At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

In considering the appellant's claim for general damages, the court a quo found, as a fact, that the appellant will require surgical operations, regular physiotherapy, and medication for the rest of his life. The court also found that he experiences weaknesses of the forearm and arm on the left side and that he will suffer from pain for a very long time.

A report prepared by Professor Kalangu stated that the lower plexus should show good improvement but did not indicate to what extent he was likely to improve. The court was of the view, that, in the absence of evidence from the two doctors who attended to the appellant, the extent of his disability was debatable.

On that basis, the court a quo granted absolution from the instance.

On the question of future medical attention, the court accepted that the appellant will require transport to attend physiotherapy and rehabilitation and that he will require future medical attention. However, the court reached the conclusion that the plaintiff had failed to show how many sessions he would be required to undertake to enable the court to assess the future expenses that he was likely to incur.

On that basis, the court also granted absolution from the instance.

On the question of the replacement value of the motor vehicle, the court a quo came to the conclusion that since delictual damages are calculated as at the time of the delict, the appellant had failed to explain, satisfactorily, the delay between the time of issuance of the summons and the time when quotations were obtained.

In particular, the court was of the view that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

As a result, the court a quo also granted absolution from the instance.

In his grounds of appeal, the appellant has attacked the decision of the court a quo on three bases. These are:

1. That the court a quo erred in failing to consider the evidence placed before it and thereafter to exercise its discretion to make an award for general damages in favour of the appellant.

2. The court a quo erred in failing to consider the evidence placed before it and thereafter in exercising its discretion to make an award for future medical expenses in favour of the appellant.

3. The court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

The appellant seeks an order that paragraph 2 of the order of the court a quo be set aside and that the respondent be ordered to pay;

(a) The sum of US$50,000, being the equivalent of Z$1 billion as at the date of judgment, as general damages together with interest thereon at the rate prevailing in the United States of America from the date of judgment to date of payment in full;

(b) The sum of US$5,000, being future medical expenses together with interest thereon at the rate prevailing in the United States from the date of judgment to the date of payment; and

(c) The sum of US$8,000 being the replacement value of the appellant's motor vehicle.

It is appropriate, at this stage, to consider the approach that has been followed by the Courts in the assessment of damages in general, and special damages in particular.

In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

“…, monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.

There are cases where the assessment by the Court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance.

But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.”

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176H, 187C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C), 655H-656F that:

“'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.…,.'

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages; for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment, and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance…,.”

In, The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT, the learned authors state as follows…,:

“In the case of damages which are capable of exact mathematical computation, such as, for example, medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.”

The remarks made in the authorities cited above no doubt correctly reflect the law on the approach to damages in bodily and fatal injury cases both in this country and South Africa.

The first ground of appeal that falls for determination by this Court is whether the court a quo erred in failing to consider the available evidence, and, thereafter, making an award for general damages in favour of the appellant.

The amount claimed as general damages before the court a quo was the sum of Z$1 billion as at the date of judgment. The Z$1 billion claimed represented damages for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life, and shortened life expectancy.

The court a quo delivered its judgment on 16 April 2009, and, in respect of this particular claim, granted absolution from the instance. The basis for that decision was that the remark by Dr Kalangu, in his report, that, “lower plexus should show good improvement”, was imprecise. The court a quo was of the view that it was not clear to what extent the improvement would affect the degree of disability. Further, although the report alluded to the need for a repeat study after six months, no such examination appears to have been undertaken. In view of the medical opinion that the appellant's condition could improve with rehabilitation and treatment, the court concluded that the extent of the disability was debatable, and that, therefore, the appellant had not placed sufficient evidence before the court to enable it to make a proper assessment.

It is correct, as the court found, that no further tests were done to ascertain the degree to which the appellant was likely to recover. The fact that the appellant had sustained very serious injuries from which he could never fully recover was common cause. The court accepted, that, following the accident, he had had to be hospitalized for about one-and-a-half years. The court accepted the report by Dr Kalangu, that, the appellant had sustained “complete paralysis of the left and complete paralysis of both lower limbs” (sic). The radiological investigations had revealed a fracture of the left clavicle, fracture of the spine in C5 and C6 and dislocation of the vertebra in C5-6 associated with spinal cord compression. Dr Kalangu estimated the percentage of disability at 60%. He further found that the appellant will have pain for a long time and he will require physiotherapy.

The court also accepted the report by Professor Meikle, of the Clinical Neurophysiology Laboratory, Harare Hospital, that the appellant had weakness of all the muscle groups in the left arm with no movement in the shoulder and elbow muscles. The Professor found the upper plexus to have been seriously injured with no sign of recovery “at present” but the lower plexus was expected to show good improvement.

Although the Professor recommended repeat studies in six months, as already noted, nothing further appears to have happened after the preparation of that report.

The court a quo found that the accident had had a serious effect on the appellant, who, before the accident, had been in charge of sport at St Johns College, Borrowdale, and had generally been active in short. His condition, after the accident, had also affected his relationship with his daughter, who, it appeared, simply could not understand why her father could no longer engage in the activities he used to.

The court a quo further accepted, as fact, that the appellant will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

It certainly would have helped had the appellant undergone further examination thereafter so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court, in my view, was sufficient to enable the court to make an award.

As WATERMEYER JA aptly put it in Sandler v Wholesale & Coal Supplies Ltd 1941 AD 194, 199:

“…, it must be recognized that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet, there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The extent of the injuries sustained was substantiated.

The doctors suggested that there was some possibility of improvement but this could only be determined if a repeat study was carried out at a later stage. During the trial, the appellant said nothing about such a repeat study. The court itself did not ask in order to clarify the situation.

The failure to lead evidence on this should not have resulted in the appellant being non-suited.

As stated in The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…, in a case such as the present, a Court does not grant absolution but may tend towards conservatism in assessing the damages. The learned authors state:

“The general attitude of the court has been that if there if evidence upon which an estimate, not unfair to the defendant, can be made, it should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff's behalf. Nevertheless, the failure to adduce such evidence would normally operate to the disadvantage of the plaintiff, in that, in its absence, the court would normally tend towards conservatism in computing the damages.”

In my view, this is the approach that the court a quo should have adopted.

I would agree with the appellant that the finding of absolution in these circumstances resulted in an injustice.

It is not uncommon, in claims for general damages, for a plaintiff to claim, and a Court to award, individual damages for pain and suffering, disfigurement, loss of amenities of life, and shortened life expectancy: see The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The finding of absolution must therefore be set aside.

The amount claimed, as at the date of commencement of the trial in October 2008, was the sum of Z$1 billion.

Judgment was given six months later, in April 2009.

At the time, the country was gripped by a hyperinflation environment which quickly eroded the value of money. In February 2009, however, the multiple currency system was introduced. Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.

At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion. It is that claim that should have been considered by the court a quo.

In terms of section 6 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009 financial institutions were instructed to accept, between 2 February 2009 and 30 June 2009, Old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.

In terms of section 8 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created, or transferred in terms of the old currency system and were to be settled, discharged, or liquidated in terms of the old currency system provided, however, that, on or after 1 July 2009 every debt was to be settled, discharged, or liquidated in terms of the new currency system only.

In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict, or otherwise.

By operation of the law, therefore, the claim by the appellant, for general damages, in the sum of Z$1 billion stood to be dealt with in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations.

The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.

Considering the extent of the injuries sustained by the appellant, the claim for damages in the sum of Z$1 billion may not have been an unreasonable sum at the time of commencement of the trial proceedings. However, the law, through the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations (Statutory Instrument 6/09), has converted what would otherwise have been a substantial claim to a most trivial one.

The result is obviously a most unfair one and the appellant, and the general public, would be excused for thinking that there is something seriously wrong with the law or at least the way it works.

The legislature should have been alive to the obvious injustices that were to follow especially because, on 1 February 2009, the Government introduced the multiple currency system under which it became possible to enter into transactions denominated in other currencies: see section 17 of the Finance (No.2) Act 2/09.

The Finance (No.2) Act 2 of 2009 regularized the introduction of other foreign currencies as legal tender with effect from 1 February 2009.

In his Notice of Appeal, the appellant has requested that his previous claim of Z$1 billion be substituted with the figure of US$50,000.

The appellant, in his heads of argument, has argued that the amendment is justified, regard being had to the current economic conditions of the country where an award in Zimbabwean dollars would render such compensation meaningless.

Alternatively, the appellant has argued that the Court, in the exercise of its discretion, can make an award based on the record using the current multiple currency system.

No authority for that proposition has been cited.

Whether or not such a proposition would violate the principle of currency nominalism has not been explored or commented upon. Whether or not the approach in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1989 (3) SA 191 (SC) can be extended to cover a situation such as the present has also not been explored.

An action for damages for bodily injury is derived not from Roman Law but from Teutonic Law, but, like the Aquilian Action, it seeks to place the plaintiff as far as possible in the position he would have been had the wrongful act causing him injury not been committed.

Such a result cannot be achieved by making an award of a fraction of the Zimbabwean cent in favour of the appellant.

In all the circumstances, I am satisfied that there is need for a full investigation into the question of the damages that ought to be awarded in this case.

This Court has not had the benefit of argument on this very important issue.

It seems to me that the most appropriate approach would be to remit the matter to the court a quo for consideration of the whole question of damages.

In Halwick Investments t/a Whelson Transport v Garai Stephen Nyamwanza SC48-09, this court clarified the circumstances under which a matter can be remitted to a trial court.

The second ground of appeal is that the court a quo erred in failing to exercise its discretion to make an award for future medical expenses in favour of the appellant.

In its judgment, the court a quo accepted that the plaintiff will require transport to attend physiotherapy and rehabilitation. However, the court found that it had not been shown how many sessions the appellant will be required to undertake although the appellant had proved that each session would cost $5.

On that basis, the court a quo granted the respondent absolution from the instance.

During oral submission before this Court, the appellant's legal practitioner conceded that the evidence led was incomplete as it was not clear how long the appellant would require pain medication and physiotherapy. He accepted that had evidence been led on this aspect, the Court would have been in a position to properly assess the future medical expenses.

It is clear that the evidence led on future medical expenses was insufficient and that although the evidence was available, none was led to show for how long the appellant would require pain medication and physiotherapy sessions.

In these circumstances, the court, in my view, correctly granted absolution from the instance.

The third and last ground of appeal is that the court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

It is apparent from the record that when the appellant initially issued summons, in July 2007, he sought damages for, inter alia, pecuniary loss of the motor vehicle that was damaged in the sum of Z$500,000,000 (old currency). This figure was, in the appellant's own opinion, the replacement value of the vehicle at the time.

What then happened after that was that, on 24 September 2008, shortly before the commencement of the trial, the appellant obtained two quotations from Borrowdale Auto and Tandem Motors in respect of a similar vehicle i.e. a 1991 Nissan Sunny with 121,000 kilometres on the clock. Both gave quotations for US$8,000.

The appellant conceded, during evidence, that he obtained new quotations in US currency owing to inflation.

The court a quo was of the view that the delay between the time when summons was issued and the quotations obtained had not been satisfactorily explained and that the explanation given, that this had been done to take into account inflation, would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

It is correct, as the court a quo found, that, in general terms, damages should be assessed as at the time of the delict.

The basic principle underlying an award of damages in the aquilian action is that the compensation must be assessed so as to place the plaintiff, as far as possible, in the position he would have occupied had the wrongful act causing him injury not been committed.

It is also established, that, the fall in the value of money is to be taken into account in considering comparable awards.

The allowance for inflation is a rough one and should incline towards conservation: The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The amount initially claimed by the appellant, as representing the replacement cost of the vehicle, was the sum of Z$500,000,000. This was later amended to US$8,000 shortly before the trial.

No authority has been cited for such an approach in a matter involving partrimonial loss.

Had the respondent been called upon to pay shortly after the accident, he would have paid no more than Z$500,000,000 old currency. The suggestion, that, owing to inflation he must now pay US$8,000 is not based on any legal principle and would be in conflict with the principle of currency nominalism: see the remarks of MAKARAU JP…, in Edward Marume & Ellen Chamunorwa v Todd Muranganwa HH27-07.

