adminMashudu Netsianda Senior Court Reporter
THE Bulawayo High Court has ruled in favour of Beitbridge Rural District Council in a lawsuit in which the local authority was being sued for more than $180,000 by the Cold Storage Company for negligence after money the parastatal had deposited to the council was stolen during a burglary. Three years ago, CSC deposited $187,286 into council’s bank account for purposes of buying cattle at cattle sale auctions organised by the local authority.
The money was lost during an armed robbery and a police report was made, but nothing was recovered.
According to court papers, Beitbridge RDC was cited as the defendant while CSC was the plaintiff. In its claim, CSC accused council of negligence.
In his ruling, Justice Andrew Mutema dismissed CSC’s claim, saying there was no proof of negligence on the part of Beitbridge RDC as it had secured its premises prior to the burglary.
“In casu, there was a robbery at defendant’s offices that resulted in the loss of plaintiff’s money which was kept in a locked Chubb safe which was locked up in a strong room in a locked office with a security guard guarding the premises,” said Justice Mutema.
He said there was no basis of holding Beitbridge RDC liable for the robbery.
“Even the negligence that was pleaded in this case was not proven by the plaintiff. The loss should lie where it falls however unfortunate it may be. In the result, the plaintiff’s claim be and is hereby dismissed with costs,” added Justice Mutema.
On August 11, 2011, CSC approached Beitbridge RDC for assistance in organising cattle sales in Beitbridge District. The parties then agreed that plaintiff would transfer money for the purchase of the cattle into defendant’s bank account.
On August, 22, the same year, CSC transferred $300,000 into Beitbridge RDC’s bank account. The local authority then began withdrawing the money in batches and the cash movement from its offices to the sale points was under armed police escort.
Of the $300,000, a sum of $62,714,20 including levies and bank charges was used. $50, 000 was not withdrawn, effectively leaving $187,286 in the council’s account after the conclusion of the cattle purchases.
The money was supposed to be transferred back into CSC’s account.
Nqobizitha Ndlovu of Cheda and Partners, CSC’s lawyer, told the court that on August 29, 2011, the RDC’s treasurer advised plaintiff that there had been a burglary at their offices on the previous night and the parastatal’s money was stolen.
“ Defendant refused to accept liability for the loss of plaintiff’s $187, 286 despite its negligence in keeping such a large sum of money overnight in its offices without putting in place arrangements for reasonable and tight security to safeguard the money,” said the lawyer.
Beitbridge RDC through its lawyer, Gift Nyathi of Sansole and Senda Legal Practitioners, denied the alleged negligence and averred that the security system at its premises was adequate.
“The money was secured by armed police escort in transit to defendant’s offices and lodged in a Chubb safe in a strong room in a locked building guarded by a security guard. This was the type of security defendant had depended on since time immemorial,” said Nyathi
In his founding affidavit, Macksen Kasora, CSC’s accountant, said as buyer, plaintiff simply participated in the bidding of the cattle to be bought but all cash handling was done by defendant who pays the sellers.
“Once plaintiff deposits the money with defendant, plaintiff is never in control of the money and where there is surplus at end of the sales defendant refunds it to plaintiff. It was defendant’s employees who would pay the sellers,” he said.
In his evidence, Beitbridge RDC chief executive officer, Albert Mbedzi, confirmed that CSC did deposit $300, 000 into council’s bank account for purposes of buying cattle at cattle sale auctions organised by the local authority.
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