No S.C. 17\2002
Appeal No 327\2000
PADZINORIMA v CHARLES NZUMA
COURT OF ZIMBABWE
CJ, EBRAHIM JA & SANDURA JA
JANUARY 31 & APRIL 19, 2002
for the appellant
for the respondent
This is an appeal against a judgment of the High Court which
dismissed with costs the appellants action in which
thirteen head of cattle or their value of $65 000.00, and the sum of
background facts are as follows. At the relevant time the appellant
and the respondent were good friends and lived in Chivhu
The appellant was a transport operator and the respondent was a
1998 they concluded an agreement in terms of which the appellant was
allowed to keep his cattle on the respondents
farm free of charge.
The cattle were to be looked after by the appellants herdsman.
thereafter, the appellant took eighteen head of cattle to the
respondents farm and left them there under the care of
herdsman. The cattle were the Brahman type, and were a mixture of
steers and heifers.
according to the appellant, the respondent approached him with the
request that he be permitted to sell the appellants
later replace them with what he called Shona cattle, which were
supposed to be cheaper than the appellants cattle.
appellant had bought the cattle not for resale, but for some
traditional purposes concerning the appeasement of evil spirits
some time in the future, it did not matter whether the cattle later
returned to him were of the same breed as those he had handed
the respondent. Accordingly, he authorised the respondent to sell
his cattle and replace them later. However, this was
denied by the
to the appellant, the reason why the respondent made the request was
that the appellants cattle, being Brahman, fetched
at cattle sales than the respondents own cattle, which were the
addition, the appellant alleged that the respondent had, on two
occasions, borrowed sums totalling $5 000.00 which he had not
back. Again, this was denied by the respondent who said he never
borrowed any money from the appellant.
two of the appellants cattle died, and the appellant later
discovered that only three of his cattle remained on
farm. He took away one of these and at a later stage took the
remaining two to another farm.
when the appellant asked the respondent to replace the balance of his
cattle, i.e. 13 of them, believing that they had
been sold by the
respondent as previously agreed, the respondent refused to do so and
denied having sold the cattle. Instead, he
alleged that the
appellant had removed all his cattle from the farm. He also denied
having borrowed the sum of $5 000.00.
appellant, therefore, instituted a civil action in the High Court
claiming thirteen head of cattle or their value of $65 000.
the sum of $5 000.00.
learned judge who heard the matter was satisfied that the evidence
led at the trial established that the respondent had sold
thirteen head of cattle belonging to the appellant. However, as
the learned judge was of the view that the appellant had not
evidence as to the value of the cheaper Shona cattle which he was
prepared to accept in return for the original Brahman cattle,
dismissed the appellants claim with costs. However, in his
judgment, he overlooked the claim in respect of the sum of $5
and did not deal with it at all.
by the learned judges decision, the appellant appealed to this
the pre-trial conference, the parties agreed that the issues to be
determined at the trial were the following:
Whether or not Plaintiff repossessed his 13 head of cattle?
is the value of the said cattle?
the Defendant liable to pay $5 000.00 in respect of a loan advanced
to him by Plaintiff?
also agreed that the onus
in respect of the first issue was on the respondent, and that the
on the second and third issues rested on the appellant.
hearing the parties and their witnesses, the trial judge concluded,
correctly in my view, that the appellants thirteen
head of cattle
had been sold by the respondent, and that the respondent had lied
when he alleged that the cattle had been repossessed
with regard to the loan of $5 000.00 the learned judge made no
decision. Nevertheless, in his evidence the appellant
said that in
January 1999 the respondent, who had about two thousand chickens on
his farm, approached him and indicated that he wanted
to buy chicken
feed but was short of money. Accordingly, he asked for a loan of $5
000.00. As the relationship between the parties
was then very
friendly, the appellant first lent him $2 000.00 and about a week
later advanced the balance of $3 000.00.
it is true that in his evidence-in-chief the respondent denied having
borrowed the money, it is significant that the appellant
cross-examined on this issue.
the circumstances, bearing in mind the trial courts favourable
conclusion in respect of the appellants credibility on the
concerning the thirteen head of cattle, and the respondents
failure to cross-examine the appellant on the loan, I am satisfied
that on a balance of probability the appellant proved that he had
advanced the money to the respondent. The claim was a very small
one, and it is unlikely that the appellant made up such a story.
now come to the real issue in this appeal, which is whether the
learned judge was correct in concluding that the appellant had
led evidence on the value of the cheaper Shona cattle which he was
prepared to accept in return for the Brahman cattle.
