Judgment No. HB 71/13
Case No. HC 1452/07 ‘B’
ROBSON NDIWENI PLAINTIFF
PETER JOHANNES CLOETE DEFENDANT
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 31 OCTOBER 2012 AND 28 MARCH 2013
N.T. Mashayamombe for plaintiff
K. Phulu for the defendant
CHEDA AJ: This matter was heard on the 31st of October 2012. At the end of the trial the parties requested that they file written submissions. I advised that I preferred to hear their oral submissions in court. The matter was then stood down so that they could advise a date of hearing for their submissions when they are ready. The parties did not come back.
On 13th of February I advised, through the Registrar, that the parties appear to make their submission on the 20th February 2013. By letter dated the 20th February the plaintiff’s legal practitioners wrote to the Registrar suggesting that the matter be heard on 22 February 2013 as the practitioner handling the matter was out of town. Once more the parties did not come on 22 February.
In view of my eminent departure from the service I now find it necessary to write this judgment without their closing submissions.
The plaintiff issued summons in July 2007 against the defendant claiming for:
(a) Permanent injury and disfigurement - $500 million
(b) Pain and suffering - $250 million
(c) Loss of amenities in life - $150 million
(d) Medication and medical bills - $11 million
(e) Transport - $15 million
(f) Loss of production at farm - $27 million
Total = $953 million
The plaintiff also claimed interest at the prescribed rate from the date of the summons and costs of suit at an attorney and client scale.
In his declaration the plaintiff said he is a resettled farmer, and the defendant is a farmer who carried on farming activities adjacent to the plaintiff’s plot. He said on the 1st of June 2005, at Vergnoug Farm, Kezi, the plaintiff and the defendant engaged in a dispute over cattle grazing rights as the two share a common boundary. During the dispute and without any provocation the defendant wrongfully and unlawfully assaulted plaintiff with a pick handle, physically assaulted him all over the body with fists and booted feet. He said as a result of the assault he suffered the following injuries.
(i) Cuts and bruises all over the body
(ii) Compound fracture on the right tibia
(iii) 8mm wound on the left leg as will morefully appear from the medical report annexed.
He said this was as a result of an unprovoked attack on him by the defendant. The defendant has since been charged and convicted on a competent verdict of assault with intent to cause grievous bodily harm on the 19th of June 2007 at the Gwanda Magistrates’ Court.
He referred to a copy of the indictment as an annexure on the papers, but there was none.
The respondent entered appearance to defend. His plea was that the plaintiff was stealing defendant’s cattle, and it is plaintiff who attacked defendant and those in his company.
In his evidence the plaintiff said he has been settled on sub-division 1 of Buluma Farm for 9 years. He is not using the farm and it is being used by the original owner, the defendant. He said on June 1, 2005, together with others who had been settled on Vergnoug Farm they drove out defendant’s cattle towards defendant’s farm. A red vehicle approached them. In his group were about 20 people. The vehicle approached at high speed and the cattle ran off the road to the left side. When the vehicle stopped the defendant was carrying a fire arm and he fired a shot then handed the firearm to his son. He said he was 7 metres away from the defendant. Defendant then took either a pick-handle or knobkerrie and came face to face with plaintiff. He demanded to know what his cattle had done. Plaintiff said they were taking the cattle to defendant’s farm. All of a sudden defendant started assaulting him with the weapon he was carrying. He hit the plaintiff 3 times with a log. Plaintiff tried to block the blow with a stick. Defendant hit him on the hands and he fell down. As he lay down he tried to hold the defendant and he was hit on the arm by the two employees. Defendant hit him with something like a knobkerrie on the right leg. That was how he sustained a fracture on the tibia borne. He later noticed a deep cut on the left leg. He had a swollen face. The defendant’s son fired a shot pointing at where they were and directed another shot in the air. No one came to intervene other than verbally. He said after the firing of the shot those assaulting him left and he was left for dead. He regained consciousness at Maphisa Provincial Hospital. An ambulance took him to the United Bulawayo Hospital for treatment. He stayed at the United Bulawayo Hospital for a week. After his discharge he continued to attend for treatment.
He said as a result of the injuries he now walks with a limp and sometimes feels pain on the right side of the body. Doctors advised him never to run in his life.
Under cross examination it was put to plaintiff that he hit the defendant first. He denied. It was put to him that he tripped the defendant and both fell. He said that could be true as he was in danger of being killed and was trying to defend himself.
