BULAWAYO MINING COMPANY (PVT) LTD t/a HOW MINE v DDNS SECURITY OPERATIONS (PVT) LTD t/a SECURICO (379 of 2025) [2025] ZWHHC 379 (30 June 2025)

18 **HH 379-25** **HCHC 366/23** BULAWAYO MINING COMPANY (PVT) LTD t/a HOW MINE versus DDNS SECURITY OPERATIONS (PVT) LTD t/a SECURICO HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 29 October,11 November 2024 & 30 June 2025 **Trial cause** _T. Mpofu_ for plaintiff _R. Chatereza_ for defendant CHILIMBE J INTRODUCTION [1] Before me is a claim against a public carrier and provider of security services by its client for loss of that client`s goods-namely 11.95kg of gold bullion valued at US$675,000 -during conveyance. The claim-framed in the main (Praetor`s Edict) and alternative (aquilian action) -issues from what has been termed the confluence of the law of delict and the law of contract.1 [ 2] The carrier-defendant raised a counter-claim in the sum of US$ 54,617.18 as outstanding payment for services rendered. A total of 4 witness testified during the trial- 1 for the plaintiff and 3 for the defendant. The last defendant witness testified on the counter claim. But the greater part of the trial was devoted to the main claim and the robbery incident. [3] The witness regaled details of the unfortunate event in which guns were pointed and fired, threats of deaths issued, terrified guards bundled in the confined back of a van, as well as a high-speed car chase. In fact, it was alleged by one of the witnesses that one of the robbers later succumbed to gunshot injuries sustained at the scene. The very scene where the high-valued consignment was snatched-never again to be seen. [4] But after the high drama, the legal issues to be determined devolved, apart from the inevitable evidentiary considerations- to the defendant`-carrier`s strict liability and defence thereto under the Praetor`s Edict -_nautis, cauponibus et stabulariis 2_. And of course, the currency question as it applied to relatively less complex counter claim. THE PLAINTIFF`S CLAIM [5] The main claim, as indicated, was based on the allegation that defendant lost 11.95kg of gold bullion belonging to plaintiff valued at US$675,000,00. These being goods defendant had been entrusted with the duty to transport from plaintiff`s mine (called How Mine) to a destination in Bulawayo. In the alternative, plaintiff averred that defendant, having been so contracted to safely convey the gold bullion, performed such duty negligently leading to the loss of the consignment- to plaintiff`s prejudice. [6] In the alternative, plaintiff based its claim on negligence alleging the following particulars; - 1. it failed to provide adequate and competent security to protect the bullion; despite being equipped with two-way radio communication, panic button and a cell phone, the escort crew did not use any of the equipment to raise an alarm during the emergency; 2. the escort guards did not do anything to protect the gold bullion when confronted by robbers 3. one of the security vehicles that was not stopped by the robbers drove away and did not stop to fend off the robbers and assist the plaintiff’s chief security officer who was resisting the robbery. 4. No emergency brakes were applied by the speeding escort vehicles at the scene of the robbery showing that there was, on a balance of probabilities, collusion between the robbers and the guards; 5. The robbers used their gate away motor vehicle, a GD6 Toyota twin cab, to block the escort vehicles, showing that on a balance of probabilities, the robbers knew or expected that the escort vehicles would stop without resistance; 6. The defendant failed to observe the skill and reasonable standards of security required of a security company in similar circumstances. THE DEFENDANT`S PLEA [7] Defendant denied the alleged breach of contract and negligent cause of loss to plaintiff. Whilst admitting the existence of an oral contract between the parties (because plaintiff declined to execute a written draft), defendant averred that the consignment was lost as a result of _vis major_. [ 8] The _vis major_ was particularised as follows in the plea; - 1. At the 8km peg along Old Tuli Road, enroute from the Plaintiff’s mine, with the gold bullion, the Defendant’s motor vehicles were ambushed by armed robbers. 2. The armed robbers blocked the road and circled the Defendant’s motor vehicles that were transporting the bullion. 3. The Defendant’s armed guards were disarmed and assaulted by the robbers who made away with the bullion. 4. The occurrence of the armed robbery was unforeseen and no human foresight could have prevented it. [9] The defendant raised the following in defence of the alternative claim; -the bullion was conveyed under adequate security arrangements including properly trained and equipped personnel in three vehicles. A superior force in the form of robbers bearing more potent firearm’s overwhelmed the security escort. [10] Defendant also averred that any duty of care as lay on it derived from the terms of the contract. In addition, defendant noted that plaintiff assumed the risk of loss through robbery as much as it also compromised security measures by declining advice rendered to it by defendant regarding the timing of the bullion runs. Defendant also averred that after its security unit was neutralised at the scene, its guards took reasonable mitigatory steps with some retreating to a zone of safety, whilst those in the lead vehicle sped to alert the police in Bulawayo. [11] Defendant denied any suggestions that its personnel may have colluded with the criminals. It shifted suspicion in that regard to plaintiff`s employees- especially the Chief Security Offer who was present in the convoy of vehicles escorting the bullion. IN RECONVENTION [12] The defendant claimed, for services allegedly rendered during the parties period of engagement, the amount of US$54,617.18 as outstanding fees per invoices issued. Plaintiff disputed being so indebted indicating that the amount if at all due was payable in the alternative local currency rather than exclusively in United States dollars (“USD”). Plaintiff further pleaded that the amount could be set off against its bigger claim against defendant. The parties each replicated to the other`s claim and essentially sustained the original positions. THE ISSUES FOR TRIAL [13] The following issues-reproduced as framed and filed by the parties, were identified for trial: - 1. Whether the loss of the gold bullion was caused by _vis major_? 2. Whether the defendant breached its obligations to the plaintiff? 3. Whether the defendant was negligent in discharging its duties? 4. Whether the defendant is liable to pay the sum of US$675 000,00 to the plaintiff? 5. Whether the plaintiff is liable to pay the sum of US$54,617.18 to the defendant? [14] A number of key issues are common cause. The two parties had a contract. The defendant picked up a consignment of gold with obligation to secure its passage to a destination in Bulawayo. The cargo was snatched by armed robbers. [15] Given the matters pleaded-where each party sullied the other with allegations ranging from frustration of performance through compromise of security arrangements, to deliberate dereliction and association with the robbers, it will be necessary to set out the testimony in detail. Especially details of the robbery incident itself upon which this dispute turns. [16] This detail is further demanded by the regrettable recognition that despite the nature of the contract, service and subject matter, the court was not privileged with the benefits of technology in the form of video evidence. THE EVIDENCE: PLAINTIFF`S CASE _Plaintiff witness: John Godwill Makoni_ [17] Mr. Makoni’s testimony went thus; -he was employed by plaintiff as its Chief Security Office, a post he had occupied since 2019. His previous experience included 8 years’ service in the Zimbabwe Republic Police (“ZRP”) Criminal Investigations Department (“CID”) and stints with several listed companies in the capacity of security manager. He was the holder of a masters` degree in Risk and Security Management and was responsible for protecting plaintiff`s assets on site and during transit. [18] Despite having its own internal security personnel trained to handle firearms, plaintiff required a provider with specialist capabilities to convey its gold bullion from the mine location to Bulawayo. A specially trained and licenced security provider offering a superior service to plaintiff`s own internal capacity. The witness`s testimony was that gold in transit represented a particularly vulnerable cargo as it was always target of armed despoilers. [19] The possibility of an armed attack during a bullion run was quite high. A number of such incidents had in fact taken place, so said the witness without enumerating. The defendant was at all times aware of this risk. Its task under the contract was to repel attempts to forcibly seize the cargo. The issue of robberies was discussed in reports exchanged