Tafanana Mukarakate and Others v Tonderayi Kufakunesu

Sometime around 3-8 October 2019, the appellants' cattle strayed into the respondent's wheat, maize and cabbage fields and grazed down the crops, causing damage. The respondent had previously approached the headman about starting a wheat project, and a meeting was called where all community members, including the appellants, were warned to keep guard of their beasts and prevent them from straying. Despite this warning, the appellants left their cattle unattended and they strayed into the respondent's fields, destroying the crops. The respondent identified the cattle belonging to each of the four appellants by their color, horns and type. The respondent's field was secured with a 4-string fence which the cattle destroyed. The respondent claimed damages of RTGS $243,005.00. The Magistrates Court granted judgment in favor of the respondent as claimed, and the appellants appealed to the High Court.

• Whether the appellants' beasts collectively damaged the respondent's winter crops
• Whether the respondent's fields were properly secured and protected
• Whether cattle owners are strictly liable under actio de pastu when their animals stray and damage another's crops
• Whether the area being a commercial farming area affected liability
• Whether the quantum of damages was reasonably quantified and justifiable

The appeal was dismissed. The appellants were ordered to pay the respondent's costs on the ordinary scale.

The binding legal principle established is that under actio de pastu, the owner or controller of domestic animals is strictly liable for damage caused when their animals stray into another person's property and damage crops or pastures, regardless of whether the damage occurred during a winter period when animals might customarily free-range. This strict liability applies where owners have been specifically warned to control their animals and have failed to do so. The liability extends not only to grazing damage but also to harm caused by trampling on standing crops, plants or shrubs. The owner cannot escape liability by arguing that fields should have been better fenced when they have been warned to control their animals.

The court noted, though not essential to its decision, that the appellants' counsel conceded during submissions that some of the appellants' cattle may have damaged the crops (save for the 3rd appellant whom counsel claimed did not own cattle), and that some cattle were removed from the respondent's field upon arrival of police and an AREX Officer. The court also referenced Professor G. Feltoe's treatise "A Guide to the Zimbabwean Law of Delict" (June 2017) in support of the general principles of actio de pastu, though this was merely explanatory of established law rather than creating new principles.

This case reinforces the application of the strict liability principle under actio de pastu in Zimbabwean law, confirming that owners or controllers of domestic animals are liable for damage caused when their animals stray onto another's property and damage crops or pastures. The case demonstrates that this liability applies regardless of whether it is winter or a period when cattle might traditionally free-range, particularly where specific warnings have been given to livestock owners to control their animals. It also confirms that the defense of inadequate fencing is not available where the owner has been warned to control their animals and has failed to do so.