The applicant was employed by the first respondent as a cook in 2011. He joined the second respondent's funeral cash plan policy (number 5014061) with a maximum cover of USD$5,000.00, listing his wife as immediate family and his mother and mother-in-law (at USD$2,000.00 each) as extended family. Monthly premiums of USD$30.80 were deducted from his salary by the first respondent for transmission to the second respondent. The first respondent stopped forwarding premiums without informing the applicant. The applicant was dismissed from employment in February 2012. On 1 March 2012, the second respondent suspended the policy due to arrears of USD$61.60 (representing two months' premiums). On 19 March 2012, the applicant's wife Teckla Munemo passed away. The second respondent declined to pay any claim due to the policy suspension. The applicant sought compensation of USD$5,000.00 from the first respondent for failing to remit premiums, arguing he would have been entitled to this amount had the first respondent fulfilled its obligation.
The point in limine was upheld and the application was dismissed with costs against the applicant.
A claim for damages arising from alleged breach of contract, where damages are not preset and agreed between parties, should not be brought by application procedure. Assessment of damages for breach of contract involves investigation by the court into the plaintiff's financial position on account of the breach and the position the plaintiff would have been in had there been proper performance of the contract, which requires oral evidence. Where there are genuine (not illusory) disputes of fact in motion proceedings that cannot be resolved by taking a robust and common sense approach without risk of injustice, the matter must be referred to trial for oral evidence. An applicant in motion proceedings bears a heavy onus to prove both entitlement to and quantum of damages, particularly where the respondent raises bona fide factual disputes rather than bare denials.
The court observed that the first respondent, despite raising the successful procedural objection, had made admissions of material facts that may have been detrimental to its substantive defence (such as admitting it failed to remit premiums to the second respondent). This suggests that had the matter proceeded to trial on proper procedure, the first respondent might have faced liability, though the extent of that liability would still need to be properly proved. The court also noted the absence of proof of service on the second respondent and the inability to determine whether the second respondent was in default, highlighting the importance of proper procedural compliance in bringing all necessary parties before the court.
This case illustrates important principles of civil procedure in Zimbabwe regarding the appropriate use of application (motion) proceedings versus action proceedings. It reinforces that claims for unliquidated damages, particularly those arising from breach of contract, generally require oral evidence and cannot be determined on affidavit alone. The case demonstrates the court's approach to determining whether disputes of fact are genuine or illusory, and emphasizes that applicants bear a heavy onus when seeking relief in motion proceedings where bona fide factual disputes exist. It also touches on principles of mitigation of damages in contract law, requiring plaintiffs to take reasonable steps to reduce their loss. The judgment provides guidance on when courts should refer matters to trial rather than resolve them on a robust common sense approach.