between the parties. In fact, the defendant itself had been involved in such incidents with its other clients. [20] Defendant- a provider of security and cash-in-transit (“CIT”) services was engaged by plaintiff under a contract whose terms the witnesses confirmed he was familiar with. His specific involvement in that contract included setting out the terms as well as escorting consignments of gold from the mine to Bulawayo. Mr Makoni outlined the terms of the oral contract as follows; - [21] The defendant was under obligation to avail 2 armoured vehicles each manned by a driver and armed crew commander. Armoured vehicles were specialist vans whose exterior was fortified by armour plating to protect the occupants from intrusion by bullets. Three armed guards rode in each vehicle. The vehicles were supposed to be equipped with communication devices namely a two- way radio, crew commander`s mobile phone, and closed-circuit television cameras (CCTV) to facilitate contact with defendant`s control room. [22] As regards the procedure before during and after each bullion run, Mr Makoni testified as follows; - on the day before a bullion run, he or his second in command, communicated with “defendant`s manager” to request and schedule a service for the following day. The time for the bullion run would also be confirmed during such discussion. On arrival at How Mine on the next day, defendant`s armoured vehicles were led into the Loading Bay located in a restricted zone called the Smelting Area. [23] The gold was then loaded and sealed by the witness and the Plant Manager into defendant`s bullion boxes. The defendant`s crew commander would then acknowledge receipt of the consignment by signing in plaintiff`s security logbook and also issue a receipt from defendant`s receipt book. It was up to the crew commander to determine which of his 2 vehicle carried the gold. _The bullion run on 4 October 2022._ [24] Mr. Makoni`s evidence was that all the above handover-takeover procedures were undertaken on the day in question. The bullion boxes were loaded in the second vehicle together with a number of other decoy or dummy boxes. Three vehicles -the two vans of the defendant and the witness in a Toyota Fortuner bringing up rear- left for Bulawayo in a convoy. They had travelled for about 11 km from the mine when the robbers struck. The scene was described as a construction site with a high wall. [25] As the lead security vehicle passed, a Toyota GD6 truck which had been positioned on the side facing the road, moved onto the carriageway to block the mid vehicle. This being the very one carrying the precious cargo. Simultaneously, the witness said he observed a Nissan NP 300 truck at the scene as well. Meanwhile armed men swarmed from the surrounding bushes. The witness stopped his vehicle and quickly reversed from the spot. As he so drove, people started firing at his vehicle. Bullets struck his bonnet, front left fender and one grazed the rear right window and smashed a backseat headrest. [26] Mr. Makoni testified that he executed a U-turn and drove for about 50 meters in the direction of How Mine. He observed a Nissan Mach -which he had earlier on passed-driving toward the scene. He then did another U-turn and drove back toward the construction site. Commotion greeted his eyes. He saw the defendant`s middle van parked, its doors open as men carried bullion boxes into the GD6 before taking off in the direction of Bulawayo. [27] The witness stated that he passed the defendant`s cargo van and pursued the escaping GD6.He caught up and overtook the 3 vehicles; - the Mach, NP300, and GD6 about 3km down the road. He fired his revolver hit the Mach, and deflated two tyres on the NP300 causing it to lose control. The robbers in the GD6 pursued and fired at him. He then drove off at high speed toward Bulawayo and raised CID Special Tactics Unit`s Detective Chief Inspector Jachi who deployed a team. The witness said he encountered this team in Bulawayo at the corner of 12th Avenue and Samuel Parirenyatwa. [28] On returning to the scene, they came upon the immobilised NP300 and the police recovered a firearm among other items. But not the gold. [29] It was the witness`s view that the defendant`s team was either derelict or collusive in its handling of the incident. Firstly, the lead vehicle`s occupants ought to have quickly sensed danger upon observing the GD6 positioned as it was. Secondly, there was no resistance whatsoever from all of defendant`s personnel. [30] The guards bore .303 rifles-which according to the witness, were heavy duty rifles. These armed guards did not attempt to escape into the bush in order to engage the thieves from a vantage point. Thirdly, defendant`s personnel did not pursue the escaping GD6.The section of road where the convoy was blocked was a straight stretch about 120 metres long according to Mr. Makoni. [31] Fourthly, had the defendant`s team utilised the standard communication devices, the CID could have been alerted much earlier to enhance the chances of intercepting the getaway GD6. Fifthly, before it was accosted, the convoy had been traveling at about 100 km/hr with each following the other quite closely. In fact, an escort vehicle can do about 120km/hr. But to his surprise, he noted no skid marks at the spot where the GD6 cut in to block the middle vehicle. Suggesting of course, that the bullion-carrying van stopped for the GD6. [32] Another anomaly was that if the robbers were unaware of which vehicle carried the bullion, why did they allow the lead vehicle to escape? On the same point, he noticed -as a security expert- the robbers` unusual decision to use the GD6 as both the interceptor and getaway car. Logically, robbers deploy another vehicle to block the quarry and preserve the high-powered escape vehicle for exactly such purpose- a speedy departure from the scene. The sequence at the scene was puzzling. It was highly suggestive of connivance between the defendant`s crews and the robbers. [33] Continuing, Mr Makoni testified that defendant`s lead vehicle drove off and never returned. He even managed to pursue and engage the robbers, drive 14km to Bulawayo and return to the scene with CID officers with the lead vehicle still nowhere to be seen. Despite being alone, driving an un-armoured car and armed with a mere CZ pistol with 6 rounds, he immobilised one car, hit another and shot at the occupants. One of whom, to the best of his knowledge, later died from the injuries in South Africa. [ 34] Through this witness, the report titled “Investigations Incident Report: Armed Robbery Of Bullion At Bulawayo-How Mine 11 Km Peg” dated December 2022 was admitted in evidence as exhibit 1. This was a report produced by plaintiff and summarised a number aspects relating to the loss of gold in transit. Despite undertakings to do so, defendant did not, according to Mr. Makoni, deliver the CCTV footage of the incident. Defendant`s own version of the incident was captured in a report/letter authored by Mr. John Phiri, the Operations Manager, dated 7 October 2022 [ admitted as exhibit 23]. [35] Mr. Makoni also acknowledged a letter dated 9 November 2020 which had been addressed to him by defendant`s Operations Manager -Cash Management Mr Blessed Dube. The rather prescient letter summarised a number of security concerns associated with the bullion runs especially the increase in armed robberies on CIT vans. [36] Mr. Dube proposed that the receiver of bullion deliveries, Fidelity Printers, be engaged so as to vary the delivery runs which had now been fixed on Tuesdays-a dangerously predictable arrangement. Mr Makoni testified that the recommendations could not be adopted as Fidelity Printers remained inflexible. This position was communicated to defendant and they rendered neither protest nor disclaimer but continued to offer service. [37] Under cross-examination, the witness testified thus; -the fateful day`s bullion escort had a total of about 11 to 12 security personnel who encountered about 15 robbers. He maintained that despite those numbers, the defendant`s guards could have done better. Instead, they chose to cower helplessly, sprawled in the dust. When challenged as to how defendant`s guards could have triggered alarm through panic buttons, radios and mobile phones when those gadgets were confiscated by the robbers, the witness pointed out that such did not apply to the gadgets in the lead security van which escaped the scene. [38] The witness confirmed that some of the robbers wielded AK 47 assault rifles. The spot where the robbery took place featured a high wall with a wide ungated gap to the right, and a steep embankment to the left. Mr Makoni disclosed under cross examination that upon reversing to move out of danger, he managed to reach his colleagues at the mine who were in fact the first to reach the scene. [39] He disputed Mr. _Chatereza`_ s contention that his pursuit of, and confrontation with the robbers was either foolhardy or stage managed. The witness