Tobacco Processors (Private) Limited v BAK Storage (Private) Limited and Securitas (Private) Limited

The 1st defendant (BAK Storage) leased its premises to the plaintiff (Tobacco Processors) in June 2009 for warehousing, storage and handling of tobacco bales. The 2nd defendant (Securitas) contracted to provide security services for the premises and contents. Following the loss of 1446 bales of tobacco valued at US$438,355, the plaintiff sued both defendants. The claim was grounded in contract or, alternatively, in negligence. The 1st defendant's standard conditions of storage contained exclusion clauses limiting liability to gross negligence or wilful default only, and excluding liability for theft or vandalism. The 1st defendant excepted to the plaintiff's claim on grounds that: (1) regarding the contractual claim, neither gross negligence nor wilful default was pleaded, and liability for theft was excluded; and (2) the delictual claim was incompetent as it was for pure economic loss arising from negligent breach of contract.

• Whether contractual exclusion clauses can exempt a party from liability for theft, wilful misconduct or dishonest activity
• Whether the plaintiff's declaration implicitly alleged gross negligence or wilful default sufficient to overcome the contractual exemption clauses
• Whether a claim in delict is competent where the negligence alleged arises from breach of contractual obligations resulting in pure economic loss
• Whether there can be a concurrence of actions in both contract and delict arising from the same set of facts
• Whether leave to amend pleadings should be granted in exception proceedings where no cause of action is disclosed

The exception was dismissed with costs in the cause.

The binding legal principles established are: (1) A party cannot contractually exclude liability for loss or damage to another's property caused by his own dolus or that of his employees, as such exclusion would be contra bonos mores; (2) Contractual exemption clauses purporting to exclude liability for theft or dishonest conduct are unenforceable; (3) The law recognizes a concurrence of actions where the same set of facts gives rise to claims in both contract and delict, provided the delictual claim founds an independent cause of action separate from the contractual obligations; (4) A claim in delict is not competent where the negligence alleged consists solely of breach of contractual terms resulting in pure economic loss; however, where the negligence goes beyond mere malperformance of contractual obligations and constitutes an independent wrong (such as participation in or abetting theft), a delictual claim may be maintained; (5) Allegations that necessarily imply gross negligence or wilful default are sufficient to overcome contractual exemption clauses that limit liability to such conduct.

The court made non-binding observations regarding the procedure for exceptions and amendments to pleadings. Patel J noted the tension between Boyd v Minister of Justice Legal and Parliamentary Affairs 1990 (2) ZLR 364 (H), which held that amendments should not be allowed in exception proceedings as this defeats their purpose, and the more flexible approach in Levenstein v Levenstein 1955 (3) SA 615 (SR) and Adler v Elliot 1988 (2) ZLR 283 (S). While acknowledging that amendments should not be granted willy-nilly, the judge expressed the view that the authorities should not be construed to exclude the possibility of amendment even where no cause of action is disclosed, and that each case should be considered on its peculiar facts and the conduct of the parties. The court also observed that the exception raised points of appreciable procedural importance, justifying the decision to make costs in the cause rather than ordering them against the excipient immediately.

This case is significant in Zimbabwean law for: (1) reaffirming that contractual exclusion clauses cannot exempt parties from liability for their own dolus, wilful misconduct or dishonest conduct as this is contra bonos mores; (2) clarifying the relationship between contractual and delictual remedies in Zimbabwean law, particularly regarding the concurrence of actions; (3) establishing that where negligence alleged goes beyond mere malperformance of contractual obligations and founds an independent cause of action (such as theft), a delictual claim may lie alongside a contractual claim; and (4) providing guidance on the appropriate approach to amendments in exception proceedings. The judgment demonstrates the court's application of South African authorities while maintaining independence in their application to Zimbabwean circumstances.