Bearing in mind that the appellant was obliged to prove his claim for damages for the damaged vehicle as at the date of the delict, the amended claim in US dollars, made shortly before the trial, has no basis in law.

It is now established, certainly in South Africa, that a monetary debt has to be paid according to its nominal value, and, to take into account inflation, interest is then added on that debt until payment is made in full. In this regard, I can do no better than quote the remarks of E M GROSSKOPF JA in SA Eagle Insurance Co. Ltd v Hartley 1990 (4) SA 833, 841C-F that:

“…, non-economic loss is not susceptible of measurement in money. Any figure which is awarded cannot be other than artificial, and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on the idiosyncracies of the assessor, the figure must be 'basically a conventional figure derived from experience and from awards in comparable cases' (Ward v James [1965] 1 All ER 563 (CA) at 576E).

The need for even-handedness requires that, when comparing awards in comparable cases, regard must be had to the purchasing power of the currency at the time when such cases were decided, otherwise one would not be comparing comparables. This does not offend against the principle of currency nominalism.

In assessing general damages, one is dealing, not with a monetary debt, but with the valuation of a non-monetary loss. Such a valuation must obviously be made in terms of currency values as they are at the time of valuation, and not in terms of the values of an earlier time.

In the same way, as it was put in argument, a valuer determining the present value of a farm would not use the currency values of the past. A monetary debt is not, however, subject to a similar type of valuation. It has to be paid according to its nominal value.”…,.

I am not persuaded, therefore, that the court a quo erred in coming to the conclusion that the appellant had failed to establish the claim for US$8,000.

In any event, prior to the introduction of the multiple currency system, in February 2009, it was not competent, except in the instances outlined in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1989 (3) SA 191 (SC), to institute claims for amounts denominated in foreign currency.

In the result, therefore, the appeal succeeds only to the extent that the order granting absolution from the instance in respect of general damages must be set aside.

On the question of costs, I am of the view that, as the appellant has only been partially successful on appeal, an order that each party pays its own costs would be most appropriate.

In the result, I make the following order:

1. The appeal succeeds to the extent that the finding of absolution from the instance, in respect of the claim for general damages, is set aside.

2. The claim for general damages is remitted to the court a quo for determination.

3. Each party is to pay its own costs.

After giving evidence, the plaintiff closed her case without calling any other witness. This prompted counsel for the defendants to apply for absolution from the instance, relying on the long accepted test employed by our courts in such matters and as discussed in such cases as Supreme Service Station (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1….,.

In response, counsel for the plaintiff submitted that the matter before me was not a proper matter in which to grant absolution from the instance as it involved a counterclaim by the defendants…,.

At this stage, I wish to point out that I agree with the observation by counsel for the plaintiff that at this stage in the trial, I may not make recourse to any findings I may have made on the credibility of the plaintiff as a witness. I also cannot determine the application for absolution on the basis of probabilities as I cannot justly arrive at these without hearing the other side. I take the view that the exercise I have to undertake, at this stage, is to simply but critically analyze the evidence adduced by the plaintiff and assess whether on the basis of such, without passing a judgment on whether I believe it or not, I can make a reasonable mistake and pass judgment in her favour.

In my view, the concept of a prima facie case is one of those legal concepts that are easier to recognize than to define. The concept eludes definition not only due to the fact that it deals with subjective measures of the cogency of evidence presented before a trier of fact, but also because the term is used loosely in both civil and criminal proceedings without a distinction having been attempted.

It appears to me that in civil cases, our courts have adopted the attitude that for interim protection by the court in the form of an interdict pending the determination of some other suit between the parties, a prima facie case is established once a cause of action is established even where the chances of the applicant to succeed in sustaining the cause of action are open to doubt. See Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (HC); Cooper v Leslie & Ors 2000 (1) ZLR 14 (HC); Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (SC).

That a prima facie case in civil suits, for the obtaining of interim protection, is simply the setting out of facts establishing a possible and plausible claim against the respondent without the evidence necessary to prove such a claim appears to me clearly from the following remarks by CHATIKOBO J…, in Sultan v Fryfern Enterprises (Pvt) Ltd & Anor 2000 (1) ZLR 188 (HC):

“I have deliberately refrained from making definitive findings of fact because it may well be that further affidavits (if any are filed for the return date) or oral evidence may justify a different conclusion. At this stage I am concerned only with the question whether a prima facie case has been shown. I am satisfied it has.”

It then appears to me that a different test is used when a prima facie case has been established by a plaintiff in a civil trial to avoid absolution from the instance being granted at the close of his or her case. The test requires the establishment of more than a cause of action. Evidence must be adduced to prove the cause of action and must be so cogent as to enable a court to give judgment on it in favour of the plaintiff unless it is successfully rebutted.

It is my view that the test used to establish a cause of action at the end of the plaintiff's case is the same used to establish a case at the end of the prosecution case to avoid a discharge of the accused person. It is the adducing of evidence upon which a court may convict unless such evidence is rebutted. See Kachipare v S 1998 (2) ZLR 271 (S). Obviously, the different burdens of proof applicable in civil and in criminal proceedings apply in establishing prima facie cases in both proceedings. The test however appears the same to me.

After the testimony of Jeremiah Hlanga, the plaintiffs closed their case.

This prompted counsel for the defendant to apply for the defendant to be absolved from the instance, arguing that the Agreement that the plaintiffs sought to rely on was illegal as it was in contravention of the Exchange Control Regulations.

On the turn, I dismissed the application.

The test to apply when faced with an application for absolution from the instance at the close of the plaintiff's case is, in my view, settled. This was put by GUBBAY CJ in United Air Charters v Jarman 1994 (2) ZLR 341 (S)..., as follows –

“The test in deciding an application for absolution from the instance is well-settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him. See Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B-E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A), BEADLE CJ..., drew attention to some of the features of the application which a court should bear in mind when considering what the judgment of a reasonable man might be on the evidence adduced at the end of the plaintiff's case. In conclusion, he urges courts to be loath to decide on questions of fact without hearing the other side. In case of doubt as to what a reasonable court would do, the judicial officer should always lean on the side of allowing the case to proceed.

It appears to me that in a claim for specific performance, the court may not prudently exercise its discretion after hearing only one party to the dispute.

This is so because specific performance is a remedy in the discretion of the court and is founded in equity. That discretion has to be judicially exercised upon a consideration of all relevant facts. The discretion that the court enjoys in this regard is not confined to specific cases or is it circumscribed by rigid rules. It appears to me that a plaintiff claiming specific performance bears no onus to show that the grant of the order will not work an undue hardship on the defendant. A plaintiff, in our law, has the right to elect to hold a defaulting defendant to the contract and once having made that election, bears no further burden to prove that their election is equitable in the circumstances of the matter. Thus, if I am correct that the plaintiff bears no burden to prove that specific performance is equitable in the circumstances of their matter, there is no basis upon which a court, acting reasonably, can, at the close of the plaintiff's case, hold that the plaintiff has not adduced sufficient evidence to show that an order of specific performance should be granted in his or her favour.

It further yet appears to me that since specific performance can only be granted after a finding of breach of a material term of the contract, where such breach is still in issue, it is not prudent or even proper for the court to jump to resolve the dispute between the parties on the basis of the unavailability of specific performance without first determining the issue of the alleged breach.

At the close of the plaintiff's case, and in view of the contents of the plea, I felt that the issue of the alleged breach of contract was still alive and that there was need for me to hear the defendant's version of events to enable me to determine whether or not the defendant had breached the sale agreement as alleged.

It is on the basis of the above that I dismissed the application for absolution from the instance when it was made. I was also guided by the sound advice given by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd 1971 (1) RLR 1 (A), that, when in doubt, a court must always lean towards the matter proceeding.

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town.

In June 2007, the plaintiff consulted the defendant complaining of sensitivity to his teeth. She examined him at the police hospital and later invited him to her surgery where she carried out some work on him. The work entailed extracting a tooth that was embedded in his gum. The extraction was not successful and she referred him to Professor Chidzonga, a specialist in the field, who finally extracted the tooth and also found out that, in the process, the plaintiff had suffered a fractured jaw. When the plaintiff's superiors visited him at his house, a decision was made that he be flown to South Africa for further management and treatment. He was duly attended to in South Africa and the fracture was reduced.

On 24 January 2008 the plaintiff issued summons out of this court against the defendant. He alleged that she had been negligent and had caused the fracture in his jaw. He claimed against her the sums of R10,000= for pain and suffering, R10,000= for loss of comfort and R78,000= as special damages.

The suit was defended.

In her plea, the defendant denied that she was negligent as alleged or at all. She further denied knowledge of the injury sustained by the plaintiff, and, in particular, that she fractured his jaw and suggested that this occurred at Professor Chidzonga's surgery where the tooth was extracted.

At the pre-trial conference of this matter, the parties settled the issues for trial as follows:

1. Whether or not the defendant undertook to perform surgery on the plaintiff with such professional skill as is reasonable for a qualified dentist?

2. Whether or not the defendant carried out the surgery on the plaintiff negligently as alleged by the plaintiff?

3. Whether or not the plaintiff suffered damages as a result of the defendant's negligence, and, if so, the quantum thereof.

At the trial of the matter, the plaintiff gave evidence. His evidence was as follows.

In early 2007, he visited the Police Camp Hospital. He was complaining of sensitivity in his teeth. He sought professional assistance from the defendant. She advised him that he required a dental cleaning session and that she needed to examine the exposed roots of his teeth. On the first visit, she applied some medication to his gums. She did not have adequate equipment at the hospital and could offer him treatment at her surgery. He accepted the offer. A week later he visited her surgery and she requested him to have an x-ray. A week later she called him and advised him that she had discovered a buried molar on the right side of his mouth. The tooth had to be extracted. On 26 June, he attended at her surgery for the tooth to be extracted. After taking him through the process, the defendant attempted to extract the tooth using a variety of tools. After some time he grew tired and was also in pain. She advised him that she had almost exposed the tooth. He then felt a sharp pain and told her to stop. He had been on her chair for two and a half hours. She advised him that he now required theater and she would refer him to Professor Chidzonga. She telephoned Professor Chidzonga's surgery and explained to them what she had already done. She wrote him a letter of referral and he left her surgery. He could feel that his jaw was heavy. It was painful.

At Professor Chidzonga's place he was taken into the consulting room, and, by that time, he could not talk. Professor Chidzonga took a small x-ray of the area. He then extracted the tooth in about 20 minutes. He suspected that the plaintiff had fractured his jaw. He could not develop the xray at that time and allowed the plaintiff to go home on a prescription for a mouth wash, a pain killer, and some antibiotics.

As he was driving home, he sent a message on his mobile phone advising the defendant that he was in terrible pain and was suspected of having fractured his jaw. His mouth was now quite heavy and he had to keep on holding his lower jaw. He was also bleeding profusely.

When he reported back to Professor Chidzonga's rooms the following day, the fracture was confirmed. Professor Chidzonga cleaned his mouth and immobilized the jaw. He placed him on a special diet and prescribed more medication.

The Commissioner-General of police visited him at home. At this time his entire face was swollen. He was incoherent. Arrangements were made for him to be flown to South Africa where he was accompanied by his wife.

In South Africa, the wires that had been used by Professor Chidzonga to immobilize his lower jaw were removed and replaced by bracelets. He was placed on a liquidized diet. On 29 July, he returned to the clinic in South Africa where a few of the bands holding his jaw together were removed. He could open his mouth by a fraction and could now use a spoon to eat porridge and yoghurt. In August, all the bands were removed and he was referred for physiotherapy. Around September, he returned to have all the bracelets removed. He was still on physiotherapy. He had to return for reviews in September and December 2007. In January 2008, he attended the final physiotherapy session here in Zimbabwe.

At the time of testifying, he could not chew hard things with his right hand side. He still felt some numbness in the side which he hoped would go away after some time.

The witness then applied to have affidavits by the three medical practitioners who attended to him in South Africa adduced into evidence. Also adduced were various documents, including air tickets from Harare to Johannesburg and invoices for the services rendered him in South Africa.