He denied that the rest of his group attacked the defendant. He said the defendant’s employees helped defendant to assault him.
When it was put to him that the defendant hit him on the leg as he had locked the defendant with his legs he said that was a lie. Asked if he had claimed to have been shot he said “yes” because a shot had been fired and raised dust close to where they were. He said he was not sure what caused the injury on his leg.
Asked why he told the police that he had been shot he said he suspected that it was a bullet wound. Asked if it turned out to be a bullet would he said he did not know. He said people who were there would tell the court what happened. He said that he did not see the defendant bleeding as he was left for dead. He denied that he was left standing. He said when he met the defendant he had been holding a switch. Asked if he was sure of who injured him on the leg he said it was the defendant and his team.
The plaintiff called one Zethi Ndlovu. His evidence was that he was with the plaintiff on the day in question, and the defendant is their neighbour. On the day in question they went to remove cattle from where they were settled. They were 20 people and they were removing cattle to take them to defendant’s farm. They met the defendant who emerged from the beasts driving at high speed. He got out of the vehicle wielding a fire arm. He fired into the air then threw the fire arm to his son. Defendant took a pick handle from one of his workers and hit the plaintiff on the head.
Plaintiff staggered backwards and fell down. Plaintiff hooked defendant with his legs and defendant fell. Defendant rose and started to hit plaintiff with a wooden handle. Mguni, one of the defendant’s employees took part in the assault using a knobkerrie. Plaintiff was paralyzed. Each time they tried to move forward defendant’s son would fire a shot and bullets passed them. They left the plaintiff for dead. The plaintiff did not fight back at all. He was hit on the lower part of the right leg.
He said initially the plaintiff was hit on the head then on the right leg with the assistance of the defendant’s colleagues. He said defendant attacked plaintiff because plaintiff was walking on the road while most of them were driving cattle on the side of the road. He said there were no utterances of words before the assault.
He denied that defendant asked where cattle were being taken to. He repeated that the plaintiff and defendant did not speak to each other at all. When told that plaintiff said he told defendant they were driving cattle to his home he said he did not hear that. He said the defendant was seated while hitting the plaintiff whose legs had hooked those of the defendant. He said defendant hit plaintiff once. Plaintiff raised a piece of stick from the cattle pen and he was hit on the head once. Asked if he was sure he said he was sure. When told that plaintiff said he was hit 3 times the witness said he did not see that. He claimed that he witnessed all of it. He said they had reported the cattle many times to the police.
On the injuries he said he saw only the injury in plaintiff’s right leg. Later he said he saw the broken leg bleeding.
He repeated under cross-examination that both plaintiff and defendant did not say anything. He said one Mguni and Dlamini defendant’s employees joined the assault. They were using knobkerries. They were hitting the same spot on the right leg all 3 of them. Asked how many shots were fired he said only one shot by the defendant and defendant’s son fired twice. He said the stick that plaintiff had was about 1,8 metres long. He said the first blow landed the plaintiff on the ground and he became unconscious. Defendant then rose locking his legs on the plaintiff’s legs.
In his defence, the defendant said he owns 4 ranches. On the 1st June somebody removed cattle from his farm. He met people chasing cattle off the farm. He had previously got a report of cattle being chased out of the farm on 31 May. He phoned the police but they were not helpful. They said they were having tea and could not come. He went with his workers and his son and met some cattle and two young men with axes. He proceeded and came across his cattle. He took pictures of the cattle and people behind the cattle. He walked towards them. He then realized he had left two rifles in the vehicle and he returned, removed them, and then locked the vehicle.
