Wynina (Pvt) Ltd v MBCA Bank Limited

The appellant, a tobacco growing company, participated in the Reserve Bank of Zimbabwe's (RBZ) retention scheme during the 2007/2008 season whereby tobacco growers received a portion of sales proceeds in foreign currency. In September 2008, the appellant submitted an application through the respondent bank to participate in the 2008/2009 scheme and deposited Z$250,000 in local currency on 9 October 2008. In April 2009, the RBZ published a list of beneficiaries under the scheme in the Herald newspaper, but the appellant's name was not included. Upon inquiry, the respondent initially claimed no application was received, then later found it but stated the appellant's account had been overdrawn during the relevant period and the application could not be forwarded to the RBZ. The deadline had passed and attempts to have the RBZ accept the late application failed. The appellant sued for damages of US$61,944.81 representing the foreign currency it would have received had the application been properly submitted. The High Court dismissed the claim, finding it premature as the RBZ had not yet paid other growers with properly submitted claims and a class action was pending.

• Whether the appellant's claim for damages for breach of contract was premature
• Whether the quantum of the claim could be decided without joining the RBZ as a party
• Whether a contractual claim for damages arose from the loss of an expectation to receive payment from the RBZ
• Whether damages could be assessed where the plaintiff lost the chance to participate in a scheme but could not prove with certainty what would have been received
• When prescription begins to run on a claim for breach of contract
• Whether nominal or substantial damages should be awarded for loss of a chance

The appeal was allowed with costs. The order of the High Court was set aside and substituted with judgment for the appellant in the sum of USD 15,486.20 together with interest at the prescribed rate from the date of judgment. The respondent was ordered to pay costs of suit.

When a breach of contract deprives a party of the chance to participate in a beneficial scheme, damages become due immediately upon the breach occurring, not when the anticipated benefit would have materialized. A plaintiff claiming damages for loss of a chance need not prove on a balance of probabilities that the anticipated benefit would have been received; it is sufficient to prove that a real or substantial chance (as opposed to a speculative one) was lost due to the defendant's breach. Where a plaintiff has suffered loss but exact quantification is impossible, the court is obliged to assess damages by making a value judgment based on the best available evidence, even if this involves estimation or an informed guess. The court may discount the claimed amount to reflect relevant contingencies, including the fact that intermediate steps were not completed and the apparent financial difficulties of the party who would have provided the benefit. Prescription begins to run from the date of breach, not from when a third party eventually honors or fails to honor its own obligations.

The court provided an extensive review of South African and English authorities on the awarding of nominal damages, noting inconsistencies in approach. The court discussed the distinction between: (1) cases where no damages are proved and purely nominal damages (like 10 cents) might be awarded only to establish a right; (2) cases where some loss is proved but cannot be quantified exactly, where a modest sum may be awarded; and (3) cases where loss of a chance is established, requiring substantial assessment. The court observed that the allocation and expenditure of public funds stands on a different footing from other expenditures and is subject to parliamentary approval and executive control in the best interests of the community. The court noted the difficulty created by the pending class action against the RBZ and the uncertainty about whether the RBZ would ultimately pay the growers, but held these factors should be accounted for through discounting rather than by denying the claim entirely. The court emphasized that placing the appellant in the same position as growers with properly submitted claims would prejudice the appellant, as those growers at least have a potential claim against the RBZ while the appellant has none.

This case is significant in Zimbabwean jurisprudence as it establishes important principles regarding the assessment of damages for loss of a chance. It affirms that: (1) where a party is deprived of an opportunity to participate in a beneficial scheme due to breach of contract, damages arise immediately upon breach, not when the benefit would have been received; (2) courts must assess damages for loss of a chance even where exact quantification is impossible, using the best available evidence and making informed estimates; (3) a plaintiff need not prove on a balance of probabilities that they would have succeeded, only that they lost a real chance of value; (4) the party responsible for the breach (the RBZ) need not be joined where the claim is against the agent who failed to perform its contractual obligations. The case provides guidance on how courts should approach complex damages assessments involving future contingencies and third-party actions, particularly in the context of government schemes and banking relationships.