The witness gave his evidence well. He is fairly articulate. His responses to questions put to him under cross-examination were forthright. He did not seek to exaggerate. It is my finding that the witness was honest and truthful.

The plaintiff called Professor Median Chidzonga. He holds qualifications in dentistry and is a professor in maxillo-facial, oral and dental surgery. He has specialized in facial surgery and has thirty years experience under his belt. His evidence was as follows.

The plaintiff was referred to him by the defendant who wrote a note to him explaining that he should continue with the removal of a wisdom tooth that she had started working on as the plaintiff was now in severe pain.

After sitting the plaintiff in the chair, he took a radiograph of the site and then proceeded to examine him. He saw a socket where an incision had been made. He attempted to remove the tooth and it was during this process that he noticed that the jaw was not moving in unison. He requested the plaintiff to go for an x ray of the jaw. The following day the plaintiff brought back the x-ray and it showed that there was a fracture passing through the socket where he had removed the tooth. He reduced the fracture by wiring. He also obtained the results of the first radiograph he had taken when the plaintiff first visited him. It also showed that there was a fracture. Based on that radiography, he was of the view that the jaw was fractured before he started working on the plaintiff.

He further testified that it is not normal for jaws to be broken during tooth extractions. It is however possible. The possibility of this happening can be assessed through x-rays of the area taken before the extraction.

He was aware that the plaintiff later sought medical attention in South Africa. He was also aware that what was done in South Africa is similar to what he did on the plaintiff in reducing the fracture. The equipment used in South Africa is not available in this country but the expertise is.

Under cross-examination, the witness testified that the breaking of a jaw during a tooth extraction does not, in itself, denote negligence. Each case must depend on its facts. Even where a practitioner exercised all due care, at times, a jaw could still break.

Regarding the plaintiff's subsequent visit to South Africa to seek medical attention, he was of the view that this was not necessary as he could have attended to the plaintiff himself had the deteriorating condition of the plaintiff been brought to his attention.

The evidence of this witness was of great benefit to the court and great reliance shall be placed upon it in the resolution of the matter. He is an expert in his field and I would have been unable to form some of the conclusions I formed in this matter without his expert opinions.

After the evidence of this witness, the plaintiff closed his case.

The defendant testified. She narrated most of the facts that are common cause in this trial as to how the plaintiff approached her for assistance and what she did up to the time she referred the plaintiff to Professor Chidzonga. Regarding the allegation that she was negligent, her evidence was as follows;

The plaintiff's tooth was a difficult one. She did the best that she could to extract it without resorting to surgery. During the process, the plaintiff did not bleed profusely as he alleges. She however was putting water into his mouth during the process.

She was not aware that she had fractured the plaintiff's jaw during the extraction. Had she known, she would have put it in her referral letter to Professor Chidzonga. She only received a report from Professor Chidzonga who stated that, during the time he was extracting the tooth, he felt an abnormal movement to the jaw. She personally did not feel such movement.

The witness also gave her evidence well. Her evidence was, in the main, common cause with that of the plaintiff up to the time the plaintiff left her surgery. I have no reason to disbelieve her.

The defendant also called one Lewis Chidzambwa. He is a Dentist, holding a degree from a university in Finland. He has ten years experience.

The testimony of this witness was of a very general nature. He gave the court his views on what can cause pain to a patient undergoing tooth extraction, how each case is unique, and how fractures can occur in patients.

I found the evidence of this witness to be educative in a very general way.

After this witness was stood down, the defendant closed her case....,.

The plaintiff alleges that the defendant fractured his jaw during a tooth extraction. He further alleges that the fracturing of the jaw was as a result of negligence on the part of the defendant. Finally, the plaintiff alleges that, as a result of the fracture to his jaw, he suffered the various damages whose heads appear in his summons.

The factual issues that fall for determination in this matter present themselves to me as;

(i) Firstly, whether it was the defendant who fractured the plaintiff's jaw; and

(ii) If so, whether such fracturing was as a result of negligence on her part; and, again

(iii) If so, what damages did the plaintiff suffer?

I now turn to the first issue. It is to determine whether the fracture in the plaintiff's jaw was caused by the defendant.

I do not have any direct evidence in answer to this issue. The x-ray that was taken of the tooth area, after the defendant had referred the plaintiff to Professor Chidzonga, was not produced to show whether or not the jaw was fractured before Professor Chidzonga started working on the plaintiff. What was adduced into evidence was a photocopy of the x-ray which did not show anything. The copy of the x–ray was not accompanied by any report explaining the picture, and, as was correctly stated by Professor Chidzonga in his evidence in chief, the photocopy was not useful at all.

The plaintiff was of the firm belief that he suffered the fracture whilst receiving attention from the defendant. He is of this belief because he felt a sharp pain after an hour of drilling and wedging and he stopped the defendant from further proceeding. When he left the defendant's place, he was now holding his lower jaw. He urges me to infer that the sharp pain marked the point when his jaw fractured.

This is a reasonable belief on the part of the plaintiff but it is not the only reasonable inference that one can draw from the facts.

It is common cause that the plaintiff was under a local anesthetic that was now wearing off. The tooth extraction was causing him a lot of pain. The sharp pain could have been pain from the process which would have otherwise been masked by the anesthetic had it been working.

Professor Chidzonga testified that it was during the process of extracting the tooth that he noticed that the jaw was not moving in unison. He did not notice this during the examination of the plaintiff before he commenced the extraction. He then informed the plaintiff that he suspected a fractured jaw. The fracture was only confirmed the following day from xrays.

As indicated above, it would have made my task easier had the plaintiff produced the original x-ray that was taken prior to Dr Chidzonga commencing work on him. The absence of the x- ray and the evidence by Dr Chidzonga that he only noticed the irregular movement of the jaw during the extraction places me in a position where I cannot confidently hold that the jaw was broken at the defendant's surgery. This is compounded by the fact that neither Professor Chidzonga nor the plaintiff asked for leave to and opportunity to replace the useless photocopy with the original x-ray and no explanation was tendered for this omission.

Further, it was Professor Chidzonga's evidence that the x–ray that he took would only show the tooth and nothing much. He was not asked whether it would show the jaw and the fact that he referred the plaintiff to another facility for a bigger picture that would show the jaw seems to suggest to me that the radiograph that he took did not. In any event, neither the plaintiff nor Professor Chidzonga asked for time and opportunity to have the original radiograph adduced into evidence and no explanation was tendered for this omission.

I am unable to come to a conclusion as to where and when the fracture occurred from the evidence adduced before me. It could have occurred at the defendant's surgery. It could have occurred at Professor's Chidzonga's.

On the one hand, I have the testimony of the plaintiff feeling the sharp pain and the testimony of Professor Chidzonga that when he looked at the radiograph that he had taken in his surgery, he observed a fracture. This evidence seems to suggest that the fracture may have occurred at the defendant's. On the other hand, I have the missing radiography and the testimony of the defendant that she did not notice the irregular movement of the plaintiff's jaw when she was working on his tooth or else she would have included that in her written report to Professor Chidzonga.

Further, I have the testimony of Professor Chidzonga that he only noticed the irregular movement of the plaintiff's jaw when he was in the process of extracting the tooth. I also have his evidence that the x-ray he took in his surgery is of a localized nature, showing the tooth area, hence his request to the plaintiff for him to attend the Avenues Clinic for a bigger picture showing the jaw area as well. The learned professor was not asked on whether the localized x-ray he took would show the jaw area as well and to what extent. In my view, the fact that he referred the plaintiff for a bigger picture tends to suggest his one would not show the fracture to the jaw.

I have no crystal ball to gaze into for an answer to this issue. In my view, the balance of probabilities tilts in favour of no party and remains even to the detriment of the plaintiff who bears an onus to establish the facts that he relies on for his claim.

Assuming that I have erred and there is ample evidence upon which a superior court will find that the defendant did indeed fracture the plaintiff's jaw, I will proceed to give my opinion on the next issue which arises. This is to determine whether the defendant was negligent, as alleged, or at all, assuming she did fracture the plaintiff's jaw.

In his declaration, the plaintiff alleged that the defendant was negligent in that she failed to remove the tooth with such skill as is reasonable for a qualified dentist; that she tried to remove the tooth in a way that caused the plaintiff to suffer severe bleeding and unbearable pain; and that she fractured the plaintiff's lower jaw.

In his testimony, the plaintiff confined himself, and correctly so in my view, to narrating the events leading to his visit to Professor Chidzonga's surgery, and, thereafter, to him seeking treatment in South Africa. When asked how the defendant had been negligent, he simply gave his opinion that she must have been unprofessional by failing to extract the tooth in two (2) hours when Professor Chidzonga managed to do so in about 20 minutes.

The difficulty that the plaintiff had in articulating the particulars of the defendant's alleged negligence is, in my view, understandable. He is not a dental surgeon. I understand the plaintiff to have taken the simple approach to this whole matter that because an accident occurred whilst the defendant was in charge, she must have been negligent.

In my view, the particulars of negligence alleged against the defendant can only be validating by making reference to the standard operating procedures of dentists. This is so because to test the negligence of a professional, one has to first establish what an average reasonable professional in the shoes of the defendant would have done. See S v McGowan 1995 (1) ZLR 4 (HC).

The average reasonable professional is not one who is an ace or an expert in his or her field. Thus, the skills exhibited by Professor Chidzonga cannot be used to measure whether or not the defendant was negligent. She may not have been as adept at extracting teeth as the professor was. This, however, does not automatically translate into negligence on her part. An average professional is not one who is so careful that he or she will weigh each and every risk attendant upon the task at hand and advise the client of all such risks before proceeding. He or she will weigh the obvious risks and advise the client of the same.

In casu, it was Professor Chidzonga's testimony that the likelihood of a fracture during a tooth extraction can sometimes show in an x-ray taken before the extraction. It is not in dispute that the defendant caused an x ray of the plaintiff's mouth to be taken before she started working on him. It was not suggested that this x-ray showed that possibility of the plaintiff fracturing his jaw, and, notwithstanding clear evidence of this likelihood, the defendant proceeded with the extraction without taking any steps to guard against the occurrence.

It further appears to me that the reasonable professional is one who will bring their training to bear on the task at hand to assess the attendant risks and proceed with alertness. He or she has a certain degree of confidence in their capacity and skill that allows them to proceed without undue timidity and is, to a large extent, a practical person who wishes to achieve a specified result.

As I have indicated above, to establish what a reasonable dentist would have done in the circumstances of this matter, the evidence of the plaintiff was not material. It would only have been material in showing what the defendant actually did. The evidence of another dentist was imperative to set the standards that are average in the profession and against which the conduct of the defendant would have been measured to show the deviation relied upon to form a cause of action in delict.

The evidence of Professor Chidzonga, called by the plaintiff, did not sufficiently set out the average professional standards expected of a dentist extracting a tooth. His evidence was also largely narrative of the steps he took to extract the tooth after the defendant referred the plaintiff to him. He did not testify that what the defendant had done prior to her referring the plaintiff to his surgery was negligent. He was not examined on this aspect of the matter. The only portion of his evidence-in-chief that I regard as relevant on this issue is when the professor testified that it is not normal that a jaw will fracture during a tooth extraction. He qualified that by testifying that the possibility of a fracture can be assessed by taking an x- ray before the extraction. As stated above, the defendant did cause an x-ray to be taken before she discovered the embedded tooth. The x-ray so taken was not adduced into evidence.

The issue that may have exercised my mind is whether the defendant was negligent in not noticing from this x–ray that the plaintiff's jaw was likely to fracture during the extraction had the plaintiff so pleaded. He did not.

Of significance, in my view, is the evidence of the professor under cross-examination that the fracturing of a jaw during a tooth extraction does not necessarily denote negligence on the part of the dentist. He agreed with counsel for the defendant's suggestion that sometimes even where the dentist was careful a jaw could still break. His explanation was that a lot depended on the circumstances surrounding the case.

Faced with such colourless evidence as to what a reasonable dentist would have done in the circumstances, I have no basis for holding that what the defendant did deviated from that norm and was thus negligence.

