Elton Nyabusha v Zimbabwe Electricity Transmission and Distribution Company

The plaintiff was a resettled farmer on Subdivision 1 of Eastworlds in Mazoe District, offered land under the Government Resettlement Programme on 21 February 2002. He operated a 12 hectare lemon plantation under irrigation. A ZESA power line passed through the lemon plantation. On 25 September 2011, a fire broke out on the farm, destroying the lemon plantation. The plaintiff's caretaker testified that he heard sounds of snapping conductors from the power line and observed that the power cables had fallen on the ground and were bursting and twisting inside the plantation, igniting the mulching grass. The entire 12 hectare plantation and irrigation equipment were destroyed. About a month earlier, a tree had fallen onto the defendant's powerline, causing a conductor to break, which the defendant's technician repaired by joining the conductor. The plaintiff claimed damages of $238,253.00, alleging the defendant's negligence caused the fire.

• Whether the defendant committed a wrongful act that caused the plaintiff's loss
• Whether the defendant was negligent by act or omission in maintaining the power line
• Whether the method of repairing the conductor by joining it created a weak link that constituted negligence
• Whether the defendant owed a legal duty of care to prevent harm to the plaintiff's property
• Whether harm was reasonably foreseeable and whether a reasonable person would have taken action to prevent it
• The quantum of damages claimed by the plaintiff

The claim was dismissed in its entirety with no order as to costs.

In an Aquilian action for negligence, a plaintiff must prove: (1) a wrongful act by the defendant; (2) patrimonial loss; (3) causation; and (4) fault. Where negligence by omission is alleged, the plaintiff must prove that the defendant had a legal duty to take positive action to prevent foreseeable harm. The mere presence of utility infrastructure on property does not per se create liability for damage arising from equipment failure. A defendant will not be held liable for damage arising from unknown latent defects that are not discoverable through ordinary care, particularly where the repair method employed is an accepted standard practice in the industry. Expert evidence is required to establish that a technical repair method created a hazard or was negligent. The standard of care must not be pitched so high as to make the defendant the plaintiff's insurer or to create outcomes contrary to public interest.

The court observed that the general policy worldwide is that trees should not be allowed to grow under powerlines as this poses dangers when trees come into contact with fully charged powerlines, expressing some surprise that the plaintiff maintained a lemon plantation directly under electrical powerlines. However, the court did not base its decision on this observation as there was no evidence that tree contact caused the conductor to snap. The court noted that if the facts had shown tree contact caused the incident, it would not have hesitated to find the defendant negligent. The court also made policy observations about the importance of not creating a situation where utility companies would be discouraged from effecting necessary repairs, which would cause severe suffering to the public at large, emphasizing that courts should avoid 'overkill' in such matters.

This case is significant in Zimbabwean delictual law for establishing limits on liability for omissions and clarifying the standard of care required of utility companies maintaining infrastructure. It demonstrates that liability will not be imposed for latent defects unknown to the defendant and not discoverable through ordinary care, particularly where imposing such liability would have adverse public policy consequences. The judgment reinforces that courts will not make defendants insurers of plaintiffs' losses and that expert evidence is necessary to establish technical negligence in specialized fields. It also illustrates judicial discretion in declining to award costs where the circumstances warrant such an approach despite the claim's failure.