A Bulawayo businessman, Canaan Mutepfa, the owner of Andy’s Service Station, is expected in court next week defending a $450 000 lawsuit filed against him by a man he knocked down with a vehicle six years ago.
The man allegedly lost 10 centimetres of bone from the accident. The lawsuit HC1660/07 was filed in 2007, but the High Court has set down the matter for trial next week, between January 11 and 14.
Plaintiff, Munehondo Musekiwa, was suing for Z$5 million when he first filed his papers in 2007 but the figure has since been revised to an equivalent of US$450 000, a quantum calculated by actuaries at the National University of Science and Technology.
He is being represented by Thamsanqa Khumalo of Khumalo and Partners.
Musekiwa claims on January 16 2006, he was riding a Suzuki motorcycle along Main Street in Bulawayo when he was knocked down by Mutepfa who was driving a Mazda B1800 and coming from another street.
He said the accident was caused by negligence on the part of Mutepfa who failed to give him right of way.
“He (Mutepfa) drove the vehicle at a speed which was excessive in the circumstances and failed to keep his vehicle under proper control.
The defendant admitted his guilt and paid a deposit fine of Z$25 000 confirmed receipt number Z69JZ630568A and this was done at Bulawayo Traffic,” he declared.
Musekiwa said as a result of the accident he fractured his left femur and had compound dislocations on his left knee.
“Plaintiff has suffered permanent injuries and is unable to walk at all without the aid of crutches and needs a vehicle to mitigate the effects of the permanent injuries,” reads part of Musekiwa’s affidavit.
“The permanent injuries he suffered measured 45%. He is still to visit the doctor for removal of the plate put to support the fractured bone on the left femur on his left leg at the time of these pleadings,” declared Musekiwa then.
He is asking the court to award him $450 000 in damages.
“Z$10 billion for injuries, shock, loss of personal amenities, permanent disability, pain and suffering. Z$500 million, being special damages for medical expenses, past present and future. Despite demand, defendant has failed or neglected or refused to pay the damages,” read the summons.
Musekiwa’s lawyers have also demanded interest at the prescribed rate from the date of summons to date of full payment and also the cost of suit on an attorney and client scale.
Mutepfa in his plea filed by his lawyers, Coghlan and Welsh Legal Practitioners has however denied responsibility for the accident and apportioned blame to Musekiwa.
“This is denied and the defendant avers that the accident was caused solely by the negligence of the plaintiff who was negligent in one or more of the following ways: cycling at extremely excessive speed in the circumstances failing to keep a proper look out and failing to stop or act reasonably when an accident was imminent,’ said Mutepfa in his opposing affidavit.
Mutepfa was initially being represented by Nicholas Mathonsi who has since been elevated and is now a judge sitting at Bulawayo High Court.
The same law firm also acted on behalf of Mater Dei to recover their outstanding balance in bills for Musekiwa’s medication as a result of the accident.
He said in the event the court found him to blame for the accident there was contributory negligence on the part of Musekiwa.
“The blame should be apportioned between the parties in accordance with the provisions of the law Reform (contributory negligence) Act,” Mutepfa’s lawyers argued.
“The defendant is not aware of the injuries sustained by the plaintiff, does not admit same and puts the plaintiff to the proof thereof including medical report.
“The defendant avers that he paid the admission of guilt fine merely to avoid a lengthy trial and expenses in legal fees. He prays that the plaintiff’s claim be dismissed with costs and judgment entered in his favour.”