Again, assuming that I have erred in holding that there is insufficient evidence before me to hold the defendant negligent I proceed to determine whether the plaintiff has proved that he would have been entitled to damages in this matter, and, if so, the quantum thereof.

Under the first head of damages, the plaintiff claims against the defendant the sum of R10,000= for pain and suffering.

It is common cause that the plaintiff was attended to by two medical practitioners on the same day and was thereafter attended to in South Africa. In his evidence, it is clear that he wishes to be compensated for the pain that he endured not only whilst in the defendant's surgery but thereafter and through his entire ordeal until the braces were removed from his face.

But, it is trite that the defendant can only be liable for the pain that she factually and legally caused.

The issue that immediately arises, and one that counsel for the plaintiff did not address fully, is how I am to apportion the pain and suffering between that caused by the defendant and that caused by the other medical professionals who attended to the plaintiff. It would appear to me that the plaintiff has again taken the simplistic approach that, since the defendant set the whole train in motion, she must be held liable for all the pain that followed her contact with the defendant.

In my view, the attention given to the plaintiff by the professor was clearly novus actus interveniens that broke the chain of events and thus the liability of the defendant.

In this regard, I have asked myself what was the active or direct cause of the pain that the plaintiff suffered in this matter?

It appears to me that the tooth extraction, started by the defendant but finished by the Professor was the direct cause of the pain. Thus, the defendant did not cause all the pain. She may have contributed to the subsequent pain. Some of the pain may have been naturally associated with a tooth extraction and may not have been actionable. I have no way of knowing the pain that the plaintiff suffered unlawfully at the hands of the defendant for no medical evidence was adduced as to the pain that the plaintiff experienced prior to the extraction of the tooth.

Due to the manner in which the events of this matter unfolded, it appears to me that the plaintiff had a mammoth task in proving pain and suffering attributable to the defendant alone.

Legal causation is usually problematic where a whole chain of consecutive or remote consequences results from the wrongdoer's alleged negligence and where it is alleged that he or she should be held legally responsible for all the consequences. I am of the view that the efforts of the professor to assist the plaintiff neutralizes the causative force of the defendant's original conduct. In any event, it has not been argued that a reasonable dentist would have foreseen the entire chain of events that unfolded in this matter and would have taken steps to guard against the same.

Had I found the defendant liable, I would have assessed damages under this head modestly and may have awarded a sum of not more that R2,000= in view of the inadequacies that I have highlighted above.

Regarding damages for loss of comfort, which I believe ought to be correctly reflected as “loss of amenities,” and the special damages of expenses incurred in South Africa, I would have absolved the defendant from liability on the basis that the damage is remotely connected to her conduct in that there was an novus actus interveniens in the form of the services rendered to the plaintiff by Professor Chidzonga.

The attention given to the plaintiff by Professor Chidzonga was the ultimate cause for the discomfort that he suffered and the expenses that he incurred in seeking treatment in South Africa. Had he sought treatment in South Africa immediately after consulting the defendant, my finding on this issue would have been different.

Regarding costs, it is my view that the plaintiff's approach to court was reasonable and was prompted by a desire to be compensated for damages flowing from alleged professional negligence. Tested against a reasonable man, the plaintiff's case has merit. No one expects to have their jaw broken when they request for a tooth extraction from a dentist, and, where this occurs, there should be redress. Unfortunately, the law does not allow the judge, using the test of the paterfamilias, to substitute his or her own standards for those of a reasonable professional such as a dentist.

The stringent test for establishing the negligence of a professional requires that the allegedly defaulting professional be judged by the standards set by his or her peers.

Cases of professional negligence are, in my view, difficult to successfully prosecute in this jurisdiction where most professions are still small and closely knit and members of the profession know each other on personal levels. Testifying against a fellow professional is still frowned upon as being in itself unprofessional, and, thus, evidence of negligence is difficult to come by.

From the above, I am not suggesting that Professor Chidzonga chose not to testify against the defendant as he is personally known to her. He was simply not led on the critical issues of negligence and I do not know what his responses would have been. The testimony of Dr Lewis Chidzambwa, on the other hand, was clearly meant to absolve the defendant from all professional liability.

While he is not succeeding, I see no reason to mulct the plaintiff with an order of costs on the basis of the above observations.

In the result, I make the following order;

1. The defendant is absolved from the instance.

2. Each party shall bear its own costs.

At the end of the plaintiff's case, the defendant applied for absolution from the instance.

At the close of the plaintiff's case, the first, second and third defendants applied for absolution from the instance.

The basis of the application is that the plaintiff acquired the shares in contravention of a court order (i.e. with dirty hands), and, further, that he has no locus standi to institute these proceedings without authority of the Trustee as his estate was rested in the hands of such Trustee.

After the plaintiff had closed its case the defendant applied for absolution from the instance contending that the plaintiff had not established a case for the defendant to be called upon to rebut.

An absolution from the instance may be granted where, from the evidence adduced, the plaintiff has not made out a case whereby a reasonable court may or could find in his favour if the defendant did not rebut the testimony given.

In Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) DUMBUTSHENA CJ quoted with approval the words of CORBETT JA in Mazibuko v Santam Insurance Co. Ltd & Anor 1983 (3) SA 123 (AD)..., whereat CORBETT JA said that –

“In an application for absolution made by the defendant at the close of the plaintiff's case the question to which the court must address itself is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff, in other words whether the plaintiff has made out a prima facie case. This is trite law.”

In casu, the hurdle the plaintiff had to overcome pertained to clear clauses that the parties agreed to. The question is – could or might a reasonable court applying its mind reasonably to the evidence adduced by the plaintiff find for the plaintiff that payment was to actually be made in the Zimbabwe dollar equivalent; moreso at the official exchange rate? Is it possible that the court could or might find that the parties in fact agreed on the exchange rate?

The clauses dealing with the purchase price and manner of payment admit of no ambiguity at all. The clauses that dealt with other payments, other than the purchase price, went further to state in what currency they would be paid in and at what exchange rate. The omission of an exchange rate for the purchase price, when paying in Zimbabwe dollars, was clearly deliberate as the parties did not intend that the purchase price be paid in Zimbabwe dollars.

The plaintiff's contention in this regard is clearly untenable.

As was shown during the cross-examination of the plaintiff, the GBP180,000= was about 86 million Zimbabwe dollars if exchanged at the then official exchange rate. Yet, the plaintiff himself had said he initially offered 1,5 billion Zimbabwe dollars – which apparently was not accepted. The plaintiff later said the purchase price was 1,6 billion Zimbabwe dollars . That, again, could not have been at the official exchange rate. It may also be noted that the 7,5% commission that the plaintiff was required to pay Lauraine O'Neil, at the parallel market rate, was in fact far in excess of the purchase price calculated at the official rate...,.

It is clear to me that the plaintiff has not established a prima facie case that the purchase price was payable in Zimbabwe dollars. If anything, it is apparent that the purchase price was payable in foreign currency, i.e. British Pounds Sterling.

No reasonable court can or might find for the plaintiff from the evidence adduced so far. It would be an exercise in futility to put the defendant on her defence.

The cardinal point at this stage is whether to give an absolution from the instance..., or not. That is the concern of this ruling.

First and second defendants' application for absolution

When the court ruled against the plaintiff's application to reopen his case, counsel for Eunice Taylor and Gabriel Real Estate applied for their absolution from the instance.

He premised his application on the plaintiff's not having led evidence to prove that his offer had been accepted by the Seller. He said what the plaintiff proved was that he made an offer, but led no evidence to prove that the Seller accepted his offer. He submitted that without such evidence the plaintiff has not led prima facie evidence on the parties having entered into a contract of sale. He submitted that because of that the defendants should be absolved from the instance because no reasonable man (court), acting carefully, might find for the applicant on the evidence led by the plaintiff. He then proceeded to expose the deficiencies in the plaintiff's evidence, as has been already dealt with under the plaintiff's application to re-open his case.

Counsel for Eunice Taylor and Gabriel Real Estate also referred to the cases of Cloud Neon Lights (SA) Ltd v Daniel 1976 (4) (SA) 403 (AD); Marine & Trade Insurance Co. Ltd v  Van Der Schwill 1972 (1) SA 26; United Air Charters v S. Jarman 1994 (2) ZLR 341…,.; Supreme Service Station 1969 (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1; Manhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382; and Taunton Enterprises (Pvt) Ltd & Anor v Marais 1996 (2) ZLR 303…,.

In Taunton Enterprises (Pvt) Ltd & Anor v Marais 1996 (2) ZLR 303…, MALABA J…, said-

“The test is whether, at the close of the plaintiff's case, there is evidence upon which a reasonable man, acting carefully, might (not should) give judgment for the plaintiff on the issues before the court. The judicial officer is enjoined by law to bring to bear upon the evidence what the judgment of a reasonable man might be, but not what he thinks the judgment is: Gascoyne v Paul & Hunter 1917 TPD 170 at 173; Myburgh v Kelly 1942 EDL 202; Huizenga NO v Zwinoira 1987 (2) ZLR 276 (H) at 280A-B.

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A), BEADLE CJ drew attention to some of the features of the application which a court should bear in mind when considering what the judgment of a reasonable man might be on the evidence adduced at the end of the plaintiff's case. The learned CHIEF JUSTICE said the court should bear in mind that the defendant has not yet given evidence and cross-examined on it. If the plaintiff has made some case for the defendant to answer and the defence is something peculiarly within the knowledge of the defendant, justice demands that he should be heard. He pointed out that the general attitude of judges is that they should be very loath to decide upon questions of fact without having all the evidence on both sides. In case of doubt as to what the judgment of a reasonable man might be the safest course for a judge to take is that which allows the case to proceed.”

In Manhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382…, CHATIKOBO J said -

“However, in the Supreme Service Station case supra at 5 H-I BEADLE CJ said that:

'…, rules of procedure are made to ensure that justice is done between the parties, and, so far as possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.'

The bus was on the defendant's premises. It is the defendant's servants who are accused of removing the parts. The defendant is therefore particularly well placed to answer the accusations and this would, in normal circumstances, be sufficient evidence upon which I could make a reasonable mistake and find for the plaintiff.”

Counsel for the plaintiff opposed the application arguing that the plaintiff's evidence that he believed his offer had been accepted should persuade the court to order the trial to go on. He submitted that courts lean on the trial going on if there is a doubt as to whether a reasonable court might make a mistake and find for the plaintiff. He referred to the case of Supreme Service Station 1969 (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1…, where BEADLE CJ dealt with these propositions.

I agree with the legal positions but the issue in this case is; are there doubts in this case which would make this court lean towards continuing with the proceedings? Alternatively, would a reasonable man make a mistake and find for the plaintiff?

The abovementioned legal principles are applied subject to the plaintiff having presented a prima facie case in that there is evidence relating to all the elements of the claim in order to survive absolution because, without such evidence, no court could find for the plaintiff.

The evidence led for the plaintiff proves he made an offer. He was then asked to wait while his offer was being considered. He was to check after seven days. When he inquired with the Seller's agents he was told not to panic as his offer was still being considered. It is, in my view, not possible to say a reasonable man would make a mistake and find for the plaintiff that a contract of sale had been concluded between the plaintiff and the first defendant when it's clear that the seller had not accepted the plaintiff's offer. The plaintiff's evidence establishes that his offer was being considered….,.

I am therefore satisfied that Eunice Taylor's application for absolution must succeed….,.

Mr Alvin Dumisani Ncube said, as between the first and second defendants, the plaintiff was not clear as to who was responsible for the loss.

The plaintiff had merely been told that the second defendant was guarding the premises at the material time. He said the verbal agreement did not include the second defendant and he did not know the name of the company that was guarding the premises at the time of the loss.

At the close of the plaintiff's case, counsel for the first defendant said he was under instruction from the first defendant to apply for absolution from the instance since it was not clear on whether or not the plaintiff's claim was based on delict or breach of contract.

In response to the application for absolution, I was of the opinion that the plaintiff had a story which required clear rebuttal from the other side. The receipts against invoices from the first defendant appeared to confirm a contractual arrangement. I therefore felt it would be premature to seriously consider the application for absolution.

I dismissed the application.

