Mkandla Tours and Transport v Uniquip (Pvt) Ltd and Another

On 13 July 2010, at the intersection of 3rd Avenue and Herbert Chitepo Street in Bulawayo, a haulage truck belonging to the 1st defendant (Uniquip (Pvt) Ltd) and driven by the 2nd defendant (Tawanda Puche) collided with the plaintiff's vehicle. The plaintiff claimed the accident occurred due to the negligence of the 2nd defendant, who allegedly ignored a Give Way sign and rammed into the plaintiff's vehicle from the right side. The plaintiff alleged that his vehicle was damaged beyond repair and claimed damages totaling ZAR587,500.00 for the vehicle damage and loss of income. The 1st defendant denied liability, claiming the 2nd defendant was on a frolic of his own at the time of the accident. The 2nd defendant admitted he was the 1st defendant's employee and was driving the employer's vehicle, but denied he was acting within the course of his employment at the time of the accident. There was also uncertainty about the correct identity of the plaintiff, as documents showed the vehicle was registered in the name of Teddy Mkandla.

• Whether the plaintiff adequately proved his claim for damages in accordance with the Rules of Court
• Whether viva voce evidence from the plaintiff was necessary to prove damages
• Whether expert witnesses alone could establish the value of damages without direct evidence from the plaintiff
• Whether the plaintiff properly identified himself as the owner of the damaged vehicle
• Whether the defendants were vicariously liable for the actions of the 2nd defendant

The plaintiff's case was dismissed with costs.

A plaintiff claiming damages must prove those damages through his own viva voce evidence in open court. Expert witnesses cannot substitute for the plaintiff's direct evidence regarding the value of the property damaged and the quantum of loss suffered. Order 46, Rule 408 of the High Court Rules requires that witnesses be examined viva voce and in open court unless there is written agreement between parties or a court order for alternative arrangements. A party cannot simply file documents and leave it to the court to determine his claim - what is stated in the summons must be substantiated in open court by viva voce evidence. Failure to lead essential evidence to prove the claim will result in dismissal of the action.

The court observed that there was uncertainty about the correct identity of the plaintiff, as documents showed the vehicle was registered in the name of Teddy Mkandla rather than "Mkandla Tours and Transport." The court noted that the plaintiff's presence would have been necessary to clarify this issue. The court also remarked that the defendants could have sought absolution from the instance after the plaintiff closed his case, but instead chose to lead their evidence to bring the matter to finality. The court implied that even if the defendants had not led evidence, the plaintiff's case would still have failed due to lack of proof.

This case is significant in Zimbabwean civil procedure for reinforcing the fundamental principle that a plaintiff must personally give viva voce evidence to prove damages claimed, particularly regarding the value and quantum of loss. It emphasizes that expert witnesses alone cannot substitute for the plaintiff's own evidence about the value of property and losses suffered. The case also underscores the strict application of the High Court Rules requiring oral testimony in open court unless otherwise agreed or ordered, and demonstrates that failure to comply with these procedural requirements will result in dismissal of the claim regardless of the apparent merits. It serves as an important reminder to legal practitioners about the necessity of calling the plaintiff as a witness in damages claims.