Deliwe Chinyemba v Christina Majawala

The plaintiff issued summons on 29 September 2005 seeking various damages from the defendant. The plaintiff's amended declaration abandoned a defamation suit and continued with claims for contumelia and other damages. The plaintiff alleged that she was unlawfully evicted from premises at 1252 St Marys' Township, Chitungwiza by the defendant and the defendant's employees. The plaintiff claimed she was assaulted during the eviction and that her property was damaged during the mayhem. The defendant took occupation of some rooms at the said premises. The plaintiff claimed to have sought refuge at a police station on the date of the defendant's occupation.

• Whether the plaintiff proved on a balance of probabilities that she was unlawfully evicted by the defendant
• Whether the plaintiff proved she was assaulted by the defendant and/or the defendant's employees
• Whether the plaintiff proved damages to her property
• What standard of proof is required for claims for damages in delictual actions

The plaintiff's claim was dismissed with costs.

Claims for damages in delictual actions must be supported by tangible evidence and proved on a balance of probabilities. Damages cannot be awarded based on speculation, conjecture, or unsubstantiated averments in pleadings alone. Where a plaintiff's own testimony and that of supporting witnesses contradict the pleadings and are internally inconsistent on material facts, the claim must fail. The plaintiff bears the burden of proving each element of the claim, and failure to adduce evidence in support of any material averment is fatal to the claim.

The court observed that this was a case where costs on a higher scale would have been awarded without hesitation had the defendant requested such an order. The court remarked that it remained mysterious why the case was allowed to proceed beyond the closure of the plaintiff's case. The court expressed the view that the plaintiff appeared to have taken advantage of her professional placement to abuse the court process, and that such conduct must be discouraged and condemned in the strongest possible terms. The court also noted that the plaintiff likely had ulterior motives in bringing the action.

This case serves as an important reminder in Zimbabwean jurisprudence regarding the evidentiary standards required for damages claims in delictual actions. It demonstrates the court's willingness to dismiss claims that are not properly substantiated with tangible evidence and to condemn abuse of court process through frivolous and vexatious litigation. The judgment reinforces that damages cannot be awarded based on mere pleadings without proper proof, and that courts will scrutinize claims where witness testimony contradicts the pleadings or where witnesses contradict each other on material facts.