On 8 December 2010, at around 1700 hours, and in Avonlea Drive, the plaintiff was approached by the defendant who was in the company of other officers of the Criminal Investigation Department. The defendant ordered the plaintiff to disembark from the motor vehicle where he was sitting. He ordered the plaintiff to lie on the ground on his back.

The defendant accused the plaintiff of having stolen the motor vehicle he was in. The plaintiff protested his innocence. The defendant, who was standing directly above the plaintiff, fired several shots aimed at the plaintiff's legs. He proceeded to handcuff the complainant and drove around with him for several hours before dropping him off at Harare Hospital. He did not remove the handcuffs. The defendant did not take the plaintiff to any police station for charges to be laid against him.

A total of six bullets were fired into the plaintiff's legs. As a result, he sustained numerous injuries from which he;

(a) Endured and still experiences excruciating pain;

(b) Had to have four steel plates surgically inserted in his right leg;

(c) Had to have an above the knee amputation of his left leg;

(d) Suffered contumelia as he was subjected to cruel, inhuman and degrading treatment.

The plaintiff incurred medical expenses in relation to the knee amputation, insertion of steel plates to reinforce the injured leg, analgesics, and other medical procedures.

Due to the nature of the injuries and associated complications, the disability percentage was assessed at 63%.

The plaintiff then instituted action proceedings against the defendant claiming:-

(a) $50,000 being damages for shock, pain and suffering;

(b) $100,000 being damages for loss of amenities of life;

(c) $50,000 being damages for contumelia;

(d) $11,367 being special damages for medical expenses;

(e) Interest on the total sum of $211,367 at the prescribed rate for the date of summons to date of trial payment;

(f) Costs of suit.

The defendant was served with the summons and did not enter appearance to defend. The matter was set down on the unopposed roll for the plaintiff to establish his claim.

In his affidavit of evidence, the plaintiff detailed how he was shot, the injuries he sustained, some of the procedures he underwent, and the medical expenses he incurred in respect of the procedures.

He then concluded in affidavit with a statement that he is entitled to the damages in the summons and declaration as the shooting was unjustified and unprovoked.

He did not give evidence at all to establish a basis for awarding him damages for contumelia and loss of amenities of life. Some attempt was made, in the Heads of Argument, to establish how the plaintiff suffered damages for the contumelia and loss amenities.

The case of Matthew Mbundire v Tryone Sim Buttress SC13-11 is very instructive.

GARWE JA considered the approach that has been followed by the courts in the assessment of damages in general and special damages in particular. He looked at a number of authorities, and, I will quote in extenso from p4 of the judgment:-

“In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

'…,. Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.

There are cases where the assessment by the Court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance. But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176 H, 187C-D, BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C) 655-656F that:

'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.'…,.

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages, for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis for an assessment; and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': Per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance….,.'

In The Quantum of Damages in Bodily and Fatal Injury cases, 3ed, by CORBERT, BUCHANAN & GAUNTLETT, the learned authors state as follows at p99:

'In the case of damages which are capable of exact mathematical computation, such as for example medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.'”

What is coming out of the above authorities, as quoted by GARWE JA in Matthew Mbundire v Tryone Sim Buttress SC13-11, is that a plaintiff must provide a factual basis, in evidence, that he suffered pecuniary damage. Once that is established, the court can then estimate the amount of damages as best as it can on the evidence available. When he has not done so, the court is justified in ordering absolution from the instance.

This is the situation that the plaintiff finds himself in casu.

Evidence is led through the plaintiff either viva voce or through an affidavit. It cannot be canvassed in the Heads of Argument.

In the result, the defendant must be absolved from the instance regarding the claims of contumelia and loss of amenities....,.

(a)...,.

(b)...,

(c)...,.

(d) The defendant is absolved from the instance in respect of the claims for contumelia and loss of amenities..

The law applicable in an application for absolution from the instance is well-settled. As was stated by GUBBAY CJ in Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (SC)…, -

“The test to be applied in deciding an application for absolution from the instance is well settled in this jurisdiction. It was reiterated recently by this court in United Air Carriers (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) in these terms:

The test to be applied in deciding an application for absolution from the instance is well settled in our jurisdiction and in this regard I can do no more than refer to GUBBAY CJ when he stated in United Air Charterns v Jarman 1994 (2) ZLR 341 (S)…., -

“…,. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him. See Supreme SVC Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at SD - E; Lowrence v Rajar Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158 B –E.”

It was argued by the defendant's counsel that the onus was on the plaintiff to place before the court sufficient evidence to show malice on the part of the defendant in reporting the matter of theft to the police which report led to the prosecution and subsequent acquittal of the plaintiff. The defendant's counsel submitted that the plaintiff had failed to discharge such evidence.

I agree.

It was critical that the plaintiff lays down the basis upon which his claim was pivoted. The prosecution and subsequent acquittal of the plaintiff, per se, would not demonstrate malice on the part of the defendant….,.

I am satisfied that at the close of his case the plaintiff had not made some case for the defendant to answer.

At the close of the case for the plaintiff counsel for the first defendant applied for absolution from the instance.

He submitted that an agent can only introduce a property with authority from the seller or owner. Conversely, he submitted that an estate agent cannot introduce a property to a potential buyer without the authority of the seller or owner. Counsel for the first defendant made reference to correspondence constituting the first defendant's bundle. The letter on page 56 of that bundle purported to introduce the property on behalf of Total Zimbabwe (Private) Limited. In that respect, he submitted that there is no issue that the plaintiff was acting on behalf of the first defendant. He further submitted that there is no written proof that the first defendant instructed the plaintiff to represent it. He also submitted that although Mr Kafuka testified that the Finance Manager had sought proof that the plaintiff had authority from the first defendant, all that was availed was an attempt in the form of a letter from the first defendant in which it expressed interest in the property. Counsel for the first defendant further submitted that there was no compliance with section 10(2) of the Estate Agents (Professional Conduct) (Amendment) Rules (No.2), S.I.131 of 1991. This is because, as he submitted, when Angeline Musarurwa spoke to officials of the first defendant she had no authority from Total Zimbabwe (Private) Limited.

In short, the thrust of counsel for the first defendant's submission is that the documentary evidence was not complemented by the oral testimony of the witnesses.

In addition, counsel for the first defendant also posed the question whether the plaintiff performed any mandate. He raised this in light of the letter by Total Zimbabwe (Private) Limited to the plaintiff dated 30 November 2009 in which an offer of US$3,000,000= was made to the first defendant. The same letter invited acceptance to be made in writing. Counsel for the first defendant submitted that despite a follow up letter by the plaintiff there was no such acceptance by the first defendant. In such a case, it was his submission that there was no relationship of principal and agent between the first defendant and the plaintiff. Hence, no prima facie case had been made for the plaintiff. He thus prayed for absolution from the instance to be granted with costs.

On the other hand, counsel for the plaintiff submitted that counsel for the first defendant had not addressed the issue of estoppel which can only be adequately addressed once all the evidence has been heard. He further submitted that what is of relevance is a letter addressed to the plaintiff by the first defendant which is dated 30 November 2009. That letters reads as follows:

“NSSA is keen to purchase the property from Total.

Your assistance will be very much appreciated if this deal can be concluded as soon as possible.”

Counsel for the plaintiff queried what deal was being referred to if the parties had no prior communication on the issue. He also submitted that the first defendant only approached Total Zimbabwe (Private) Limited after its offer of US$3,000,000= had been accepted. He further contended that the first defendant is estopped from denying agency because it acted on the communication between Total Zimbabwe (Private) Limited and the plaintiff. Counsel for the plaintiff further submitted that there is evidence of communication between the plaintiff and the first defendant. After the first defendant indicated the price at which they were purchasing the property the plaintiff's role was over. According to counsel for the plaintiff, it cannot be said that the evidence led is so improbable that any court acting on it might not find for the plaintiff. Despite the fact that the first defendant did not sign the mandate form given to it by the plaintiff, the latter continued to negotiate the sale. The contention here is that the plaintiff would not have continued to act if it had been told that there was no mandate as argued by the first defendant.

He further contended that the involvement of the plaintiff has not been denied and in the absence of such denial the first defendant has a case to explain.

As for the test applicable, counsel for the plaintiff cited the case of Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 R.L.R 1 (AD).

The law applicable in respect of an application for absolution from the instance is well established. In Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 R.L.R 1 (AD), which counsel for the plaintiff cited, BEADLE CJ had this to say…, -

“The locus classicus of the cases dealing with the procedure of absolution from the instance is the old Transvaal case of Gascoyne v Paul and Hunter 1917 T.P.D 170. In that case, it was pointed out that an application for absolution from the instance stands much on the same footing as an application for the discharge of an accused at the close of the evidence for the prosecution, but it is stressed (see p173 of the judgment) that it would, indeed, be curious if, in civil cases, were to apply a more stringent rule of practice than in criminal cases. It would seem to me that, as in a criminal case the onus is always higher than in a civil case, evidence which in a criminal case would be insufficient to justify refusing an application for the discharge of an accused might well, in a civil case, be sufficient to justify refusing an application for absolution from the instance. Gascoyne's case stresses that it is perfectly competent for a court to refuse an application for absolution from the instance when the application is made at the close of the plaintiff's case, but to grant it if the defendant then promptly closes his case and renews the application without calling any evidence at all. There is no inconsistency in two such diametrically opposed orders, though the evidence before the court in each application is identical. The reason why there is no inconsistency is because the test to be applied when application is made before the defendant closes his case is 'what might a reasonable court do?' Whereas, the test to be applied when the application is made after the defendant has closed its case is 'what ought a reasonable court to do?”

Having discussed the distinction between “might” and “ought” the learned CHIEF JUSTICE went further to state…., -

“The test, therefore, boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make - a definition which helps not at all.”

What comes out from this decision is that it must always be borne in mind that consideration must be given to the fact that the defendant would not have given evidence where an application for absolution from the instance is made at the close of the plaintiff's case.

Coming to the facts of the present matter, it is common cause that the plaintiff had no mandate from Total Zimbabwe (Private) Limited. Having learnt from the plaintiff's representative that the first defendant wanted to know whether Chibuku House was on sale, the plaintiff, on 2 November 2009, wrote to the first defendant and introduced the property. Despite having enclosed an offer form, this was not completed by the first defendant. It is also common cause that whereas the first defendant was interested in Chibuku House, it did not want to make an offer. It is also common cause that the plaintiff exchanged correspondence with both the first defendant and Total Zimbabwe (Private) Limited in connection with Chibuku House. At the stage when Total Zimbabwe (Private) Limited knew that the first defendant was interested in the property, it requested for proof that the plaintiff was acting on behalf of the first defendant. It is common cause that when proof that the plaintiff was representing the first defendant was sought the best that emerged was a letter which is on page two of exhibit “A” which is cited elsewhere in this judgment. It is also common cause that when Total Zimbabwe (Private) Limited accepted the “offer” of US$3,000,000= from the plaintiff it wrote back to the plaintiff indicating that there be a written acceptance by the first defendant. This was not to be as there was no written acceptance by the first defendant. Nonetheless, an agreement was subsequently concluded between the first defendant and Total Zimbabwe (Private) Limited - but without the further involvement of the plaintiff.

Although Phillip Mugadza initially denied any involvement in the discussions on Chibuku House, his responses to questions put to him concerning text messages from his phone betrayed him. The contents of the text message read to him were as follows:

“How has been your day uncle? I thought you should know that if you do not know do something about Chibuku House it will be taken by Africa Sun or Speciss. There are other agents interested. Bard House is also interested.

Your brother, Mugadza.”

The witness was quizzed about this message and he dismally failed to explain it. He was also quizzed about other text messages sent by Mr Ndizeye. Overall, he was defensive, evasive and anticipated questions. I would say he was a poor witness.

That being so, this brings into focus the provisions of the Estate Agents (Professional Conduct) (Amendment) Rules (No.2). Section 10(1) of the Estate Agents (Professional Conduct) (Amendment) Rules (No.2), S.I.131 of 1991 provides that -

“Subject to this section, no agent shall seek or accept a mandate from a person in respect of a property for which he knows or has reason to believe that a mandate of the same nature has already been granted to another agent, unless -

(a) The agent is offered the mandate without having sought it; and

(b) The person offering it has withdrawn any sole mandate in respect of the property.”