revealed that his effort to shoot at the robbers` vehicles found target with one robber later succumbing from the gun shot in South Africa. He also immobilised in the process, the NP 300 truck which yielded valuable evidence leading to the arrest of a number of suspects. As regards the draft contract which defendant shared with plaintiff, Mr Makoni testified that there were outstanding issues which were never concluded. And regarding Blessed Dube`s letter expressing security concerns, Mr Makoni explained that the matters were discussed verbally. [40] Defendant`s competency was gauged, stated Mr Makoni, not so much by the uneventful stretch in the parties` relationship between 2019 and 2022, but by that single act of dereliction on 4 October 2022. His response to the defendant`s counter claim was that it was both cynical and inaccurate. Cynical in the sense that a carrier who had lost 11.95kgs of gold worth US$675,000 through cowardice and incompetence- had the gall to bill the victim for services. Inaccurate because the plaintiff invoiced defendant in ZWD rather than in USD.With this testimony, plaintiff closed its case. THE DEFENDANT`S CASE _Defendant 1_ _st_ _witness: Marko Mukazi_ [41] The witness stated that he held the rank or title of Lance Corporal within defendant company. He was the crew commander of the security personnel deployed to do the bullion run on 4 October 2022. He testified that to date, he had clocked 16 years in defendant`s employ, having functioned as crew commander since 2018. He had received extensive training in firearms handling including periodic refresher courses meant to ascertain proficiency. [42] Mr Mukazi related the procedure on bullion runs as well as the fateful day`s assignment. Upon arrival at How Mine, his team had no idea, as was the norm, of the quantity of gold to be ferried. The procedure was that his team handed over defendant`s bullion box seals to the plaintiff`s employees then recorded the consignment in defendant`s voucher book. An officer of plaintiff then signed the hand-over in a voucher book provided by defendant and received a copy whilst the security team retained a stub. [43] After receiving the bullion box, he loaded it in the vehicle he was traveling in on the day. He chained the bullion box in a secure partition in the back cabin of the vehicle called a Chubb. The defendant`s team was using 2 vehicles. Mr. Mukazi’ s further testimony was that his team normally uses 2 vehicles each equipped with CCTV cameras. Returning to the procedure, the witness testified that 2 guards rode in the Chubb monitoring the cargo and he locked the vehicles doors. These doors once closed, could not be opened from the inside. [44] On the day in question, he rode as a front passenger in the middle vehicle of a three-car convoy as they conveyed the bullion to Fidelity Printers in Bulawayo. In order to confuse would be assailants, the procedure was to shift the formation of the vehicles in the convoy. At a spot along the way described by the witness as “Magaya`s Church”, a Toyota GD6 truck emerged through a gateless gateway between a wall and approached the road. The lead car swerved, dodged the GD6 and drove away, according to Mr. Mukazi. [45] But their van was forced to stop as the driver braked hard in order to avoid hitting into the GD6. So abrupt was the stop that he leaned onto the dashboard to avoid being thrown against the windscreen. No sooner had they stopped than 2 armed men emerged from the GD6 and approached their vehicle. One carried an AK 47 and went to the driver`s side whilst 2 more brandishing shotguns approached him. The robbers pointed a gun at him knocking on his window. His conclusion was that his colleagues and he would have perished had they refused to open as the robbers declared the intention to set the vehicle on fire. [46] With one robber confronting him and another pointing an AK 47 rifle from the driver`s side, there was no way he could have drawn his pistol without exposing himself or his colleague to harm. Mr Mukazi`s evidence was that although the vehicle was equipped with a panic button on the right side and underneath of the steering wheel, the driver could not activate it due to shock from the attack. According to the witness, these two men ordered him to open the door and alight. Concomitantly, the driver also exited the vehicle and the witness stated that he observed the AK 47 robber trip the driver to the ground. [47] He himself was immediately stripped of his firearm and radio before being struck by a hammer “on the knee”. He was dealt a second blow “on the thigh” then tripped and commanded to lie on the ground. The robbers proceeded to grab the keys to the back cabin of the vehicle, opened the door and ordered the guards therein to disembark. Thereafter, the robbers accessed the secured section of the rear cabin called a “Chubb” and uplifted the bullion and dummy boxes. The witness and his 7 colleagues were then bundled into the back cabin and left therein. [48] After a while, the witnesses stated that he concluded that the robbers had departed. He ordered his colleagues to open the door to the back section but none respondent due to fear. He emerged therefrom, retrieved his mobile phone (which the robbers had missed) and “beeped” the control room. Beeping meaning the placement of a call to a selected number then instantly disconnecting it before, or as soon as the call recipient answers. It is a convenient (or annoying) method resorted to by those with no credit in their phones to engage callees. Control Room promptly called the witness back and he reported what had transpired. [49] Mr. Mukazi stated that “there were 13 robbers in all”. Two emerged from the GD6 whilst some came through the gap in wall. The witness confirmed that Mr Makoni formed part of the convoy but reversed and took off in a direction the witness could not confirm. The guards in the back of his vehicle were according to him, forced to open the door under threat. He further testified that the robbers were menacing. [50] One two-way radio was snatched by the robbers but the vehicle mounted one remained. The robbery lasted about 2 to 3 minutes. In his estimation, had he pressed the panic button, the defendant`s reaction team based in Suburbs area of Bulawayo would have taken 2 minutes to reach the scene. Mr Mukazi dismissed suggestions of collusion. His team was handed over to CID, questioned and cleared. [51] He was not in a position to explain the puzzling decision by the robbers to place their getaway vehicle at the risk of damage via a collision. As regards the averment that his team colluded by relaying information to robbers, he explained that his team had no clue as to what task lay ahead of them until they reported for work and were deployed. Steadfastly, the witness denied that his crew was negligent at all at the scene. We were ambushed, he insisted. And once ambushed, one had no option but to surrender. [52] Mr Mukazi was subjected to an extremely lengthy cross examination by Mr. _Mpofu_. Under such intensity, his testimony came thus; -he recognised that there was no fatality at the scene and that the robbers did not make good their threats to harm his crew. He also admitted that had the measures subsequently proposed by defendant`s Operations Manager Mr. John Phiri in his 22 October 2022 report been implemented, the robbery may well have been thwarted. [53] These included (i) strengthening the security team cover by enlisting armed ZRP officers, (ii)utilisation of a digital locking mechanisms for bullion safes, (iii) surveillance of bullion runs by unmarked vehicles to monitor route, (iv) “blitz checks”, and situation and (v) adoption of an irregular bullion run routine. [54] As in his evidence in chief, the witness steadfastly denied that his team acted with cowardice. He reiterated several times over that they were ambushed by men who wielded superior weaponry. He testified that indeed on the day in question they did not utilise armoured vehicles. And that had they used such, the robbery would have been avoided. The witness refused to be drawn into speculating if the robbers were aware of the fact that the escort vehicles were not armoured. [55] The possibility of a robbery during CIT runs was high, stated Mr. Mukazi. Further, he confirmed that his line of work involved the risk and dangers of armed robberies. Where there were guns, great danger invariably lurked. The witness also acknowledged that had their team been backed up by “a long gunman”, such officer could very well have shot at the robbers from a safe location. A long gunman apparently being an armed guard trailing a convoy for the very purposes of engaging assailants from a safe zone. [56] When questioned as to whether he had received any specialist training to deal with armed assailants, the witness`s response was that “we go to Llewelin Barracks with soldiers to hit targets.” They also received training and watched videos. In particular, he stated that he