His son Dillen carried one rifle and his worker, Dlamini carried the other rifle. They met the group of people and he asked Ndiweni the plaintiff, who was right in front and nearest to him. He knew Ndiweni, the plaintiff. The plaintiff started insulting him saying “You … makhiwa” (Europeans) and plaintiff hit him with a stick on the left ear. Defendant had a hoe handle and he hit back. The handle is longer than a pick handle and he uses it as a walking stick, approximately (1 ½ metres long indicated.) He hit plaintiff on the side, on the thigh plaintiff fell and the stick broke. He stood near the plaintiff and the plaintiff grabbed him with his feet. He could not walk. He fell. Once on the ground plaintiff who had 2 sticks hit him on the body. He tried to turn but plaintiff was hitting him with the stick on the body. One of his workers tried to take the stick from the plaintiff but failed. The rest of the gang got onto the worker and he had to retreat. The defendant was then fighting other people who had knobkerries. Defendant’s son at that time fired 2 shots into the air. Defendant picked up a knobkerrie and hit plaintiff on the legs, possibly 6 to 7 times. He says this was the only way to get plaintiff to release his legs after which defendant managed to get on his knees and the fight was over. He asked one Sibanda why all that. While he spoke to Sibanda plaintiff got up. They went back to the car and left plaintiff talking to Sibanda. He said it was possible that plaintiff got injured on the legs, not on the body, because he could not reach the plaintiff’s body. He was not aware that plaintiff was fractured on the leg, but he left the plaintiff seated, not unconscious. At the hospital he saw a statement which said police removed a bullet from the leg and that plaintiff was shot by a pistol, but nobody had a pistol. He said the settlers came there in 2001 and he had no problems with them till the arrival of the plaintiff. He mentioned some disputes with the settlers and that he had refused to leave the farm.
He said he did not hit the plaintiff first but hit back when plaintiff took him by surprise. Asked later under cross-examination he said he normally carries the handle when driving cattle and uses it as a walking stick.
On injuries he said he had injuries on the arms and swelling on his back. He said before he picked up the knobkerrie there were no blows from plaintiff to defendant. He disputed that the plaintiff was unconscious and recovered at the hospital because the plaintiff had made a statement to the police at Kezi before going to the hospital. The plaintiff even told police at Kezi that a bullet was removed from his leg.
The defendant called his son Dillen who narrated a similar story like that of his father concerning the encounter with the gang that was driving his father’s cattle and the fight between his father and the plaintiff. He said when they met the cattle they stopped, and on realizing that they had left rifles in the vehicle they returned, removed the rifles and locked the car as they feared someone might reach the vehicle and the fire arms. They went towards the cattle and the plaintiff was in front leading the rest of the people. One of their workers saw a calf that was pushed by the stampeding cattle then he gave him the rifle while picking up the calf. As a result he had 2 rifles in his hands. He stood behind his father who asked the plaintiff what was going on. Plaintiff was carrying 2 sticks and started swearing at his father.
Plaintiff attacked the defendant and struck him on the left ear. He heard the exchange between his father and the plaintiff. After his father was struck on the left ear he retaliated by striking the plaintiff on the right thigh. The plaintiff fell down. His father’s stick broke into pieces. Plaintiff put his legs around those of his father and hit his father with the stick from a sitting position. When the defendant tried to turn plaintiff hit him several times on the back. Ngwenya, one of his father’s workers tried to stop the fight but the whole crowd charged forward shouting “Bulala! Bulala! Bulala!” which means “Kill! Kill!”
One of the persons who was hit left a knobkerrie which his father picked up and struck the plaintiff. Dillen says when he saw the whole crowd get on his father, he fired 2 warning shots. He said his father never fired any shots as the rifles were with him. He said proof of this is that the police recovered the 2 empty cartridges at the scene. He denied that his father struck the plaintiff first. He said the fight actually ended after he had fired the 2 shots. The crowd of people were heavily armed with axes and knobkerries.
After the fight ended he observed one Sibanda talking to the plaintiff and trying to get him up. The plaintiff claimed to the police and the Governor that he had been shot and that the defendant and his son should stay in jail. He said when the police saw blood on his father’s ear and shirt they told them to rush to the hospital. At the hospital both the defendant and the plaintiff were taken into the X-ray room and the plaintiff was still commenting about the incident. The police alleged that plaintiff was shot. He took photographs of the statement made by the plaintiff but that and other papers were taken by the police. He was then detained with his father for 10 days on allegations that they had shot the plaintiff.
Turning to the evidence of the parties, it is common cause that plaintiff was struck on the leg resulting in a fracture. It was also established that the defendant was injured on the left ear. That is why he was X-rayed on the head. What needs careful consideration is how the incident started and what really happened between the parties.