In light of Phillip Mugadza's testimony, it appears the plaintiff was aware that another agent was involved. The evidence led does not show that the requirements laid out in paras (a) and (b) of section 10(1) of the Estate Agents (Professional Conduct) (Amendment) Rules (No.2), S.I.131 of 1991 were met. Now, it being known that the seller had not given a mandate to the plaintiff, the provisions of section 10(2) of the Estate Agents (Professional Conduct) (Amendment) Rules (No.2), S.I.131 of 1991 appear not to have been met. Section 10(2) of the Estate Agents (Professional Conduct) (Amendment) Rules (No.2), S.I.131 of 1991 provides that -

“Where an agent receives an instruction from a prospective purchaser or tenant to endeavour to purchase or hire property in respect of which the agent does not have a mandate to sell or lease, the agent shall -

(a) Make known to the prospective purchaser or tenant that he shall be liable to meet all costs, including agent's commission or negotiating fee, unless the owner agrees to share or meet these expenses; and

(b) Approach the owner or lessor and inquire whether he has appointed an agent with a mandate to sell or lease the property concerned, as the case may be, and where -

(i) The owner or lessor confirms that no other agent has been appointed to sell or lease the property concerned, as the case may be, the agent may negotiate the purchase or lease of that property directly with the owner or lessor; or

(ii) …,.”

Anthlem Tafirei Gwedegwe claimed that the first defendant's representatives agreed to pay the agent's commission verbally. However, the parties appeared to have conducted their dealings in writing as evidenced by the correspondence that was produced during the trial. It was not properly explained why there was no such communication in writing concerning such an important aspect like commission. The only time the issue of commission came up for the first time was when the plaintiff wrote to the first defendant, on 1 December 2009, after Total Zimbabwe (Private) Limited had accepted the offer of US$3,000,000=. I am convinced that the plaintiff failed to comply with section 10(2)(a) of the Estate Agents (Professional Conduct) (Amendment) Rules (No.2), S.I.131 of 1991 with regard to securing attendant costs - including agent's commission.

Having made these observations, it follows that in light of the unsatisfactory nature of the evidence given on behalf of the plaintiff, no reasonable court might make a mistake and give judgment for the plaintiff.

Absolution from the instance is granted when the party who has led evidence fails to establish a prima facie case against the defending party on which a court might make a reasonable mistake and find for her. In this case, counsel for the plaintiff submitted that the first defendant has not presented a prima facie case which justifies putting his client on her defence.

In Munhuwa v Mhukahuru Bus Services (Pvt) Ltd 1994 (2) ZLR 382 (HC) CHATIKOBO J…, said;

“However, in the Supreme Service Station case supra at 5H-I BEADLE CJ said that:

'…, rules of procedure are made to ensure that justice is done between the parties, and, so as far as possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.'

The bus was on the defendant's premises. It is the defendant's servants who are accused of removing the parts. The defendant is therefore particularly well placed to answer the accusations and this would, in normal circumstances, be sufficient evidence upon which I could make a reasonable mistake and find for the plaintiff.”

It is only fair that the plaintiff testify as to how she got the Divorce Order in the Dominican Republic and its effect on the marriage registered in the Philippines. She has peculiar knowledge on how she got the Divorce Order she presented to the Marriage Officer, its validity, and effect on her marriage to Apolonio Ramos Dacany.

At the close of the plaintiff's case, the second defendant applied for absolution from the instance. I asked the parties to prepare heads of argument and on 26 June 2013, after hearing the parties, I dismissed the second defendant's application. I believed that the plaintiff had established a prima facie case.

Notwithstanding the fact that it was clear from the issues for determination that the dispute was on whether or not the plaintiff had indeed paid Glory Car Hire the amount claimed, the second defendant, despite having already pleaded to the summons, argued that the claim in the summons was different from the facts presented in the declaration. I did not find merit in the second defendant's submission because I believed the plaintiff's claim was clear (i.e. vehicle hire costs incurred as a result of the accident for which the second defendant had already admitted liability).

With respect to the principles to be considered in an application for absolution from the instance, in United Air Charters v Jarman 1994 (2) ZLR 341 (S) GUBBAY CJ stated:-

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”

In casu, liability was admitted and the only issue was proof of payment. The plaintiff's evidence was on that point.

I also agreed with the plaintiff's submission that, if, indeed, the second defendant was serious, it should have excepted to the summons and declaration in terms of the Rules. Furthermore, there was, in my view, no need to back-track when liability had been admitted.

The basis of the defendants' application for dismissal of the plaintiffs' case is that the plaintiffs placed insufficient evidence before the court to sustain their claim.

Counsel for the defendants made much of the apparent discrepancy in the amount claimed by the plaintiffs; whether it was US$800,000= or US$793,000=, or US$138,648=38, or US$135,000=. It was submitted, on behalf of the defendants that, the document relied on by second the plaintiff, the credit facility agreement between the second plaintiff and Kingdom Bank in Botswana was unsigned and therefore of no probative value. The basis for dismissal, it was submitted, was the common law provision of absolution from the instance where the court is imbued with discretion, at the close of a plaintiff's case, to evaluate the evidence and to discharge the plaintiff's case if the evidence is insufficient to sustain the plaintiff's claim….,.

The defendants submitted that the plaintiffs had failed to adduce sufficient evidence that:

(a) Defendants had defaulted in paying for any of the fuel that was delivered.

(b) Defendants' default of payment had caused second plaintiff to incur costs and charges on its credit facility.

(c) The entire credit facility had been utilized to supply fuel to the defendants.

(d) The dates on which the second plaintiff defaulted on the credit facility.

(e) The exact amount due and owing, whether it was US$793,000= or US$138,648=38, or US$135,000=.

The Law

The court is grateful to counsel for drawing its attention to the following cases:

Standard Chartered Finance Zimbabwe v Georgias & Anor 1998 (2) ZLR 547…, where it was held that:

“In considering an application for absolution from the instance, a judicial officer should always lean in favor of the case continuing. If there is reasonable evidence on which the court might find for the plaintiff the case should continue.”

See Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1…, where BEADLE CJ said:

“The test, therefore, boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make - a definition which helps not at all.''

Further on, at 5-6, the learned CHIEF JUSTICE went on to say:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that justice is done between the parties, and, so far as is possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance.”

In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (SC), the court stated that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought find for him. See Supreme SVC Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B-E.”….,.

The plaintiffs' bundle of documents contains invoices which were allegedly not paid by the first defendant. A copy of a loan facility between the second plaintiff and Kingdom Bank in Botswana was admitted into evidence. It cannot therefore be said that there is insufficient evidence on which a reasonable court might make a mistake and find in favour of the plaintiffs. See Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1. These documents, in my view, constitute prima facie evidence that the plaintiffs and the first defendant entered into an agreement for the buying and selling of fuel. It is not in dispute that the first defendant owes the plaintiffs some money. It is not in dispute that the invoices tendered by the plaintiffs are genuine.

What is in dispute is the quantum of liability. 

Invoice 2011103 was for $136,510=. The evidence before the court is that this figure fluctuated due to the interest charges. It went down to $135,000= after some payments were made; then back to $138,648=38 when interest accrued.

The first defendant itself admits to owing the plaintiffs US$7,000=. The second plaintiff alleges that it is owed US$793,000=. During cross-examination, Webster Musayemura explained that the first defendant made various payments in settlement of its liability in terms of invoice 2011103 dated 9 February 2010.

The court finds that the first defendant ought to be put to its defence. It ought to explain the basis on which it claims that it owes the plaintiffs a balance of US$7,000=. That defence is peculiarly within the knowledge of the first defendant. See Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1.

The plaintiffs have tendered invoices and a credit agreement as the basis for their claim.

In my view, the plaintiffs' case is not baseless or entirely without foundation. The court finds that the plaintiffs have adduced prima facie evidence of liability against the first defendant in the sum of $793,000=. The plaintiffs have made out some case to answer, on a prima facie basis, and the court will not lightly deprive the plaintiffs of their remedy without first hearing what the first defendant has to say. The procedure where a party may apply for absolution from the instance was not put in place to cause an injustice. The authenticity of invoice 2011103 was not questioned. That is the basis of the plaintiff's claim for US$793,000=.

The law on absolution from the instance is now well transversed in this jurisdiction. 

The law is fairly clear and settled. The test to be applied in deciding whether to grant absolution from the instance is whether at the close of the plaintiff's case sufficient evidence has been led to establish a prima facie case upon which a reasonable court exercising its mind to the evidence led could reasonably find for the plaintiff. The principle was reiterated in the case of United Air Carriers (Pvt) Ltd vs Jarman 1994 (2) ZLR 341 in these terms:-

“A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”

In the case of Walker v Industrial Equity Ltd 1995 (1) ZLR 87, the principles in the case of United Air Carriers (Pvt) Ltd vs Jarman 1994 (2) ZLR 341 were accepted and applied.

In the instant case, the court must first determine whether the failure by the plaintiff to place before the court evidence showing that the disputed Will was authored by Evangelia Patrinos is fatal to the plaintiff's case to the extent that absolution from the instance must be granted at the close of the plaintiff's case. I am of the considered view that the plaintiff's claims are premised on the fact that the late Dr John Joseph Manolakakis did not author the disputed Will. As a consequence of that, the court is being asked to declare that he died intestate. 

The facts placed before the court, at the close of the plaintiff's case, certainly cast a lot of doubt about the validity of the disputed Will. I am alive to the fact that the court may never know who actually authored the Will but the evidence before the court establishes a prima facie case.

The court must, secondly, determine whether the provisions of section 6(6) of the Wills Act [Chapter 6:06] referred to…, precludes the plaintiff from mounting an application challenging the validity of the Will.

The provisions are certainly not peremptory and there is no provision that a litigant who seeks a declaration that a Will is invalid ought to have first complied with the provisions of section 6(6) of the Wills Act [Chapter 6:06]. 

I am satisfied that the plaintiff properly approached the court….,.

I am therefore satisfied that sufficient evidence has been led at the conclusion of the plaintiff's case upon which a reasonable court, acting reasonably and exercising its mind on the evidence led, may find for the plaintiff.

In the result, I make the following order.

1. The application for absolution from the instance is hereby dismissed.

In applying for absolution from the instance at the close of the defendant's case, counsel for the applicant submitted that given that the defendant's defence had been predicated on the question of fraud; that since none of the elements of fraud had been raised, let alone proved at the close of the defendant's case; that in fact the evidence having established that the sale and transfer of the property had been above board; the defendant's own claim for a reversal of the transfer having been dismissed and that the defendant having had the duty to begin, there was no need to put the plaintiff on its case and that it was proper to absolve it from the instance. She suggested that if the plaintiff was absolved from the defendant's case the plaintiff could then open its own case for eviction.

After I queried the propriety of her application and her intended course of action, the plaintiff's counsel clarified her position and said that if the plaintiff was absolved from the instance there would be no longer any issue for determination in the plaintiff's case because the plaintiff's case for eviction was predicted on the fact of its ownership of the property and that the only issue standing in the way was the defendant's defence of fraud but that this defence had no substance.

In terms of Order 49 Rule 437(1) if the burden of proof is on the plaintiff, he shall adduce his evidence first. If absolution from the instance is not decreed the defendant will then adduce his evidence. However, Rule 441 provides that when the right or obligation to begin lies on the defendant, the order of procedure should be read as if the defendant was the plaintiff and the plaintiff was the defendant. Therefore, the plaintiff in this case could properly apply for absolution from the instance at the close of the defendant's case since the duty or obligation to begin had lain on the defendant.

Where absolution from the instance is refused at the close of the plaintiff's case the defendant can go to his own case, can simply close it and still apply for absolution on the same evidence. But the considerations at that stage are different.

The test for absolution from the instance at the close of the plaintiff's case was laid down in the case of Gascoyne v Paul and Hunter 1917 TPD 170 which BEADLE CJ accepted as the locus classicus on the point. This was in the case of Supreme Service Station [1969] [Pvt] Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1.

