On 11 August 2011, the plaintiff approached the defendant to organize cattle sales in Beitbridge District. They agreed that plaintiff would transfer money for cattle purchases into defendant's bank account, and defendant would withdraw it for use at sale points, with unutilized funds to be transferred back. This was for security reasons to avoid plaintiff's buyers handling cash. On 22 August 2011, plaintiff transferred US$300,000 to defendant's account. Defendant withdrew the money in batches under armed police escort. Of this amount, US$62,714.20 was used (including levies and bank charges), and US$50,000 remained unwithdrawn in the account, leaving US$187,286 in defendant's hands after cattle purchases concluded on 27 August 2011. On 29 August 2011, defendant's treasurer advised plaintiff that there had been a burglary at their offices on the night of 28 August 2011 and plaintiff's money was stolen. The money had been kept in a Chubb safe in a strong room in a locked building with a security guard. The burglars tied up the guard, drilled a hole in the strong room wall, and cut open the safe.
The plaintiff's claim was dismissed with costs.
Where a robbery (vis major/force majeure) occurs despite reasonable security measures being in place, a defendant in custody of money cannot be held liable either on grounds of negligence or on the basis that risk in money passes with delivery. It is inconsistent and bad law to accept the occurrence of vis major and then proceed to hold a defendant delictually liable on the premise of risk or negligence. The loss should lie where it falls in such circumstances.
The court observed that even in cases where strict liability attaches to a public carrier, the carrier would not be liable if it established vis major. The court noted that it would be a misnomer and impermissible for a plaintiff to alter its case by introducing the issue of risk in closing arguments when negligence was pleaded and risk was never pleaded, as this would take the defendant by surprise and embarrass it. The court also observed that risk is not purely a question of law that need not be pleaded, contrary to plaintiff's argument.
This Zimbabwean High Court case establishes important principles regarding liability for loss of money in custody, particularly the application of vis major as a defense. It clarifies that where a robbery (as a form of vis major) is established, a defendant cannot be held liable on grounds of negligence or strict liability based on risk passing with delivery. The case also addresses pleading requirements and the impermissibility of introducing new legal grounds (such as risk) in closing arguments when not pleaded in the initial case. While this is a Zimbabwean case, it may have persuasive value in South African courts given the shared legal heritage and similar principles of delictual liability and contract law in both jurisdictions.