Edmore Masendeke v Kukura Kurerwa Bus Services (Private) Limited

On 20 October 2013, the plaintiff, a person with a physical disability who cannot walk without assistance, boarded the defendant's bus in Kwekwe intending to travel to Harare. As he boarded, the bus conductor addressed his sister in a sarcastic and rude tone, asking whether she had given the plaintiff his bus fare and whether he was traveling alone, without asking any other passengers similar questions. The conductor did not offer the plaintiff a seat or assist him, despite there being no designated area for disabled persons on the bus. The plaintiff found a seat himself and requested the conductor's name and contact details to report the discriminatory treatment, which were withheld. The plaintiff then refused to pay the bus fare unless the conductor apologized. When the bus arrived in Kadoma, the conductor, with the assistance of two other men, forcibly ejected the plaintiff from the bus and dumped him on the ground on his back, leaving him stranded despite his inability to walk without assistance. The plaintiff claimed USD$100,000 in damages for violation of his freedom from discrimination, injuria, and assault based on the Disabled Persons Act and constitutional provisions.

• Whether the plaintiff adduced sufficient evidence at the close of his case to withstand an application for absolution from the instance
• Whether the plaintiff established a prima facie case of discrimination on the basis of disability under the Disabled Persons Act [Chapter 17:01]
• Whether the plaintiff's refusal to pay the bus fare constituted a repudiation of the contract of carriage that absolved the defendant of liability
• Whether the plaintiff could rely on section 54 of the Constitution (right to non-discrimination) as a basis for the cause of action when not expressly pleaded
• Whether the defendant owed a duty of care to the plaintiff after he allegedly repudiated the contract by refusing to pay

The application for absolution from the instance was dismissed. Costs were ordered to remain in the cause (meaning they would be determined at the final disposal of the matter).

A plaintiff can rely on constitutional provisions as the basis for a cause of action even when not expressly pleaded, where the statutory cause of action (in this case, the Disabled Persons Act) was itself enacted to give effect to constitutional rights (section 54 - right to non-discrimination). The Constitution is the foundational source of rights and a court of competent constitutional jurisdiction has the power to address constitutional questions arising at any stage of proceedings. Evidence of discriminatory treatment of a disabled person includes subjecting them to conditions, restrictions, or assumptions not applied to other persons, such as assuming they cannot speak for themselves, questioning their ability to pay, or failing to provide reasonable assistance. For purposes of absolution from the instance, a court must assess whether there is evidence upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiff - the test is whether the plaintiff's version is possible, not whether it should ultimately succeed.

The court observed that the defendant should have taken the plaintiff to a police station rather than taking the law into its own hands by forcibly ejecting him from the bus. The court noted that failing to pay a bus fare is an offence under section 43 of the Motor Transportation Act [Chapter 13:15], and that a person should not be allowed to benefit from their own wrongful act. The court also commented that section 176 of the Constitution provides the High Court with inherent power to protect and regulate its own process and to develop common law or customary law, taking into account the interests of justice and constitutional provisions. The court expressed the view that it would be a tautology to say the Constitution cannot be relied upon to found a cause of action when it is the source that gave birth to the enabling legislation (describing it as "the mother that gave birth to the child known as the Disabled Person's Act").

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It affirms that disabled persons have constitutional protection against discrimination under section 54 of the Constitution, and that this protection can be invoked even when pleadings are based on enabling legislation (the Disabled Persons Act); (2) It recognizes that the Constitution is the foundational source of rights and can be relied upon to support causes of action based on legislation enacted to give effect to constitutional rights; (3) It provides guidance on what constitutes unfair discrimination against disabled persons in the context of public transportation services; (4) It demonstrates the court's willingness to apply constitutional provisions flexibly to protect fundamental rights, even when not expressly pleaded, where the underlying statutory claim is based on constitutional protections; (5) It illustrates the tension between contractual obligations (payment of bus fare) and constitutional rights (non-discrimination), and how courts should balance these considerations in assessing liability.