In the Gascoyne v Paul and Hunter 1917 TPD 170 case the test was formulated as follows…,:

“At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the Court is: Is there evidence upon which a reasonable man might find for the plaintiff?...,. The question therefore is, at the close of the case for the plaintiff, was there a prima facie case against the defendant….,: in other words, was there such evidence before the Court upon which a reasonable man might, not should, give judgment against (the defendant)?”

In the Gascoyne v Paul and Hunter 1917 TPD 170 case the court noted the difference in the tests where the defendant closes his case without calling any evidence. The court formulated the test for absolution where the defendant closes his case without calling any evidence as follows…,:

“Is there such evidence upon which the Court ought to give judgment in favour of the plaintiff?”

The difference is in the expressions “might” and “ought to”. This difference was then amplified and explained by BEADLE CJ in the Supreme Service Station [1969] [Pvt] Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 case…,. At p4A – 5D the then learned CHIEF JUSTICE said:

“I think it is unfortunate that the magistrate's attention was not specifically directed to the manner in which he should have approached this case. It was never stressed that the test to be applied was might a reasonable court give judgment for the plaintiff? No attempt was made to elaborate what the word 'might' meant in this context, and it is as well that I should do so now. The locus classicus of the cases dealing with the procedure of absolution from the instance is the old Transvaal case of Gascoyne v Paul and Hunter 1917 T. P. D. 170…,. Gascoyne's case stresses that it is perfectly competent for a court to refuse an application for absolution from the instance when the application is made at the close of the plaintiff's case but to grant it if the defendant then promptly closes his case and renews the application without calling any evidence at all. There is no inconsistency in two such diametrically opposed orders, though the evidence before the court in each application is identical.

The reason why there is no inconsistency is because the test to be applied when application is made before the defendant closes his case is 'what might a reasonable court do?'; whereas the test to be applied when the application is made after the defendant has closed its case is 'what ought a reasonable court do?'. 

“The distinction here between 'might' and 'ought' in this context is an important one. It must be assumed that any judgment which a court 'ought' to give must be the correct judgment, as no court 'ought' to give a judgment which is incorrect. Once it is accepted that a judgment which a court 'might' give may differ from that which it 'ought' to give, it is clear that the judgment which it 'might' give and which differs from the judgment which it 'ought' to give must be an incorrect judgment. As a matter of logic, therefore, in considering what a reasonable court 'might' do, allowance must be made for its making a reasonable mistake and giving an incorrect judgment…,. The test, therefore boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?”

BEADLE CJ further pointed out that the practice in the South African courts, and ours, was always that in the case of doubt as to what a reasonable court “might” do, a judicial officer should always lean on the side of allowing the case to proceed. He also pointed out that a defendant who closes his case without giving evidence risks having an inference being drawn against him from his failure to give evidence contradicting that of the plaintiff.

The test on absolution from the instance, as formulated in Gascoyne v Paul and Hunter 1917 TPD 170, has been followed in numerous other cases. HERBSTEIN AND VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3^rd ed…, state that in view of the principles on absolution from the instance, a trial court should be very chary of granting absolution at the close of the plaintiff's case. JUTA J's remarks in Theron v Behr 1918 CPD 443…, which were quoted with approval by SUTTON J in Erasmus v Boss 1939 CPD 204…, by BEADLE CJ in the Supreme Service Station [1969] [Pvt] Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 case…, SMITH J in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)…., and MATIKA J in Bailey NO v Trinity Engineering (Pvt) Ltd & Ors 2002 (2) ZLR 484 (H).., were to the effect that the practice is that judges are very loath to decide upon questions of fact without hearing all the evidence.

As was stated in the Supreme Service Station [1969] [Pvt] Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 case…, and followed in the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) and that of Bailey NO v Trinity Engineering (Pvt) Ltd & Ors 2002 (2) ZLR 484 (H)…, a defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance. I should say the same applies to a defendant, or in this case, the plaintiff, who might be unwilling to take the witness' stand. It should not shelter behind the procedure of absolution from the instance.

In this case, the plaintiff took a calculated risk to seek absolution at the close of the defendant's case. Despite the query that I raised with its counsel regarding her intended course of action should I grant absolution the plaintiff did not seek to close its case even though she made submissions to the effect that absolution at that stage would effectively mean the end of the case as there would be nothing else for plaintiff to say in support of its case for eviction. I say the plaintiff was taking a risk because it is the principle of absolution from the instance that the onus is higher where the application is made at the close of the plaintiff's case than where it is made after all the evidence has been led. At p5F–G BEADLE CJ, in the Supreme Service Station [1969] [Pvt] Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 case…., said:

“…, the onus on a defendant who applies for absolution from the instance before closing his case is greater than the onus placed upon him when he applies for absolution from the instance after closing his case…,.”

Furthermore, it is the practice in our courts to lean more in favour of deciding questions of fact after all the evidence has been led. However, every case depends on its own special set of facts. In the present case, I am satisfied that the risk that the plaintiff took in applying for absolution from the instance at the close of the defendant's case, and without closing its own case, was well-taken. Even if I were to apply the more stringent test of what “ought” a reasonable court do as opposed to what “might” a reasonable court do, and even bearing in mind that the practice in our courts is to lean more in favour of hearing all the evidence before deciding on questions of fact, I still come to the conclusion that the plaintiff is entitled to be absolved from the instance.

The special circumstances of this case are that the plaintiff's cause of action against the defendant was predicated purely on its ownership of the property. An owner of a property is entitled to the full enjoyment of the property, unless, by agreement or operation of the law, there has been a diminution of that right. In the judgment on prescription aforesaid I highlighted that the registration of a real right in the Deeds Office protects the holder and the public alike. Once a real right has been registered it becomes enforceable against the world at large: see HARRY SILBERBERG, The Law of Property, Durban Butterworths, 1975….,. Therefore, in this case, unless there is established a superior right to deprive it of its right to the full enjoyment of the property, the plaintiff is plainly entitled to recover possession of the property.

The defendant's sole ground for resisting the plaintiff's claim for eviction was predicated on the question of fraud. It was her defence that the transfer of ownership in 1999 had been fraudulent. But that defence completely evaporated once she took the witness' stand. Even her counsel implored her to pinpoint  the time and place at which the fraud might have taken place, from the time that the magistrate had given judgment in favour of the City of Kwe Kwe against the late Muringani way back in 1995; the time when the Messenger of Court had sold the property by public auction; the time when the magistrate had confirmed the sale; the time when the late Muringani had challenged the auction price; the time when the magistrate had directed a sale by private treaty; the time when the late Muringani had unsuccessfully challenged the new price; the time when the magistrate had confirmed the new price and had directed the registration of transfer; the time when the Messenger of Court had signed the transfer papers; the time when the conveyancers, Danziger & Partners, had caused the registration of transfer, and finally, to the time when the Registrar of Deeds had registered the transfer in the Deeds Office.

She could not say where or when or by whom the fraud could have been committed.

In some of her papers, the defendant had claimed rights of occupation until the “dispute” had been resolved. She said she was the surviving spouse of the late Muringani and the executrix dative to his estate. This was not the bulwark of her defence. But, again, this other ground also evaporated once she took the witness' stand. The certificate of authority from the Master's office that had given her the limited authority to take transfer of the property was set aside with her consent. The transfer to herself was stopped with her consent. She had been fully represented in those proceedings. The property had been registered in the sole name of the late Muringani….,.

In Limited Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) it was stated:-

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him. See Supreme Services Station 1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR (a) at 5 D-E; Laurenco v Raja Laundry (Pvt) Ltd 1984 (2) ZLR (S) at 158 B-E.”

The above is the law governing an application of this nature, and, indeed, as submitted by both defendants, I find nothing “on which a court might make a reasonable mistake and give judgement for the plaintiff.”

The plaintiff has dismally failed to present a prima facie case before the court.

Although, reluctantly, the plaintiff's counsel conceded to the above finding. I say reluctantly because of the contradictory nature of the submission made at the end of her Heads of Argument. In paragraph 5 of her Heads of Argument, counsel for the plaintiff submits, in part, as follows:-

“It is humbly submitted that the essential elements of the Plaintiff's claim have been proved on a balance of probabilities. Absolution from the instance will not be competent in the circumstances. Proceeding to find that the Plaintiff have failed to establish essential element to his claim, with respect, will be undue to Plaintiff as Defendant's admission was by law conclusive of the issue of who made false report and what was contained in the report. See Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC10/11. Plaintiff submits that he did not bear any onus to prove his arrest and reasons thereof in light of 1^st defendant's admission. 

In Supreme Services Station 1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR A, the court held that there are silent features a court should bear in mind and exercise caution over as regards applications of this nature. BEADLE CJ had this to say;

“The court should bear in mind that the defendant has not yet given evidence and cross examined on it. If the plaintiff has made some case for the defendant to answer and the defence is something peculiarly within knowledge of defendant, justice demands that he should be heard…,.”

Counsel for the plaintiff then goes on to say:-

“The issue that remains is whether the Plaintiff was detained by the Police and whether he sustained injuries from police holding cells. The evidence of the Plaintiff is far from satisfactory. It is with heavy heart that the same is submitted for plaintiff as the Plaintiff's action cannot be supported.” …,.

All in all, given the foregoing, the application for absolution from the instance has merit. That disposes of the main matter before the court….,.

I therefore order as follows:-

1. The application for absolution from the instance by both defendants be and is hereby granted;

2. The plaintiff's claim be and is hereby dismissed; and

DISPOSITION

Having regard to all of the foregoing, but subject to what I have stated above in connection with the truck hire contract, it is reasonably clear that the appellant has a valid cause of action by virtue of the agreed stated account upon which his claim for salary and allowances is predicated. Furthermore, he is entitled to payment of the amounts claimed in the absence of countervailing evidence in rebuttal from the respondent. It follows that the court a quo erred in granting absolution from the instance in respect of all of the appellant's claims without putting the respondent to its defence.

In the result, the appeal is allowed with costs and it is ordered that:

1. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“The application for absolution from the instance is dismissed with costs.”

This is an appeal against a decision of the High Court in terms of which the appellant's discharge by the magistrate at the close of the State case was set aside and the matter remitted to the magistrate for continuation of trial.

The background to this matter is that the appellant was arraigned before the Regional Magistrate at Gweru, on a charge of bribery, as defined in section 170 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], alternatively, extortion, as defined in section 134 of the same Act. She pleaded not guilty. The State led its evidence, and, after the closure of the State case, the defence made an application for the discharge of the appellant. The application was granted by the Regional Magistrate who found the appellant not guilty and acquitted her.

The Chief Law Officer in the Attorney General's Office wrote a letter to the Registrar of the High Court in Bulawayo requesting;

(a) That the record of proceedings be placed before the reviewing judge for consideration;

(b) That the decision by the magistrate be set aside; and

(c) That the trial be ordered to start afresh before a different magistrate.

In a review judgment, in HB21-10, the High Court held that the trial magistrate had misdirected herself in discharging the appellant at the close of the State case in circumstances where the State had proved a prima facie case against the appellant. It made the following order:

“1. The discharge of the accused at the end of the State case be and is hereby set aside.

2. The matter is referred back for the continuation of the trial.”

An application was made to the High Court, sitting at Harare, by the appellant's legal practitioners, seeking the setting aside of the judgment in HB21-10. The application is said to have been dismissed on the basis that it ought to have been made in Bulawayo.

The appellant was subsequently arrested and brought before the Gweru Magistrates Court on 2 October 2012 where a trial de novo was commenced before a different magistrate and prosecutor. These fresh proceedings were then set aside subsequent to an urgent chamber application that was filed with the High Court. Thereafter, a judge of the High Court granted condonation for the late noting, by the appellant, of an appeal against the judgment in HB21-10. The appellant further states, in her heads of argument, that her prosecution before yet another magistrate, sitting at Gweru, has been stayed pending the determination of this appeal whilst she is on remand. The full circumstances of this allegedly pending trial are, however, not clear on the papers.