had been trained to assess a situation, make a judgment and avoid brash action that could endanger self or crew. Because they were surprised by the ambush, the witness and his crew were unable to deploy specialist skills. He observed the expert manner in which the robbers handled their weaponry and decided otherwise. [57] The witness admitted that on the day, panic and fear overwhelmed his team. The driver could not reach the panic button because he panicked, stated the witness in unconscious irony. Although the vehicle cameras captured CCTV footage of the event, Mr Mukazi told the court that he was unaware of what happened to the tape. On the possibility of security leaks or compromise the witness testified that prior to 4 October 2022, he had undertaken How Mine bullion runs twice. Neither him nor his crew members were privy to information regarding the impending bullion run and they only learnt of the destination when they called at defendant`s premises to pick up the cargo. [58] The winess was quizzed at length on the possibility of collusion with the robbers. He denied any involvement. The vehicle in which he rode did not deliberately slow down to halt pliantly before the GD6. Although he could not be specific about the speed they were travelling just before they were accosted, he insisted that the driver braked hard and he was almost thrown against the windscreen. He declined to comment on why the robbers put their high-powered escape vehicle at risk of damage through impact. [59] Defendant`s back up security team from Bulawayo arrived at the scene after CID officers. Regarding communication, the witness admitted that he was only able to make contact with his control room after the incident. He also testified that the two-way radios could not be used because of network problems in the remote location of the robbery scene. _Defendant 2_ _nd_ _witness; - John Phiri_ [60] Mr Phiri stated that he was defendant`s Operations Manager and in that capacity, was responsible for overall efficiency of defendant company`s security activities. He managed and deployed personnel, allocated resources for tasks, monitored contracts and liaised with clients. Despite holding “o” level school certification, he claimed to be a hands-on security expert who had received extensive on the job training. Having joined defendant company as an operative driver in 2006, he had risen to Operations Manager in 2012, a position he occupied to the date of testimony. [61] Mr Phiri recounted the post incident review and activities he conducted culminating in the reports dated 7 and 10 October 2022.He detailed the efficacy of each of the recommendations he had so outlined in that report. The witness defended the decisions and conduct of his guards at the scene stating that they were overwhelmed by a superior force. He had visited the scene afterward and concluded that their options were limited. [62] Mr Phiri confirmed that his crew were seasoned CIT guards who had been doing the How Mine bullion run for 3 years. They were well trained and Mr Phiri detailed the courses undertaken and objective thereof. These included (i) basic operative course, (ii) CIT and bullion course, (iii) firearms course and (iv) refreshers course on all these. He testified that the bullion course entailed training guards on observations at pick up point, positioning, taking charge of asset, and use of vehicles on bullion runs, and how to handle emergencies. But in all these course, the guards were taught to “put life first”. The firearms course instilled knowledge on firearm, kill range, effective utilisation and how to position oneself after emerging from the CIT vehicle. [63] The witness then related the bullion run procedure as well as contractual terms between plaintiff and defendant. Whenever plaintiff required service, its officers called him or a Mr Hove, defendant`s employee. Once service was booked, the instructions were treated confidentially. Supervisors were then briefed and respective employee crews selected. These employees would be informed in the evenings (personal mobile phones were not allowed during working hours) to report at work in the morning. The next day, relevant crews would be checked for preparedness including adequacy of basic equipment at a parade before deployment. [64] The witness stated that plaintiff would inform them of the bullion destination between locations in Bulawayo and Harare. Harare runs involved beefed up security teams. It was untrue, the witness testified, that the contract involved usage of an armoured CIT van. Regarding the CCTV footage, Mr Phiri stated that he had asked Mr Makoni to bring a flash drive to copy the media but the latter was not forthcoming. [65] Again subjected to an extended cross-examination, the witness stated thus; -although he was not directly involved in the negotiation of the contract between the parties, he became aware of same due to his function. Whilst he was not an instructor involved directly in the training of the guards, he was had an input into such process. [66] Mr Phiri confirmed the assertion that had the security measures he recommended in his security report of 7 and 10 October 2022 been in place, the robbery could have been foiled. In fact, despite the potency and high risk of armed attacks during bullion runs, despoliation was actually avoidable. Whilst accepting that the recommendations in his reports entailed deliverables on the part of defendant, such measures were a dual duty on both plaintiff and defendant. [67] The witness repeated Mr Mukazi`s view that Mr Makoni`s decision and conduct to engage the robbers was unwise. In his own words, _“Mr Makoni risked his life and recovered nothing”_. But under further questioning regarding how Mr Makoni immobilised one vehicle by deflating its tires with a gunshot, Mr Phiri abandoned his earlier statement that Mr Makoni found the robbers` vehicle parked after experiencing a mechanical breakdown. He stated instead that Mr Makoni did well in tackling the robbers. He insisted that the defendant`s team could not repeat the feat as it was immobilised. [68] The witness also claimed credit for Mr Makoni’s actions stating that it was defendant who had acquainted him with the risk of bullion runs and that he also formed part of the security convoy. When asked as to whether all the guards on the 4 October 2022 How Mine run had received training in all the courses, the witnesses’ answer was that it was not so. Some guards attended some courses but not every one of them had undergone all the courses. [69] Under further probing, the witness disclosed that his colleagues Hove and Joshua Mutandara defendant`s officer in charge of Bulawayo CIT were aware of the next day`s run. The three also informed the select crew for the next day`s How Mine run. This meant that a total of 12 guards knew- by 20:00 hours the night of 3 October 2022-of the 4 October 2022 bullion run. _Defendant`s 3_ _rd_ _witness Clemence Tefura_ [70] In relating this witness`s evidence, I will continue to refer to the parties as plaintiff and defendant in the main. Mr Tefura was defendant`s Accountant responsible for debtors. His evidence related to the counter claim which, contrary to Mr Makoni`s earlier perception, excluded the fee for the eventful 4 October 2022 run. The witness indicated that defendant had not considered it morally proper to raise an invoice for the disastrous run although it incurred cost in fuel and other components normal for such services. [71] The essence of his testimony was that plaintiff owed defendant a total of US$54,617,18 on previous invoices raised for work done. This liability was expressed and payable exclusively in USD.The parties` contract prescribed that fees would be payable in such currency. Initially, plaintiff settled invoices in local currency but “we changed to USD”. Once defendant started issuing invoices in USD, plaintiff proceeded to pay in such currency as well, stated Mr. Tefura. He relied on a letter dated 30 June 2020 sent to plaintiff under cover of an email dated 15 July 2020 stipulating new rates for defendant`s services. [72] Under cross examination, the witness clarified that the amount claimed was for the period March to October of 2022.He was challenged as to why if the bills were raised and payable in USD, the statements for the periods (i) 1 June 2022 to 31 August 2022, (ii) 1 January 2022 to 15 August 2022 and (iii) 31 August 2022 to 30 September 2022 were all raised in RTGS. The witness persisted with the position that bills were settled in USD.When invited to deliver proof that statements rendered in USD were settled in that currency during the period 31 March 2022 to 31 October 2022, the witness was unable to proffer any. Thus the defendant closed its case. THE LAW. [73] Before commenting on the evidence, I will turn to the legal principles applicable to the disposition of this dispute. The legal issues in this matter are on all fours with those identified by CHIDYAUSIKU J (as he then