seems to me that by concentrating on the alternative claim of $65
000.00 in respect of which he encountered some difficulty in
determining whether that sum represented the value of thirteen Shona
cattle, the learned judge overlooked the appellants main
fell into error. As stated earlier in this judgment, the appellant
claimed thirteen head of cattle or $65 000.00.
his evidence he made it clear that he was prepared to accept thirteen
Shona cattle or thirteen cattle of any breed. He stated
although he preferred receiving thirteen head of cattle, he was
prepared to accept the sum of $65 000.00 instead, although he
whether he could purchase thirteen head of cattle with that sum.
concluded that the respondent sold the appellants thirteen head of
cattle and had not replaced them, the learned judge
ordered the respondent to deliver to the appellant thirteen head of
cattle of any breed or their value.
my view, the fact that the learned judge found it difficult to assess
the appellants loss in money should not have been the
end of the
matter. He knew that the appellant had lost thirteen head of Shona
cattle, and should, therefore, have done his best
to estimate their
value on the basis of the evidence before him.
on a similar issue in Esso
Standard SA (Pty) Ltd v Katz
1981 (1) SA 964 (A) at 970D-G DIEMONT JA said:-
or not a plaintiff should be non-suited depends on whether he has
adduced all the evidence reasonably available to him at
the trial and
is a problem which has engaged the attention of the Courts from time
to time. Thus in Hersman
v Shapiro & Co
1926 TPD 367 at 379 STRATFORD J is reported as stating:
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if it is certain
damage has been suffered, the Court is bound to award damages. It
is not so bound in the case where evidence is
available to the
plaintiff which he has not produced; in those circumstances the
Court is justified in giving, and does give, absolution
instance. But where the best evidence available has been produced,
though it is not entirely of a conclusive character
and does not
permit of a mathematical calculation of the damages suffered, still,
if it is the best evidence available, the court
must use it and
arrive at a conclusion based upon it.
I am in
complete agreement with the comments made by the learned Judge of
Appeal. Accordingly I shall apply those principles in
the present issue. With those principles in mind, I now wish to
examine the evidence led by the appellant on the quantum
of his loss.
already stated, the parties agreed that the respondent could sell the
appellants cattle and replace them with Shona cattle.
respondent sold thirteen of the appellants cattle and did not
replace them with thirteen Shona cattle as agreed, the
loss in terms of the agreement was thirteen Shona cattle. That is
why the appellant claimed thirteen head of cattle
the appellant claimed the sum of $65 000.00, being the estimated
value of the thirteen Shona cattle. The question
is whether the
appellant led the best evidence available on the value of thirteen
his evidence the appellant stated that he bought the Brahman cattle
in 1998 at a price of $3 000 each, and that he considered
to have been a special one. He added that at the time of the trial
(i.e. October 2000) the prices of Brahman cattle
were in the region
of $6 000 to $7 000 each because they had escalated since 1998. In
the circumstances, he estimated the price
of Shona cattle to be $5
000 each, as the assumption was that Shona cattle were cheaper than
is significant that the appellants evidence on the prices of
cattle, whether Brahman or Shona, was not challenged by the
in cross-examination. His evidence on the purchase price
of the Brahman cattle bought by him in 1998 and his assertion that he
bought them at a special price were not challenged under
cross-examination. The same applies to the estimated price of the
cattle. It was not challenged.
being the case, the respondent must have accepted the prices as
reasonable. He and the appellant had attended the local cattle
sales on a number of occasions and must have been familiar with the
prices of cattle, both Brahman and Shona, as the appellant asserted.
the circumstances, I am satisfied that the appellant led the best
evidence available on the prices of Shona cattle. That evidence
not challenged in cross-examination, nor was it challenged by the
respondent when he gave his evidence.
follows that the learned judge should have given judgment in favour
of the appellant.
circumstances, the appeal is allowed with costs. The order of the
is set aside and the following is substituted:
defendant shall deliver to the plaintiff thirteen head of cattle of
any breed, failing which he shall pay to the plaintiff
the sum of $65
000.00 together with interest at the prescribed rate from the date of
service of the summons to the date of payment
defendant shall pay to the plaintiff the sum of $5 000.00, together
with interest at the prescribed rate from the date of service
summons to the date of payment in full.
costs of suit shall be borne by the defendant.
CHIDYAUSIKU CJ: I agree
JA: I agree
respondent's legal practitioners