Willem Wessels v Zecks Dube and Manica Zimbabwe (Pvt) Ltd

The plaintiff purchased a Toyota Emina Minibus 1997 model from the Trust Company of Japan for US$4,900, funded by his mother-in-law from New Zealand. In September 2006, the plaintiff's wife engaged the second defendant (Manica Zimbabwe), a customs clearing company, to facilitate clearance of the vehicle into Zimbabwe via Beitbridge border post. She dealt with Zecks Dube (the first defendant), a clerk employed by the second defendant, through email and telephone communications. The vehicle was shipped from Japan to Durban, South Africa, then transported to Beitbridge. On 18 October 2006, the plaintiff arrived at Beitbridge and met Zecks Dube at the second defendant's offices, paying him Z$1,701,000 in cash. The following day, the motor vehicle was extensively damaged while being driven by Miyen Zhou, an employee of the second defendant acting as a "border runner". Zhou died two days later. The plaintiff had no prior dealings with Zhou. The second defendant's Regional Manager, Emmanuel Muzondo, testified that Zecks Dube had flouted internal procedures but the plaintiff had dealt with him in good faith believing he was authorized to act on behalf of the second defendant.

• Whether the second defendant was vicariously liable for the actions of its employees (Zecks Dube and Miyen Zhou)
• Whether the plaintiff was entitled to specific performance requiring replacement of the motor vehicle
• Whether the alternative claim for damages based on delictual liability was competent
• The appropriate measure of damages in light of changed regulatory circumstances regarding import duties payable in foreign currency
• Whether damages should be awarded in foreign currency (US dollars) rather than local currency
• The applicable rate of interest where judgment is awarded in foreign currency

The court made alternative orders: (1) Main order: The defendants jointly and severally must deliver to the plaintiff in Zimbabwe, duly cleared by ZIMRA, a replacement Toyota Emina Minibus 1997 model, 2.4 petrol engine, 8 seater, four doors, with approximately 92,000 km mileage, in good working order. The Registrar of the High Court must approach the Zimbabwe Motor Trader Association to appoint a representative to ensure compliance, with costs borne by the defendants jointly and severally. This order must be effected within four months. (2) Alternative order: The first and second defendants must pay the plaintiff jointly and severally the sum of US$11,544 representing the total replacement value of the motor vehicle, with interest from date of judgment to date of payment at rates prevailing in the United States of America. (3) Costs of suit to be borne by the defendants jointly and severally, the one paying the other to be absolved.

An employer is vicariously liable for the actions of its employees performed within the course and scope of their employment, even where internal procedures are violated, if the employee acts within their apparent authority and the third party has no reason to doubt that authority. Where economic and regulatory circumstances have fundamentally changed between the time of the wrong and the judgment (such as requirements to pay duties in foreign currency), damages should be awarded in the currency necessary to effect replacement or restitution, rather than being artificially limited to the value at the time of the wrong. This ensures the compensatory purpose of damages is achieved. Where judgment is awarded in foreign currency, interest must be calculated at the rates prevailing in the country of that currency. Specific performance may be ordered even in cases requiring some degree of specification, where the court can appoint an independent party to oversee compliance and ensure the order's terms are properly fulfilled.

The court observed that it was unnecessary to determine the admissibility or weight of Exhibit 3 (the statement from Zecks Dube dated 17 November 2006) given the clear establishment of vicarious liability through other evidence. The court noted that the second defendant's counsel, Advocate Colegrave, made no substantive submissions on liability, which the court found "understandable and inevitable given the evidence led, more particularly that of the second defendant's own witness, Muzondo." The court commended Muzondo as "a fair, impartial and professional witness" who "gave his evidence in a straightforward manner" and "made important concessions under examination even where such were adverse to the case of the second defendant." The court also observed that the submission that Zhou was on "a frolic of his own" was not substantiated by the evidence.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It addresses the principles of vicarious liability where an employee acts beyond internal company procedures but within apparent authority from the perspective of a reasonable third party; (2) It demonstrates the court's willingness to grant specific performance in contract matters where the order can be made sufficiently certain through judicial oversight mechanisms; (3) Most importantly, it recognizes the need to award damages in foreign currency where changed economic and regulatory circumstances (particularly requirements to pay import duties in foreign currency) make it just and equitable to do so in order to properly compensate the plaintiff; (4) It establishes that where judgment is awarded in foreign currency, interest should be calculated at rates prevailing in the country of that currency rather than local rates; (5) The case illustrates the application of the principle that damages should place the plaintiff in the position they would have been in had the wrong not occurred, adapted to changing economic realities.