By Mashudu Netsianda
The High Court has dismissed an application by Bravo Tours Bus Company seeking an order directing a Zambian accident victim suing the company and its driver for US$35 000 to pay $15 000 security costs to the Registrar of the High Court.
Mr George Kakoma is suing the bus company for US$35 000 after losing four fingers following an accident that killed three people on the spot.
The accident occurred on November 28, 2016 shortly after 1AM at the 218km peg along the Bulawayo-Victoria Falls road.
The driver, Mr Brian Mavhima, lost control and the bus veered off the road.
It overturned resulting in the death of three passengers. Several other people were injured in the accident.
The ruling by Bulawayo High Court judge Justice Christopher Dube-Banda follows an application by Bravo Tours citing Mr George Kakoma as respondent.
The bus company wanted an order directing Mr Kakoma to pay $15 000 as security for costs for the case before it is set down for trial.
Mr Kakoma through his lawyers, Legal Resources Foundation, is suing Bravo Tours and Mr Mavhima for US$35 000 being damages for pain and suffering, permanent disfigurement, trauma and future medical expenses.
Mr Kakoma said due to the injuries he suffered, four of his fingers on the left hand were amputated at Livingstone Hospital in Zambia and he was now unable to work.
In papers before the court, Mr Kakoma said he suffered permanent disability.
He accused the driver of negligence and sought an order directing Bravo Bus Company to pay him US$35 000 being damages for pain and suffering, permanent disfigurement, trauma and future medical expenses.
Mr Kakoma said the defendants were negligent in that even when they were aware that the vehicle was defective and unroadworthy, they went on to load and transport passengers from Victoria Falls to Bulawayo.
On examination, Mr Kakoma’s injury was rated at 55 percent functional disability.
The two parties have since filed a joint pre-trial conference memorandum. The two parties were however disagreeing on security costs.
In dismissing Bravo Tours’ application, Justice Dube-Banda said the bus company failed to discharge the onus showing that it was entitled to the relief sought.
“I have considered all the facts relating to this matter, and I am of the view that applicant has not discharged the onus of showing that he is entitled to the relief sought. In the result, the application must fail and accordingly dismissed with no order of costs,” ruled the judge.
“My view is that by not demanding security of costs, immediately upon being served with summons, applicant lulled the respondent to believe that no security of costs shall be required in this matter.”
Justice Dube-Banda said by turning around and demanding costs when the matter is awaiting set down date was an act of injustice to Mr Kakoma.
“I take into account that the applicant is a company that owns buses and surely, in terms of financial muscle, it is on a different footing compared to the respondent,” he said.
Bravo argued that it would suffer great prejudice if the court were to exercise its discretion and not grant an order of security costs.
Bravo’s lawyers said Mr Kakoma was using his inability to work as an excuse for not providing security of costs and were also arguing that the injuries sustained in the accident were an issue that is in dispute hence it was before the court. The Chronicle