News / National
Prominent lawyer's $25 000 fruit juice lawsuit thrown out of court
16 Mar 2018 at 02:21hrs | Views
THE High Court yesterday dismissed an application by prominent Bulawayo lawyer Mr Ndabezinhle Mazibuko who was suing a city supermarket for $25 000 after he bought a box of fruit juice which was allegedly contaminated with a "nauseating and poisonous" foreign body.
Mr Mazibuko, through his lawyers, Calderwood, Bryce Hendrie and Partners, filed summons at the Bulawayo High Court in 2016 citing Broadway Spar Supermarket as the defendant after alleging that his health was compromised as a result of drinking the fruit juice.
Bulawayo High Court judge Justice Nokuthula Moyo ruled that there was no medical evidence to support Mr Mazibuko's claim.
"The plaintiff (Mr Mazibuko) did not produce any medical evidence to support his claim. It is trite that to sustain a claim for damages, which are medically motivated, a medical report should be submitted as medicine is an area of expertise and only a doctor can confirm an illness, its extent and effects on a patient. However, in this case no evidence was adduced and neither was the sum of $25 000 shown to be the appropriate remedy in terms of the quantum of damages payable," she said.
Justice Moyo said Mr Mazibuko's case was baseless and lacked merit.
"Clearly in this matter, no medical evidence was tabled by the plaintiff and consequently no medical facts exist for the formulation of a basis for a claim for damages," she said.
The judge said Mr Mazibuko failed to sustain the amount of $25 000 as damages suffered.
"Therefore, my conclusion is that the plaintiff failed to prove any injury that leads to compensation as no basis whatsoever for the claim was laid in terms of medical evidence. Accordingly, the plaintiff's claim is dismissed with costs," ruled Justice Moyo.
In papers before the court, Mr Mazibuko demanded $25 000 from the supermarket being general damages for psychological trauma, physical pain and loss of expectation of life he allegedly suffered as a result of alleged gross negligence when he unsuspectingly consumed the beverage.
"On or about the end of June to the beginning of July 2014, I purchased several varieties of one litre boxes of Spar branded fruit juice from Broadway Spar Supermarket. Sometime towards the end of July, I opened and poured into a glass half the contents of one of the mixed berry fruit juice and returned the other half to the refrigerator," he said.
Mr Mazibuko said while drinking the remaining half of the juice from the box, he felt something was not right and spat the substance back into the box packaging.
The lawyer said he became suspicious and on investigating to ascertain the nature of the substance, he discovered a disgusting, pitch-black and greasy "poisonous" substance.
The object in the juice, said Mr Mazibuko, resembled a piece of a decomposed skin of a mammal with visible traces of meat tissue.
He said the defendant was grossly negligent and breached the duty of care owed to the customer by selling a mixed berry fruit juice containing a harmful substance.
The lawyer said he suffered physical pain and discomfort after developing a stomach problem which arose from consuming the contaminated drink.
Mr Mazibuko, a martial arts enthusiast, said he had to cancel a trip to Harare for a week-long karate seminar with his overseas based instructor to seek medical attention.
Broadway Spar, through its lawyers, Dube-Banda, Nzarayapenga and Partners, denied negligence and argued that they were mere retailers who received and sold drinks in sealed packaging.
"The defendant is a mere retailer who has no specialised or practical means, be it expertise or apparatus of finding out the condition and state of the variety of products which it received in sealed packaging and sold without further inspection apart from the shelf life," said the defendant's lawyers.
The supermarket queried how the quantified damages of $25 000 were arrived at.
"Even if plaintiff may have suffered damages, which is denied, such would not have been to an extent of $25 000. Plaintiff has failed to quantify such damages and is put to proof thereof," said the Broadway Spar lawyers.
Mr Mazibuko, through his lawyers, Calderwood, Bryce Hendrie and Partners, filed summons at the Bulawayo High Court in 2016 citing Broadway Spar Supermarket as the defendant after alleging that his health was compromised as a result of drinking the fruit juice.
Bulawayo High Court judge Justice Nokuthula Moyo ruled that there was no medical evidence to support Mr Mazibuko's claim.
"The plaintiff (Mr Mazibuko) did not produce any medical evidence to support his claim. It is trite that to sustain a claim for damages, which are medically motivated, a medical report should be submitted as medicine is an area of expertise and only a doctor can confirm an illness, its extent and effects on a patient. However, in this case no evidence was adduced and neither was the sum of $25 000 shown to be the appropriate remedy in terms of the quantum of damages payable," she said.
Justice Moyo said Mr Mazibuko's case was baseless and lacked merit.
"Clearly in this matter, no medical evidence was tabled by the plaintiff and consequently no medical facts exist for the formulation of a basis for a claim for damages," she said.
The judge said Mr Mazibuko failed to sustain the amount of $25 000 as damages suffered.
"Therefore, my conclusion is that the plaintiff failed to prove any injury that leads to compensation as no basis whatsoever for the claim was laid in terms of medical evidence. Accordingly, the plaintiff's claim is dismissed with costs," ruled Justice Moyo.
In papers before the court, Mr Mazibuko demanded $25 000 from the supermarket being general damages for psychological trauma, physical pain and loss of expectation of life he allegedly suffered as a result of alleged gross negligence when he unsuspectingly consumed the beverage.
"On or about the end of June to the beginning of July 2014, I purchased several varieties of one litre boxes of Spar branded fruit juice from Broadway Spar Supermarket. Sometime towards the end of July, I opened and poured into a glass half the contents of one of the mixed berry fruit juice and returned the other half to the refrigerator," he said.
The lawyer said he became suspicious and on investigating to ascertain the nature of the substance, he discovered a disgusting, pitch-black and greasy "poisonous" substance.
The object in the juice, said Mr Mazibuko, resembled a piece of a decomposed skin of a mammal with visible traces of meat tissue.
He said the defendant was grossly negligent and breached the duty of care owed to the customer by selling a mixed berry fruit juice containing a harmful substance.
The lawyer said he suffered physical pain and discomfort after developing a stomach problem which arose from consuming the contaminated drink.
Mr Mazibuko, a martial arts enthusiast, said he had to cancel a trip to Harare for a week-long karate seminar with his overseas based instructor to seek medical attention.
Broadway Spar, through its lawyers, Dube-Banda, Nzarayapenga and Partners, denied negligence and argued that they were mere retailers who received and sold drinks in sealed packaging.
"The defendant is a mere retailer who has no specialised or practical means, be it expertise or apparatus of finding out the condition and state of the variety of products which it received in sealed packaging and sold without further inspection apart from the shelf life," said the defendant's lawyers.
The supermarket queried how the quantified damages of $25 000 were arrived at.
"Even if plaintiff may have suffered damages, which is denied, such would not have been to an extent of $25 000. Plaintiff has failed to quantify such damages and is put to proof thereof," said the Broadway Spar lawyers.
Source - chronicle