was) in _Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt) Ltd_ 1994 (2) ZLR 222 (H), a tragic replication, apart from the fatalities, of the present matter. The learned Judge held as follows at page 226; - “I now turn to consider the issues that fall for determination in this case. The plaintiff in its declaration sets out two causes of action. __Firstly_ _**,**__ the plaintiff avers that when the defendant received the bullion for transportation it was acting as a common carrier. As a common carrier, the defendant had strict liability to deliver the consignment it failed to deliver. __Secondly__ , and in the alternative, the defendant was negligent in its dealing with the consignment of the bullion, which negligence led to its loss. __The effect of the first allegation__ _— that the defendant is a common or public carrier — is that, if established, it will impose upon the defendant strict liability for the loss of the bullion without the need for the plaintiff to establish fault on the part of the defendant. In that event, the defendant can only escape liability if it establishes one of the exceptions to the strict liability imposed on common or public carriers by the praetorian edict._ __The second cause of action__ _will only succeed if the plaintiff establishes negligence or fault on the part of the defendant. The onus to establish such negligence or fault lies on the plaintiff.”_ [74] This approach aligns with the manner in which plaintiff pleaded its case; - the main claim was brought under Praetor`s Edict and the alternative as an aquilian action. The resultant difficulties of this 2-stage test/ approach were recognised in both the above decision as well as _Cold Storage Company Limited vs Beitbridge Rural District Council_ HB17-14. As will be shown hereunder, - to some degree- the court may need to conflate both approaches by adverting to the elements of negligence as part of assessing whether the defence of _vis major_ has been fully satisfied. Nonetheless, adopting the 2-stage test approach, I turn to the main claim. [75] The question is whether defendant managed to offset the onus placed upon it to prove the existence of superior force. I take note of the fact that in _Independence Mining_ , the court recognised a robbery as amounting to _vis major_ based on how such had been defined in the authorities stating as follows at pages 230-231; - “Having held that the defendant is a public carrier, it is thus strictly liable for loss unless it has established that armed robbery is vis major exempting the defendant from liability. Dönges4 _op cit_ at pp 50 to 51 discusses the issue of armed robbery as a defence of vis major. He demonstrates [that] the conclusion that armed robbery does not constitute vis major is not supported by the jurists. He maintains armed robbery is vis major and constitutes a defence to an action founded on the Praetor ‘s Edict. In support of this proposition, he cites Voet Commentary on the Pandects 4.9.2 and Grivellus Decisiones 49.12. The learned author also makes the following observation at “The case of robbery seems to accord well with our analysis of casus fortuitous. It has the essentials of that conception and there seems no reason for distinguishing between robbers by sea (pirates) and robbers by land (praedones)………… In the result, I have come to the conclusion that armed robbery, such as occurred in this case, constitutes vis major exempting the defendant from liability. _I have come to this conclusion on the authority of Dönges and the authorities he has cited, namely Voet and Grivellus.”_[ underlined for emphasis] [76] Mr _Mpofu_ , in resisting the plea of _vis major_ , took his argument beyond the above approach in _Independence Mining_. He argued that in _Independence Mining_ the court recognised that whilst robbery amounted to _vis major_ , the defendant carrier was still required to plead and discharge the defence and onus thereof. Counsel cited the authority of _Westbank Division of First Rand Bank Ltd v Dladla_ CASE NO: 0932/2021 wherein the High Court of South Africa recognised the principles applicable to the defence of supervening impossibility. [77] Locally the same principles were articulated in decisions such as _Standard Chartered Bank Zimbabwe Limited v China Shougang International_ 2013 (2) ZLR 385(S), _Firstel Cellular (Pvt) Ltd v NetOne Cellular_ 2015 (1) ZLR 94 (S), _Eddies Pfugari (Pvt) Ltd & Anor v Knowe Residents and Ratepayers Association & Anor_ SC 2-21, _Legacy Hospitality Management Services Limited v African Sun Limited & Anor_ SC 43-22. [78] I may-whilst on the authorities- recognise and hold as distinguishable, 2 authorities referred to by defendant. These being (i) _Cold Storage Company Limited vs Beitbridge Rural District Council_(supra) whose facts and _ratio decidendi_ render it inapplicable herein and (ii) _SARS v Encarnacao N.O._ (543/2017) [[2018] ZASCA 71](/akn/za/judgment/zasca/2018/71), a South African decision whose outcome turned largely in application of that nation`s revenue laws. [79] Clearer guidance on how to treat the defence of _vis major_ was issued, in my view, by the Supreme Court in Firstel _Cellular v NetOne_ at pages 101 G-H to 102 A-B per PATEL JA (as he then was) that; - “It is trite that _the courts will be astute not to exonerate a party from performing its obligations under a contract that it has voluntarily entered into at arm’s length_. Thus, the suspension of a contractual obligation by dint of _vis major_ or _casus fortuitus_ can only be allowed _in very compelling circumstances_. The courts are enjoined to consider _the nature of the contract_ , _the relationship between the parties_ , _the circumstances of the case_ and _the nature of the alleged impossibility_. See _Watergate (Pvt) Ltd_ v _Commercial Bank of Zimbabwe_ 2006 (1) ZLR 9 (S) at 14B-F. In particular, it must be shown that _the impossibility is objective and absolute in contradistinction to one that is merely subjective or relative_. See _Chiraga_ v _Msimuko_ 2002 (2) ZLR 368 (H) at 380C-E, ……………… Again, _the contract must have become finally and completely impossible of performance_ as opposed to the situation where one party _is only temporarily disabled from fulfilling its obligations_. See _Beretta_ v _Rhodesia Railways Ltd_ 1947 SR 48 at 49-50; _NUST_ v _NUST Academic Staff & Ors _2006 (1) ZLR 107 (H) at 109A-D; _Mutangadura_ v _TS Timber Building Supplies_ 2009 (2) ZLR 424 (H) .at 429C-F.” [80] From the aforegoing, it must be accepted that supervening impossibility is a stringent defence. Herein, it must be read against the carrier`s strict liability under the Praetor`s Edict -_nautis, cauponibus et stabulariis._ Additionally, the courts have made a distinction between mere difficulties in performance and an actual impossibility. And in all this, the onus lies on defendant to satisfy the requirements of supervening impossibility. [81] Returning to how the defendant sought to offset the onus concerned, I make the following observations. Defendant led evidence to demonstrate its institutional proficiency as a provider of security services and carrier of high-value consignments. The capability of the carrier in that context was a fact also considered by the court in _Independence Mining_. Mr Phiri, defendant`s Operations Manager gave evidence to that effect. He also recounted the efficacy defendant`s personnel as seasoned and well-trained CIT operatives. Both Messrs Phiri and his subordinate Mukazi outlined the nature of training as well as weaponry, communication devices and vehicles deployed to defend bullion during conveyance. [ 82] The two witnesses, also set out the procedures and controls before, during and after bullion runs. They both related the challenges associated with plaintiff`s contract. These were documented in Blessed Dube`s letter of recommendations dated 9 November 2020, as well as the 2 reports dated 7 and 10 October 2022. It was accepted by the 2 defence witnesses (and confirmed by Mr Makoni, plaintiff`s Chief Security Officer) that the contract to transport bullion was one fraught with the risk of armed robberies. This being an observation made in _Independence Mining_ , regarding, coincidentally, the same consignor, product, and locality. [83] As observed rather stoically by Mr. Mukazi, danger resides wherever firearms are present. The defendant did not accept a pliable assignment in which its employees would be fully insulated against the risk of harm from gunfire. It was a difficult task they had set themselves to perform-for reward. But despite their menace, robbers were not invincible nor robberies invariably successful. Mr. Phiri the defendant`s Operations Manager stated with conviction that under appropriate arrangements, prevention of loss through robberies was entirely possible. So too did Mr Mukazi boldly declare that had the crew utilised an armoured van on the day, they could have foiled the robbery. [84] The testimony of defendant`s 2 security men was subjected