(Cited as a division of Delta
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA & OMERJEE AJA
HARARE, SEPTEMBER 24, 2012 & SEPTEMBER 26, 2013
T Mpofu, for the appellant
B Pesanai, for the respondent
GARWE JA: This is an appeal against the judgment of the High Court sitting at Harare dismissing with costs an application for absolution from the instance.
The respondent, who was plaintiff in the court a quo, issued summons claiming payment of damages in the sum of US$20 051 and costs of suit. The basis of his claim was that he had consumed a contaminated coca-cola beverage and that further inspection of the bottle had revealed “a rusting iron nail and blackish foreign substances.” In his declaration he alleged that the appellant as the manufacturer of the beverage in question owed him and the general public “a duty of care to ensure that the product is safe, clean, health (sic) and fit for human consumption” and that the appellant had breached that duty by producing the contaminated coke. In the alternative the respondent alleged that the appellant had “negligently allowed the production and selling of contaminated coke” which he consumed. In the result he sought damages in the sum mentioned for what he termed “distress and anxiety.”
In its plea before the court a quo, the appellant denied that any harmful foreign particle of any nature was found in the unopened bottle of coke and, in the event that it was, that it was inserted by the appellant before, during, or after the manufacturing process. The appellant further pleaded that its manufacturing process was in line with international standards of quality and that in any event the cleaning, manufacturing and bottling process made it impossible to produce a beverage that contained a nail. In short the appellant denied producing contaminated coca-cola or any negligence in the production of the beverage.