The plaintiff was leading a group of 20 people armed with axes and knobkerries. They were driving defendant’s cattle. That background reveals a potentially dangerous situation. An element of violence cannot be ruled out in the circumstances. The plaintiff was playing a leading role, and was ahead of the group, carrying sticks. He says after telling the defendant that they were driving the defendant’s cattle to his farm, all of a sudden, the defendant started assaulting him with a log. He was hit 3 times with the log. He tried to block the blow with a stick that he had. He said the blows were directed to his head but he managed to block tem. He says he then fell down. He does not say what made him fall. He says the defendant eventually fell too. He could not say what caused the defendant to fall. He says while he was on the ground he tried to get hold of him and defendant’s employees hit him on the arms. Defendant was given a knobkerrie by one of his employees and hit him with it on the thigh and this caused the fracture. He later noticed a deep cut on the left leg but did not know what caused it. Surprisingly he reported to the police that he had been shot by the defendant. His earlier reference to defendant firing a shot did not allege being shot on any part of his body. It is strange that he told the police later that defendant shot him with a pistol.
The plaintiff made a report to the police before he was taken to the hospital. His evidence that he was unconscious and only recovered at the hospital reveals that the plaintiff’s evidence is untruthful and very much exaggerated. It is also highly improbable that the blows he blocked with a stick fell him to the ground. It seems the evidence of the defendant, that after being attacked by the plaintiff the defendant retaliated by hitting the plaintiff on the thigh and causing him to fall is more probable than that of the plaintiff.
After seeing the plaintiff give evidence, and the way he responded in cross examination, I was left with no doubt that there was very little truth in what he said. His witness also failed to convince the court about what actually transpired. He too alleged that the plaintiff was left for dead. It is clear that striking the plaintiff on the thigh could not leave him looking like dead or even unconscious.
This witness suggested that the defendant hit the plaintiff on the head and he fell. He said plaintiff did not fight back at all. This even contradicts the plaintiff’s evidence as plaintiff said when he was lying down he was also trying to fight back.
The performance of plaintiff’s witness was also very unsatisfactory. Surprisingly, out of the whole gang that was with him, plaintiff chose to call only this one witness whose evidence remained completely unhelpful.
In assessing the evidence of the parties I am convinced that the plaintiff was the aggressor. He hit the defendant first and the defendant’s evidence is more credible when he says he retaliated by hitting the plaintiff with the hoe handle on the thigh and this caused plaintiff to fall. The defendant says once plaintiff was on the ground he hooked the defendant with his legs and defendant also fell backwards then sat up facing the plaintiff. That is why defendant could not move. When the crowd tried to join in the fight the defendant’s son fired two shots into the air. This accounts for the 2 empty cartridges that were recovered by the police at the scene.
The plaintiff further tarnished his evidence by alleging that a bullet had been removed from him. This was false. In his declaration the plaintiff had alleged that plaintiff and defendant were engaged in a cattle grazing dispute, and went on to say defendant attacked him without any provocation. His evidence does not support an attack without provocation as he alleges. Where a party, in an attempt to support his claim, gives evidence that is found to be clearly false it becomes difficult for a trial court to establish which part of the party’s evidence is true besides what is found to be common cause or what is supported by some other credible evidence.
The group of 20 were driving the defendant’s cattle to his farm. The plaintiff was the leader of the group. He was armed with sticks, and his colleagues with axes and knobkerries. When they met the defendant the plaintiff was obviously in a fighting mood, hence the insult he hurled at the defendant in the form “You Cloet … makhiwa”. The injury on the defendant’s left ear supports his evidence that he got that blow before he retaliated with the hoe handle.
Where a party starts a fight with another in such a situation, he risks injury to himself in self defence by the other party as there is no prior knowledge or limit to how the other party will retaliate. The court cannot, in such a case, determine liability by comparing the injuries of the parties and awarding damages to the party who suffered worse injury than the other unless a clearly dangerous or lethal weapon capable of causing serious injury dangerous to life was used. In circumstances exceeding self defence it is unfortunate that plaintiff was worse off at the end of the fight, but this was as a result of his own actions.
It is to be expected that in a fight the parties never inflict equal harm to each other. The fact that a fracture resulted cannot be used to determine any balance in the injuries. Both were injured, one a bit better, the other rather worse. This cannot be a criteria to determine liability.
The fact that the defendant was convicted and fined for assault at the Magistrates’ Court does not assist the plaintiff’s case. In the result, the plaintiff has not established entitlement to damages. His claim is dismissed with costs.
Mashayamombe & Company, plaintiff’s legal practitioners
Phulu & Ncube defendant’s legal practitioners