to a stringent test via tenacious cross-examination. Whilst the 2 did not (they could not) come out unscathed, I am satisfied that they succeeded in assuring the court that defendant was a fit for purpose provider of CIT services. That image aligns with Mr Makoni-the decorated security expert with an illustrious career per _Mpofu_ – and his decision to enlist the services of defendant as a provider of superior security services. [85] I now come to the contentious part of the testimony. The robbery itself. This being the event which tested defendant`s very proficiency attested to earlier by Messrs Mukazi and Phiri. For purposes of ascertaining the veracity of the plea of _vis major,_ I will focus on the eyewitness testimony ahead of the subsequent written reports. This evidence is important in determining the nature of a robbery as a _vis major_. It points to a particular standard-whose parameters must be ascertained -to enable the object assessment of the nature of the threat at Magaya`s Wall on 4 October 2022, as well as the competency of defendant`s response to such threat. How then on the evidence placed before me, do I distil such standard? [86] As recorded, evidence was led from Mr Mukazi, the crew commander who rode in one of the vehicles in the bullion run convoy. Mr Mukazi was an eye witness to the robbery and faced the outrage of the robbers. A humble security operative of supervisor level, Mr Mukazi did not boast of the expertise and executive status of his senior co-witnesses-Messrs Makoni and Phiri. The witness exuded the calm disposition of a seasoned operative as he testified. [87] This modesty manifested in his testimony which had to be extricated by further probing in chief and under cross examination. He appeared diffident and imprecise on a number of occasions. He did not, for instance indicate first hand whether the robber who attacked him struck the left or right knee. Or which side of the road as they proceeded to Bulawayo the Magaya wall lay. He professed ignorance of the How Mine run when Mr Phiri accepted that about 13 employees of defendant were notified of the impending run on 3 October 2022.His testimony lacked detail and appeared rather disconnected at times. [88] For example, he was unable to relate the dress or other characteristics of the two robbers who approached his vehicle from close quarters. He stated at one point that it would have taken the defendant`s Bulawayo based reaction team 2 minutes to (travel a distance of 14km) and reach the scene. These blemishes aside, the witness did not strike me as a habitual fibber. On several occasions, he made telling concessions which a natural fibber would have evaded. He conceded that his driver was so overwhelmed by panic that he failed to trigger the panic button a right by the steering column next to where his hands rested. [89] He admitted that his mobile phone carried no credit and he had to beep the control room. Similarly, he condemned the decision by his colleagues in the lead car to high-tail away from the scene -never to return until it was all over. I believe I can safely rely on his first-hand account of what transpired during the robbery. This critical aspect of this witness`s testimony forms part of the key common cause facts in this matter. Defendant, as a carrier, was intercepted by armed robbers. Unlike the _Independence Mining_ case, herein the picture was painted much more vividly. [90] The robbers, as testified by Mr Mukazi, and to a large extent, by Mr Makoni, demonstrated not just meticulous planning, but execution and expertise. Fifteen or so men swarmed from the surrounds to attack the convoy. When their lair was raided by CID officers, evidence of their determination and daring was found-including sticks of dynamite. On the same point, I found no major cause for concern in the testimony of both Mr Makoni and Mr Phiri. These witnesses, as noted, were senior security executives who by and large gave their evidence well. The issue herein is not so much about what transpired at the robbery scene, but the witnesses` interpretation of various aspects of the event. [91] That the 15 or so robbers were variously armed is not in dispute. Nor that their weapons included AK 47 assault rifles. The significance of the threat was acknowledged by Mr Makoni himself who swiftly retreated from the contact or kill zone and only pursued the fleeing robbers after assessing the situation. Defendant`s position herein is that the event overwhelmed its employees and constituted superior force. [92] As noted, 2 eye-witnesses and one post incident reviewer testified herein. A number of factors emerge from this witness mix. The eye-witnesses were also immersed in the broil of robbery. Both faced the threat of death as guns and bullets were either pointed or discharged at them. The two were mercifully spared the tragic fate of the _Independence Mining_ guards who were brutally shot dead at the scene. Mr Mukazi himself admitted being nearly petrified with fear. [93] Unsurprisingly, the two experts` evidence was not marked by exactitude. None of the two could, for example, declare with certainty how many robbers wielded AK 47 rifles. Nor for that matter, whether they could tell if any of those dreaded contraptions of death were actually fired. They related no particulars of the robbers apart from their number. Nothing was stated about dress, height, weight, or some other unusual characteristics -apart from a brief reference by Mr. Mukazi to the language spoken. [94] I am not certain as to why defendant did not call the evidence of guards in the lead vehicle. Their testimony regarding their interaction with the GD6 would have been vital. When did they first observe it, how far was it and how exactly it moved to block them would have aided the assessment of the reaction to the robbery. But I accept, that the robbery was a tense encounter. [95] Unsurprisingly perhaps, the two witnesses immediately defaulted to divergent opinions on whether the incident amounted to superior force or not. Mr Makoni argued that the misfortune could have been reversed. He in fact took steps to try and do so. Never mind for now, the suggestions of collusion which I will deal with shortly. In his testimony, the witness was contemptuous of the response by the defendant`s guards` response to the robbery. Mr Mukazi on the other hand testified that his team was overwhelmed by a superior force. [96] Now the court is faced with two participants whose views on the severity of the threat are materially disparate. Why? Because firstly, intrinsic in their evidence was an opinion. Secondly, the opinion was based on personal perception of the unfolding scene. Thirdly, and indisputably so, the question of interest or partisanship played a role in influencing the position adopted. Mr Phiri`s view was similarly parochial as it also reposed on the convenience of the reviewer`s armchair. [97] In the absence of an independent expert or scientific evidence, can the court evaluate the veracity of these divergent positions? Including defendant`s contention that engaging the robbers was avoided in a bid to preserve life? I again turn to the evidence itself. And in doing so, will also revert firstly to the checklist in _Firstel Cellular_ , secondly to the contractual principles applying to allegations of collusion -or frustration and thirdly, the evidentiary principles dealing with conjecture or inferences. [ 98] I reiterate the _Firstel Cellular_ considerations being (i) the nature of the contract, (ii) the relationship between the parties, (iii) the circumstances of the case, (iv) the nature of the alleged impossibility and (v) whether the impossibility is objective and absolute in contradistinction to one that is merely subjective or relative. The parties` relationship demanded mutual trust and collaboration in approaching performance of the contract. Both Messrs Makoni and his counterpart Phiri adverted in their testimony, to the engagement model regarding arrangements for bullion runs as well as general security issues. The greatest set-back herein is that the parties did not reduce their contract to writing. [99] Nonetheless, I must take due regard of the fact that officially, both parties were alive to the risks confronting bullion runs, not least of which was the compromise of security arrangements. I must relate to a paradox emerging from the law and facts herein from that aspect. Defendant as a public carrier was obliged, under the Praetor`s Edict`s strict liability, to deliver the consignment intact. It therefore assumed risk when it accepted the commission to ferry plaintiff`s bullion under security arrangement which by defendant’s standards, were less than adequate. [100] But the law extended a reprieve to the defendant in the event that loss of consignment was occasioned by superior force. The resultant anomaly however being that the same insufficient arrangements were, according to the evidence given and arguments raised by