Lewenod Enterprises Private Limited v Freight Africa Logistics

The parties entered into a Load Confirmation and Rate Agreement on 28 November 2011 whereby the defendant agreed to transport goods for the plaintiff and bear risk for loss or damage. The contract required changes to be in writing and prohibited subcontracting without express written consent. A thirty-tonne truck was loaded with soya beans (instead of seed maize) on behalf of the plaintiff. The truck went missing and the defendant's representative assisted in searching for it. The plaintiff claimed that thirty tonnes of soya beans valued at USD 48,000 were lost while in the defendant's custody. The defendant denied entering into any agreement for transportation of soya beans, admitted an agreement for seed maize existed, and claimed the agreement was mutually terminated. The defendant suggested it had referred the plaintiff to another transporter when it was unable to load the goods.

• Whether the agreement between the parties was mutually terminated
• Whether the truck that loaded soya beans was subcontracted by the defendant with the plaintiff's express consent
• What goods were loaded and in what quantity - soya beans or maize seed, and the tonnage
• Whether the defendant's assistance in searching for the missing truck constituted acceptance of liability
• Whether the plaintiff proved its case on a balance of probabilities

The plaintiff's claim was dismissed with costs.

In civil proceedings, the plaintiff must prove its case on a balance of probabilities, meaning the evidence must show it is more probable than not that the plaintiff's version is correct. Where the probabilities are evenly balanced, the plaintiff has not discharged the burden of proof and the claim must fail. The preponderance of probabilities requires an evaluation and assessment of the likelihood of the plaintiff's version being correct as opposed to the defendant's, based on the pleadings, documentary evidence, witness testimony, and the law. Assistance by a defendant in investigating a loss does not, without more, constitute acceptance of liability. A party seeking to hold another liable under a contract must prove that the contract was operative and that the defendant acted in breach of it.

The court observed that the standard of proof in civil cases is proof on a balance of probabilities, which carries a reasonable degree of probability but not as high as required in criminal cases. The reason for the different onus between civil and criminal cases is that in civil cases the dispute is between individuals who are equally interested parties, and the primary concern is to do justice to each party by balancing their competing claims, whereas in criminal matters the trial is an attack by the State on an individual's integrity and the main concern is justice to the accused. The court commented that there are no exceptions to the rule that all issues in a civil action are decided on a preponderance of probabilities, even when allegations of criminal or immoral conduct are to be proved. The court suggested that the plaintiff appeared to be a victim of fraud by persons referred to it by the defendant's representatives, but that this alone could not ground liability without proper evidence establishing the defendant's legal responsibility for those third parties' actions.

This case illustrates the strict application of the balance of probabilities standard in civil proceedings in Zimbabwean law. It demonstrates that even where parties have entered into a written contract with clear terms requiring written variations and prohibiting unauthorized subcontracting, a plaintiff must adduce sufficient evidence to prove breach and liability. The case emphasizes that where probabilities are evenly balanced, the plaintiff fails to discharge the onus of proof. It also highlights the importance of documentary evidence, particularly in commercial transport disputes, and shows that a defendant's assistance in investigating a loss does not automatically constitute admission of liability. The judgment serves as a reminder to commercial parties to maintain proper documentation and adhere to contractual requirements for written variations.