Whether the plaintiff proved the elements of the aquilian action (wrongful conduct, financial loss, intention or negligence, causation)
• Whether the plaintiff proved damages for actual and consequential losses
• Whether the plaintiff discharged the onus of proof on both liability and quantum

The plaintiff's claim was dismissed with costs.

To succeed in an aquilian action, the plaintiff must prove on a balance of probabilities: (1) wrongful or unlawful conduct (act or omission) by the defendant; (2) financial loss resulting from such conduct; (3) that the defendant inflicted the loss intentionally or negligently; and (4) a causal link between the defendant's conduct and the loss. The plaintiff bears the onus of proving all elements of the claim. Where the plaintiff relies on undertakings or promises allegedly made by the defendant's employees, and those employees either deny making such undertakings or are not called to testify, and where there is no documentary evidence supporting the undertakings, the plaintiff will fail to discharge the onus of proof. Damages must not be too remote and there must be a discernible causal link between the defendant's conduct and the alleged losses. In the absence of documentary evidence, photographs, records, or witnesses to support claims of crop damage and quantum of loss, the plaintiff cannot succeed on quantum.

The court noted that the pleadings were "inelegantly drafted and containing evidence," indicating criticism of the manner in which the plaintiff's case was pleaded. The court observed that both parties agreed the alleged removal of electrical equipment constituted theft, yet no criminal proceedings resulted in conviction. The court also commented that it had no reason not to believe the testimony of Cathrine Kutsenza, the defendant's witness, who denied making any undertaking and confirmed she had no authority to make such undertakings. The court noted that no evidence was placed before it that whatever position was taken by Munodawafa and Chinembiri represented the official position of the defendant, and that the plaintiff confirmed the official position of the defendant was a denial of liability.

This case demonstrates the stringent evidentiary requirements for proving an aquilian action in Zimbabwe/South African law, particularly the importance of documentary evidence and calling material witnesses to substantiate claims. It reinforces that oral undertakings or promises, when disputed and unsupported by documentary evidence or witness testimony, will not be accepted by the courts. The case also illustrates the principle that the onus of proof rests on the plaintiff to prove all elements of the aquilian action, including both liability and quantum of damages. It serves as a cautionary tale about the consequences of failing to preserve evidence, call material witnesses, and maintain proper records when pursuing a claim for damages.