defendant; - contributory to the _causus fortuitous_. Does the question not arise then that defendant walked into a situation which it knew very well could arise? What then is the effect of this possible conclusion on the defence of _vis maj_ or tendered herein? In its plea, defendant averred that the event was unforeseeable. In evidence, its witnesses accepted that robberies formed a well-known risk. [101] On the same point I recognise the mutual suspicion which coloured the pleadings, evidence and conclusions reached by either side to the dispute. This aspect is critical to the disposal of the present dispute because it aggravated perceptions of inadequate security arrangements. Plaintiff took the firm view that the tepid acquiescence of defendant`s crew in yielding the bullion to the robbers amounted to collusion. Not to be outdone, defendant went so far as alleging that Mr Makoni’s actions at the scene denoted the false bravado of one in the throes of stage-managed gallantry. It also liberally accused plaintiff`s personnel of having relayed vital information to robbers. [102] In reflecting over these matters, I recognise that the defendant premised a significant aspect of its defence on the alleged collusion or compromise by plaintiff. In effect, defendant introduced the contractual principle of frustration by one party which impedes the performance of contractual obligations by the other. In raising these allegations, each party thus at worst, sought to drag the court into conjecture and at best invited it to draw inferences. Conjuncture invites open-ended inquiries into the far-fetched world of rumours, suspicions and speculation. Issues which-in an inquiry of this nature- are neither necessary, useful nor scientific. [103] I will in that regard apply 2 tests in dealing with the allegations; firstly, did the defendant meet the requirements- in seeking to prove collusion- set out in the authorities such as _Scott_ _& Anor v Poupard & Anor_ 1971 (2) SA 373 and more recently, by the Supreme Court in _Zimbabwe Power Company v Intratek Zimbabwe_ SC 127-23? [104] And secondly, what view emerges from the inferences if one applies the lens used in decisions such as _British American Tobacco Zimbabwe v Chibaya_ SC 30-19,_Big Valley Masters v Shi Jinwu_ SC 24-21, and _Mangoma v The State_ 2020 (1) ZLR 531(S) where the court-citing the classic authority of _R v Blom_ 1939 A.D. 188 -held as follows at 538 G- H; - “There are two cardinal rules of logic governing the use of such evidence in criminal proceedings. They are that: (i)The inference sought to be drawn must be consistent with all the proved facts; and (ii) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.” [105] I have no hesitation in concluding that no evidence was furnished to fulfil the requirements of frustration5 namely (i)non fulfilment of a condition, (ii) breach by defendant of its duty in order to frustrate contractual fulfilment and (iii) a causal link between the non-fulfilment and the defendant’s intentional frustration of the fulfilment of the condition. Nor can one draw the inference averred by either side that plaintiff or defendant colluded with the robbers. [106] I relate to the caution expressed in _Independence Mining_ on the issue of speculation and suppositions as follows at page 232-233; - “It would appear from the particulars of the negligence alleged that the plaintiff ‘s contention is that, had the defendant taken certain measures as a prudent security carriage service provider, the robbery could have been avoided and/or the attack could have been successfully resisted and the loss of gold bullion avoided. The onus to establish this is on the plaintiff. The plaintiff did no more than list a number of possible ways the security could have been enhanced. There was no evidence that had the security been enhanced in the manner suggested in the particulars of negligence the bullion would not have been lost. For example, it is suggested that had different routes been used whenever gold bullion was collected the robbery might have been avoided. There is no evidence that more than one road connects Bulawayo to How Mine. It was also suggested that had an unmarked vehicle been used the robbery might have been avoided. There is no evidence on how the vehicle carrying the bullion was identified. Was it an inside job or not? There is no evidence. It is also suggested that had more armed guards been used to guard the bullion the loss might have been prevented. There is no suggestion how many armed guards should have been used to prevent the robbery and whether that number was within what was agreed as between the parties in terms of the agreement. _In brief, there is no evidence to establish, on the balance of probabilities, that had measures suggested by the plaintiff been implemented the loss of bullion would have been prevented_. However, the most telling point against the plaintiff on this issue is that it was fully aware of the security arrangements involved in the transportation of the bullion and at the very least tacitly accepted that arrangement as adequate. On that basis the facility provided was in terms of the agreement between the parties. I have therefore come to the conclusion that the plaintiff has not established on a balance of probability that the defendant was negligent and that that negligence was the cause of the loss of the gold bullion.” [ underlined for emphasis] [107] The above passage ought not confuse the reader. Although it points to the plaintiff in that matter and related to the alternative claim under the aquilian action, the court`s considerations may be applied to the defendant`s plea of supervening impossibility. As I observed earlier, the nature of the matter before us requires that we borrow from the allegations of negligence as part of ascertaining the significance of the threat. Because even in pleading supervening impossibility, the defendant averred collusion or frustration as a fact which exacerbated the menace of robbery. It concomitantly weakened defendant`s own capacity to repel the attack. But that defence, reading from the above excerpt, is full of suppositions which the proffered evidence could not support. [108] In the same vein, the defence must be considered against telling inroads into the defendant`s conduct at the scene. These included failure to trigger alarms- if not by the bullion carrying crew- at least by the lead van`s guards. There was the vanishing act by the same crew and its inexplicable failure to summon both the police and defendant`s reaction teams. One cannot discount the comparative bravery of Mr Makoni. It is important again, never to lose sight of the fact that defendant as a carrier, was burdened with strict liability. In that respect, the tacit acceptance of risk which it sought to impute on plaintiff fell squarely on its shoulders. [109] Defendant set out to carry valuable cargo with a “soft skin”6 plated vans. It was well-aware of the limitations of its fire power and non-implementation of proposed changes. It had not extracted specific disclaimers (although of course, the authorities place a limit on the effectiveness of such (see _Cotton Marketing Board v National Railways of Zimbabwe_ 1988 (1) ZLR 304 (S)). And above all else, it had clearly and commendably ordered its personnel to preserve life. [110] On that last point, one would have expected defendant in pleadings and argument to dwell further on the aspect. That decision was crucial to the evaluation of the guards’ response during and after the robbery. The question being; - where a carrier sets out on a dangerous enterprise involving the prospect of violent depredations, does it not in fact assume the risk of loss where it restrains its personnel from boldly engaging the despoilers? And does that risk not escalate where there are known security inadequacies? Including deployment of a soft skin van which the staid Mr Mukazi condemned as clearly unfit for purpose? [111] And all because Mr Phiri considered it off the menu? No rational mind can contest the defendant`s instruction to its guards that they avoid putting their lives in danger. The tragic loss of the two security men in _Independence Mining_ -Sergeant Samuel Sibanda and his colleague Sydney Mudzingwa- on 30 October 1989 on the same route`s bullion run should be a painful reminder. The need to preserve life becomes inseparable from the underlying measures to protect their cargo during consignment. [112] Which invites me to comment in passing on the less than professional manner in which both sides approached the bullion runs on Old Tuli Road. The parties operated on an oral contract, nursed problem areas and despite being alive to the risk of robberies, elected not to deploy the measures subsequently proposed by Mr Phiri-made more urgent by the wisdom of hindsight and chagrin. [113] Concluding this point I opine as follows; - firstly, the evidence led by defendant in seeking to prove the existence of _vis major_ comprised