Square Deal (Private) Limited v Harare Municipality and Hellen Mitchel

The plaintiff operated a retail kiosk at Pomona Shopping Centre on property owned by Ithaca Properties (Pvt) Ltd pursuant to a lease agreement entered into in May 1995 with the second defendant's letting agent. In 2001-2003, disputes arose over rental increases and allegations of illegal occupation emerged. Between 2005-2007, the plaintiff was advised to regularize the structure and applied for approval of building plans, but these were never processed or approved by the Harare Municipality (first defendant). On 29 August 2010, employees of the first defendant demolished the kiosk allegedly in the presence or with the knowledge of the second defendant. The plaintiff initially claimed damages of US$281,500 from both defendants jointly and severally, alleging they wrongfully and intentionally destroyed the shop on false grounds that it was an illegal structure. The plaintiff subsequently withdrew its claim against the first defendant on 26 May 2011, leaving only the second defendant as respondent. The plaintiff claimed various heads of damage including replacement costs, loss of business, advertising costs, and goodwill.

• Whether the demolition of the kiosk was lawful
• Whether the second defendant connived with the first defendant to have the structure demolished
• What loss, if any, did the plaintiff suffer and what damages is the plaintiff entitled to claim
• Whether at the close of the plaintiff's case there was evidence upon which a reasonable person might find for the plaintiff (absolution from the instance test)
• Whether the plaintiff established the elements of delictual liability against the second defendant

The application for absolution from the instance was granted with costs in favor of the second defendant. The plaintiff's claim was dismissed at the close of its case without the defendant being required to lead evidence.

The binding legal principles established are: (1) A lawful action taken by administrative authorities pursuant to valid enforcement procedures cannot constitute wrongfulness for purposes of delictual liability, even if it causes patrimonial loss; (2) Where a plaintiff withdraws its claim against a defendant whose conduct is central to establishing the wrongfulness of the alleged delict, the court is precluded from making essential findings necessary to sustain the claim against remaining defendants; (3) Special damages must be proved by primary documentary evidence such as financial statements and ledger extracts, not merely by quotations, invoices, or schedules prepared by witnesses; (4) For absolution from the instance to be refused, there must be evidence upon which a reasonable person might find for the plaintiff on all essential elements of the cause of action.

The court made obiter observations that: (1) It was unwise for the plaintiff to withdraw its claim against the first defendant as this precluded the court from determining the lawfulness of the demolition; (2) The general attitude of judges should be to be very loath to decide questions of fact without having all evidence from both sides, and in cases of doubt, the safest course is to allow the case to proceed (citing Supreme Services Station v Fox & Goodridge); (3) Where a defence is something peculiarly within the knowledge of the defendant, justice demands they should be heard; (4) Even if connivance had been established, this would not have rendered the otherwise lawful demolition wrongful. The court also noted procedural irregularities in how the plaintiff attempted to prove loss of business by using 2011 figures to calculate 2010 losses without adequate explanation for price differences.

This case illustrates important principles regarding absolution from the instance in Zimbabwean civil procedure (which follows similar principles to South African law). It demonstrates the dangers of withdrawing claims against key defendants where their participation is necessary to establish the wrongfulness element of delictual liability. The judgment emphasizes that lawful administrative action (even if it causes loss) cannot ground delictual damages, and reinforces strict evidentiary requirements for proving special damages - quotations and invoices alone are insufficient; actual financial records and proof of loss must be produced. The case also illustrates that where planning approvals are never obtained or finalized, structures may be lawfully demolished by municipal authorities pursuant to enforcement orders.