Ritenote Printers (Pvt) Ltd and John Kanokanga v A. Adam & Company (Pvt) Ltd

The first plaintiff (Ritenote Printers) was a printing and photocopying business operating from two premises leased from the defendant. In November 2010, the defendant evicted the first plaintiff from premises at 147 Mbuya Nehanda Road and Winston House, 109 Leopold Takawira Street. The eviction was based on orders from the Magistrates Court and High Court arising from rental arrears claims. The first plaintiff had noted an appeal and applied for stay of execution, which was dismissed. The defendant proceeded with eviction without obtaining an order for execution pending appeal. The Supreme Court subsequently found the eviction unlawful in case SC 15/11 on 31 May 2011 and ordered restoration. The first plaintiff was restored to Winston House after 8 months but not to the Mbuya Nehanda premises, which the defendant had demolished. The second plaintiff (John Kanokanga), director of the first plaintiff, claimed he suffered chronic depression as a result of the eviction. The parties had a 20-year cordial business relationship. There was an agreement for the first plaintiff to vacate Mbuya Nehanda premises by September 2009 for renovations, which the first plaintiff did not honour, insisting on alternative premises.

• Whether the plaintiffs' summons and declaration disclosed a cause of action at law
• Whether the defendant acted negligently, unlawfully and wrongfully in evicting the first plaintiff
• Whether all four elements of the Aquilian action were established: wrongfulness, patrimonial loss, fault, and causation
• Whether the element of fault (intention or negligence) was specifically pleaded and proved
• Whether damages were recoverable for the unlawful eviction
• Whether the second plaintiff's chronic depression was causally linked to the eviction

The plaintiffs' claim was dismissed with costs.

In an Aquilian action for damages arising from unlawful conduct, wrongfulness and fault are separate and distinct requirements that must both be specifically pleaded and proved. Wrongfulness alone, even if established by a prior court finding that conduct was unlawful, is insufficient to establish delictual liability. Fault requires proof of either intention or negligence demonstrating blameworthy conduct. Where a defendant acts on the basis of court orders and legal advice, the absence of evidence showing deliberate infliction of harm or conduct that a reasonable person would not have undertaken in similar circumstances means the fault element cannot be established. A plaintiff bears the onus of proving all four elements of the Aquilian action (wrongfulness, patrimonial loss, fault, and causation) on a balance of probabilities, and failure to discharge this burden in respect of any element results in dismissal of the claim.

The court observed that part of the difficulty with the plaintiffs' claim was the failure to separate and recognize the differences between the Aquilian action (providing remedy for wrongs of substance/patrimonial loss) and the actio injuriarum (providing remedy for wrongs to personality/sentimental loss). The court noted that the first plaintiff's remedies properly lay in the Aquilian action and the second plaintiff's in the actio injuriarum, but neither the summons nor declaration properly pleaded these as separate causes of action. The court commented on the second plaintiff's emotional state and lack of credibility on certain issues, suggesting his histrionic behavior stemmed from a layman's lack of knowledge of legal concepts. The court expressed doubt about finding a causal connection between the eviction and the second plaintiff's chronic depression, noting it would have benefitted from evidence about other potential triggers in his personal life.

This case clarifies the distinction between wrongfulness and fault in Zimbabwean delictual law, following South African jurisprudence. It establishes that unlawful conduct alone is insufficient to establish delictual liability; fault (intention or negligence) must be specifically pleaded and proved as a separate element. The case demonstrates that reliance on court orders and legal advice, even if subsequently found to be based on a misapprehension of law, may negate fault where there is no evidence of deliberate wrongdoing or unreasonable conduct. It reinforces that in Aquilian actions, all four elements (wrongfulness, patrimonial loss, fault, and causation) must be established on a balance of probabilities, and failure to plead and prove any element is fatal to the claim.