in the main, of opinions expressed by its officers. These being officers whose objectivity was impaired by the intensity of the event and or interest. Secondly, the evidence was met by that from plaintiff which proffered a contrary perspective. Thirdly, these two versions were neither balanced nor offset by an independent expert who assisted the court with appropriate scientific, ethical and industry standards to apply in evaluating defendant`s conduct at the scene. [114] Fourthly, defendant`s defence of _vis major_ relied quite significantly on the averments of collusion or frustration by plaintiff. With the collapse of this pillar, the defence itself became tenuous. Applying the standard of proof in civil cases prescribed in authorities such as _Matambo_ v _Mutsago_ 1996 (1) ZLR 101 (S) 103D –E, _British American Tobacco Zimbabwe v Chibaya_ (supra) and others, I reach the conclusion that defendant failed to discharge the requisite onus of proving the defence of _vis major_. Plaintiff succeeds in the main. [115] The question of quantum was not seriously contested and the claim must be allowed as pleaded. But I must address, before concluding, the question of subrogation raised as a point of law by defendant in its closing submissions. It was submitted that on the strength of _Tsodzai vs Mageza_ HH193-11, plaintiff breached the rule that no man should be paid twice for a single event of loss. Plaintiff had failed, argued Mr _Chatereza_ , to disclose in its pleadings that it was also pursuing a claim against its insurers -Old Mutual -over loss of its gold bullion. [116] In _Tsodzai vs Mageza_ , the court dismissed plaintiff`s claim on the basis of subrogation. Mr _Chatereza_ prayed that a similar fate be visited on the plaintiff`s claim. Counsel drew inspiration, in adopting that position, from the following dictum by BERE J (as he then was) at page 5 in _Tsodzai vs Mageza; -_ “I do make a firm observation and deduction from precedent that where the insured takes the initiative to institute action against an offending party like in the case before me, _the pleadings must leave no one in any doubt that the insured is taking action for the benefit of his insurer_. Anything short of that would lead to the inevitable conclusion that he intends to have a double benefit over the same loss. _The court must not be left to speculate as to whether the plaintiff may or may not hand over the benefits of his litigation to the insurer_.” [ Underlined for emphasis] [117] Mr _Mpofu_ `s response to this point of law was mordacious. On the authority of _Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd_ SC 24- 18, he contended that the defendant had shifted its causa to one neither pleaded nor supported in evidence. Secondly, counsel argued that there was no basis to support the conclusion that plaintiff had been compensated for its loss by the insurer. [118 ] In any event, as his third point, counsel submitted that the correct position at law was articulated in decisions such as _AMI Zimbabwe (Pvt) Ltd v Casalee Holdings (Successors) (Pvt) Ltd_ 1997 (2) ZLR 77 (S), _Minister of Defence & Anor v Jackson_ 1991 (4) SA 23 (ZS) and _De Klerk & Ors v Makvura_ 1992 (1) ZLR 73 (H) where CHAMABAKARE J set out the facts and law on subrogation and the plea of _res inter alios actae 7_ __ in that matter as follows at pages 74-75; - “On a date not clear from the evidence the insurers under the doctrine of subrogation issued out a summons against the defendant in the name of the plaintiff in which it had paid out to the first plaintiff. Judgment in that amount was granted on 6 June 1989. It appears that an attachment was made but failed to realise any assets…………. Mr Pycroft admitted the above facts as correct but _argued that under the plea of_ __res inter alios actae__ _and the doctrine of subrogation the first plaintiff was entitled to recover damages in spite of the fact that his insurers paid him. The general principle of_ __res inter alios actae__ _is that a defendant cannot set up in extinction or mitigation of his own liability the fact that the plaintiff has been recouped or is entitled to be recouped either wholly or in part, by a third party in terms of a contract of insurance_ : _Ackerman v Loubser_ 1918 OPD 31; _Shearman v Folland_ [1950] 2 KB 43; [1950] 1 All ER 976. The rationale is that a plaintiff does not receive the money as a result of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract, which is the cause for receiving it. The position here is different. When the first plaintiff received money from his insurers matters ought to have ended there with them. He should not have subrogated his rights and equities to them when he wished to sue the defendant for a larger amount. The principles apply where the amount under an insurance company is paid to the plaintiff. In that case the defendant cannot claim a reduction in damages simply because the plaintiff was paid as this was tantamount to making the defendant benefit from an insurance where he did not pay any premiums.” [underlined for emphasis] [119] I may dispose of the point by noting that both _Tsodzai vs Mageza_ and _De Klerk & Ors v Makvura _involved clear cases of subrogation-where the insurance company was involved as a surrogate litigant to recover under an insurance arrangement. These facts were placed or available to the court in those 2 decisions. Such is not the instance herein. I am thus inclined to dismiss the point as inapplicable. The plaintiff may proceed to access the relief prayed for-but only to the extent that it will fare against the final hurdle; - the counter claim. [120] The matter in contention is not the quantum but the currency of the obligation represented by the outstanding invoice in the sum of US$ 54,617.18. That bills were raised and settled in local currency was not disputed. Defendant however claimed that from Tefura its accountant that from June 2020, fees were charged exclusively in USD. A letter was addressed on 20 June 2020 to plaintiff to that effect. This aspect was reiterated by Mr. _Chatereza_ in his closing submissions. I turn to the said letter of 20 June 2020 (sent under cover of an email dated 15 July 2020) and refer to excerpts therefrom; - “The operating environment continues to deteriorate rendering pricing in Zimbabwe Dollars very difficult and unpredictable. Indications are the trend will continue in the near future. Given that, we have resolved to price our service in USD, _which will be payable in either USD or ZWL at the prevailing exchange rate on the day of payment_ ” [121] The underlined part is clear. It also accords with the challenge by plaintiff for defendant to produce confirmation that any bills were settled in USD.Mr Tefura, despite exhibiting the precision for which his profession is renowned, was unable to discharge a simple task-place the accounts of plaintiff`s indebtedness before the court. In that respect, I am satisfied that the service, though billed in USD was payable in the local currency alternative. The claim was for an award exclusively in USD. On that basis, the counter-claim falls. DISPOSITION [122] On costs, these should, per tradition, follow the plaintiff as the successful party. Whilst costs on any attorney-client scale were prayed for in the summons, same were not persisted with. I also carry the view that such cannot succeed. The matter was a fiercely disputed legal duel with a number of complexities which necessitated the subsequent contestations. In the result, it is thus ordered as follows; - 1. Plaintiff succeeds in its main claim against defendant. 2. Defendant`s claim in reconvention be and is hereby dismissed. 3. Defendant is ordered to pay to plaintiff the sum of US$675, 000,00 and interest thereon at the rate of 5% per annum with effect from 4 October 2022 up to date of payment in full. 4. The defendant to pay the costs if suit on the ordinary scale. _Scanlen and Holderness_ -plaintiff`s legal practitioners _Dube, Manikai and Hwacha_ -defendant`s legal practitioners **[CHILIMBE J_____30/6/25]** 1 See _Lillicrap, Wassenaar And Partners v Pilkington Brothers_ (SA) (PTY) LTD 1985 (1) SA 475 (A) cited with approval in _Blakey Investments (Pty) Ltd Versus Delta Beverages (Pvt) Ltd & 2 Ors _HH 388-23 2 The strict liability placed under Roman Law, on sailors, innkeepers and stable keepers for the wellbeing of customer goods entrusted unto them during passage or lodging. 3 On application by and per consent of the parties, the respective bundles were admitted in evidence, to be subsequently referenced by their particulars. 4 Dönges The Liability for Safe Carriage of Goods in Roman-Dutch Law 5 See _Zimbabwe Power Company v Intratek Zimbabwe (supra)_ 6 A term used in Independence Mining to denote an unarmoured van. 7 _A common law doctrine in the specie of privity of contract to the effect that the rights of a person who is not a party to the contract cannot be adversely affected_ see also _Rennie No v Gordon And Another NNo_ 1988 (1) Sa 1 (A)