The appellant now appeals against the High Court decision in HB21-10 on the following grounds:

1. The Honourable Court a quo erred and grossly misdirected itself in assuming jurisdiction in a matter that it did not have jurisdiction over.

2. The Honourable Court a quo erred in treating a letter from the Attorney General's Office as an application for review when it did not comply with the law and proceeded to review the matter when, in fact, there was no service on the appellant and in the absence of any submissions from her.

3. The Honourable Court erred and grossly misdirected itself in overruling the findings of fact of the trial magistrate, Mrs Pise, sitting at Gweru Magistrates Court, when there were no allegations by the State of any gross misdirection on the facts by Mrs Pise which could have warranted the Court's interference.

The appellant prays for the appeal to be allowed with costs and for the order of the High Court in HB21-10 to be set aside and substituted with an order that:

“The appellant remains acquitted, as per the ruling of Her Worship Mrs Pise under Case Number CRB 571/09.”

The grounds of appeal raise one central issue. The issue is whether the High Court has jurisdiction to intervene in the circumstances of this case.

The appellant submitted that the only recourse that was open to the respondent was an appeal in terms of section 198 of the Criminal Procedure and Evidence Act [Chapter 9:07]. That section reads, in relevant part, as follows:-

“198 Conduct of trial

(1)…,.

(2)…,.

(3) If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.

(4) If the Attorney General is dissatisfied with a decision of a Magistrate in terms of subsection (3), he may, with the leave of the Judge of the High Court, appeal against the decision to the High Court.”

It was the appellant's submission that the State could only act in terms of the above section, and, consequently, that the court a quo proceeded to assume authority in circumstances where it did not have the authority to do so as the letter that was written by the respondent was not in accordance with the said section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

In response, the respondent submitted that the provisions of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] do not preclude the State from seeking a review of proceedings in terms of section 29 of the High Court Act [Chapter 7:04]. The respondent further submitted that the High Court has inherent powers of review in terms of section 29 of the High Court Act [Chapter 7:06]. Furthermore, that in terms of section 29(4) of the High Court Act [Chapter 7:04], the High Court, or a judge thereof, may exercise such review powers whenever it comes to its or his or her notice that any criminal proceedings of any inferior court are not in accordance with real and substantial justice.

Section 29(4) of the High Court Act [Chapter 7:06] provides:

“Powers on review of criminal proceedings

(1)…,.

(2)…,.

(3)…,.

(4) Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court, or a judge of the High Court, that any criminal proceedings are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court, or the judge, for review.”…,.

Section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that if the Attorney General is not satisfied with the decision of a magistrate, he may, with the leave of a judge of the High Court, appeal against the decision to the High Court.

That the Attorney General was dissatisfied appears to be obvious from a reading of the papers.

However, the letter written by, or on behalf of, the Attorney General to the Registrar of the High Court, Bulawayo, does not purport to be an appeal to the High Court as envisaged in section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The letter does not seek to institute or trigger an appeal procedure. It specifically seeks a review by a judge of the High Court of the proceedings before the magistrate at Gweru. The letter, having come to the attention of the judge of the High Court, the  proceedings in issue came “to the notice of the High Court or a judge of the High Court”, and, once that happens, section 29(4) of the High Court Act [Chapter 7:06] empowers the High Court, or a judge thereof, to exercise review powers.

The powers conferred by section 29(4) of the High Court Act [Chapter 7:06] are exercised “subject to rules of court.”

The court is not aware of, nor was the court's attention drawn to, any Rule of this court in terms of which such review powers ought not to have been exercised in casu.

Furthermore, section 29(4) of the High Court Act [Chapter 7:06] specifically provides that such review powers may be exercised notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review. The Act does not prescribe the form of the notice. The manner in which the proceedings come to the attention of the High Court or a judge of the High Court is not regulated and is thus of no relevance. The fact is that there was sufficient and legitimate cause for the High Court to invoke its powers under section 29 (1) and (2) of the High Court Act [Chapter 7:06].

The High Court thus properly assumed jurisdiction on the basis of the alleged gross irregularity.

The Attorney General's letter to the High Court Registrar states, in part:

“In discharging the accused at the close of the State case, the magistrate erroneously applied the wrong test. She made reference to the fact that an accused's guilt has to be proved beyond reasonable doubt. She also made reference to the State's failure to call witnesses i.e the prosecutor and the investigating officer in the case in which the State witness was an accused. However, the State is not compelled to call a potentially hostile witness.”

The letter further states:

“The trial court had committed a fundamental misdirection in deciding that a State witness was not worthy of belief by accepting the version put by the accused in cross examination as evidence.”

The above factors set out by the Attorney General pointed to an irregular decision and laid the basis for review. There was therefore nothing amiss in the judge, or the High Court, reviewing the proceedings or decision that had come to his or its notice. The magistrate adjudged the State case against the threshold of proof beyond a reasonable doubt when she ought to have asked the question whether a prima facie case had been established. The magistrate also fell into error in accepting the version put forward by the appellant during cross-examination of State witnesses. For these reasons, the Attorney General contended that the decision to discharge the appellant was irregular and warranted the interference of the High Court by way of review. No other provision of this Act, or any other law, that would preclude the exercise of review powers in terms of section 29 of the High Court Act [Chapter 7:06], by a judge of the High Court or by the High Court itself has been brought to our attention. The fact that the proceedings, or decision, came to their notice by way of a letter authored by, or on behalf of, the Attorney General is of no consequence insofar as the exercise of the said review powers is concerned.

For the above reasons, the appeal has no merit. The court a quo properly assumed jurisdiction.

Section 29(2)(b)(iii) of the High Court Act [Chapter 7:06] becomes pertinent. It provides:

“29 Powers on review of criminal proceedings

(1)…,.

(2) If, on a review of any criminal proceedings of an inferior court or tribunal, the High Court considers that the proceedings -

(a)…,.

(b) Are not in accordance with real and substantial justice, it may, subject to this section -

(i)…,.; or

(ii)…,..; or

(iii) Set aside or correct the proceedings of the inferior court or tribunal, or any part thereof, or generally give such judgment or impose such sentence or make such order as the inferior court or tribunal ought in terms of any law to have given, imposed or made on any matter which was before it in the proceedings in question; or…,.” …,.

Section 29(2)(b)(iii) of the High Court Act [Chapter 7:06] gives the High Court power to correct any part of proceedings of an inferior court or tribunal.

BEADLE CJ said in Supreme Service Station 1969 (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 5 (A)….,;

“If the defence is peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance.”

BEADLE CJ went further and said:-

A prima facie case is a case where one can say there has been shown, on the evidence led, a probable cause to put the accused on his defence.

Generally, probable cause or a prima facie case is made where all the essential elements of the offence charged or any other offence on which the accused may be convicted have been proved on a balance of probability. At this stage, the test is not whether there is proof beyond reasonable doubt but whether, on a balance of probabilities, it can be argued that the essential elements constituting the offence charged or any other offence have been proved.

The test for absolution has been stated in a number of cases. In United Air Charterers v Jarman 1994 (2) ZLR 341 (S)…, it was said that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence could or might (not should or ought to) find for him.”

The same principle was stated in another way in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1( A) 5D. The court stated:

“The test therefore boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S)…,.; Nestoros v Innscor Africa Ltd 2007 (2) ZLR 267 (H)…,.; Manyange v Mpofu & Others 2011 (2) ZLR 87 (H)…, where Patel J…, made the point that:

“In principle, a reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance. And, in practice, the courts are loath to decide upon questions of fact without hearing all the evidence from both sides, and have usually inclined towards allowing the case to proceed. See Theron v Behr 1918 CPD 443 at 451; Erasmus v Boss 1939 CPD 204 at 207; Supreme Service Station (Pvt) Ltd (1969) v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5-6. Moreover, at this stage of the trial, it is nor pertinent to evaluate the weight of the evidence adduced or the preponderance of probabilities, save where such findings are manifest from the evidence already heard. See Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (TK) at 185.”

And Efrolon (Pvt) Ltd v Muringani (2) 2013 (1) ZLR 309 (H)…,.

BEADLE CJ…, in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1( A)…, said that:

“…, rules of procedure are made to ensure that justice is done between the parties, and, so far as possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind procedure of absolution from the instance.”

See also Munhuwa v Mhukahuru Bus Services 1994 (2) ZLR 382 (H)…,.

In Nestoros v Innscor Africa Ltd HH73-07…, the relevant test to be applied was considered as follows:

“The approach to be adopted in an application for absolution from the instance was succinctly expounded by GUBBAY CJ in United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) at 343, as follows:

'The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him. See Supreme Svc Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B-E.'

Moreover, in considering an application for absolution, the court should lean in favour of continuing the case rather than dismissing it. See Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (HC) per SMITH J at 552-553.”

See also Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S)…, where the above approach was reiterated by the Supreme Court.

The test to be applied is not whether the evidence for the plaintiff establishes what would finally be required to be established to obtain judgment. It is whether the plaintiff has made out a prima facie case against the defendant on the basis of which the court could or might find for the plaintiff.

See Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) per DUMBUTSHENA CJ…,.

In principle, a reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance. And, in practice, the courts are loathe to decide upon questions of fact without hearing all the evidence from both sides, and have usually inclined towards allowing the case to proceed.

See Theron v Behr 1918 CPD 443…,.; Erasmus v Boss 1939 CPD 204…,.; Supreme Service Station (1969) Pvt Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A)…,.

Moreover, at this stage of the trial, it is not pertinent to evaluate the weight of the evidence adduced or the preponderance of probabilities, save where such findings are manifest from the evidence already heard. See Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (Tk) at 185.

Counsel for first defendant, indeed, applied for absolution from the instance at the close of the plaintiff's case on account of his arguments on prescription.

I refused to grant absolution particularly in light of the plaintiff's exhibits as it was still very murky to me why the first defendant himself had signed and penned the 1998 agreements if the matter had prescribed. The plaintiff's claim that she had persistently tried to enforce her claim needed to be put to factual scrutiny through the first defendant's own evidence to assess the prescription argument.

The definition of prima facie is literally “at first glance”, or, “on the face of it”, which means, on initial examination or consideration. It means that the plaintiff's case must be clear from the first impression, legally sufficient, or sufficient in law to establish a case or a fact, unless disproved. In my view, establishing a case “at first glance” implies that the degree of scrutiny of the evidence adduced by the plaintiff is of a lower standard at this stage….,.

Let us turn to the law for guidance on what ought to happen when a defendant applies for discharge at the close of the plaintiff's case.

It is accepted that after a plaintiff has closed its case, a defendant, before commencing his own case, may apply for dismissal of the plaintiff's claim. Should the court accede to this application, the judgment will be one of 'absolution from the instance'. See HERBSTEIN and VAN WINSEN, The Civil Practice of the Supreme Court of South Africa 4th ed…,. A decree of absolution from the instance is derived from Roman Dutch law. It is the appropriate order to make when, after all the evidence, the plaintiff has not discharged the ordinary burden of proof. If, at the end of the plaintiff's case, there is insufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution. See LH HOFFMAN, DT ZEFFERT, The South African Law of Evidence 4th ed…,.

It has also been said that the term 'absolution from the instance' is used to describe the finding that may be made at either of two distinct stages of trial. In both cases, it means that the evidence is insufficient for a finding to be made against the defendant. The defendant will be 'absolved from the instance', if, upon an evaluation of the evidence as a whole, the plaintiff's burden of proof has not been discharged. See SCHWIKKARD VAN DER MERWE, Principles of Evidence 3rd ed…,.

Absolution from the instance means that the plaintiff has not proved a case against the defendant; and it is to be distinguished from a positive finding that no claim exists against the defendant.

Where a defendant has been absolved from the instance, the plaintiff may re-institute the action provided that it has not prescribed. The rationale behind absolving a defendant from the instance is that, due to the insufficiency of the plaintiff's evidence and failure to establish an essential element of its claim, the defendant should be spared the trouble and the expense of continuing to mount a defence to a hopeless claim.

In the case of Lourenco v Raja Dry Cleaners & Steam Laundry (Private) Limited 1984 (2) ZLR 151 (S)…, the Supreme Court had occasion to discuss the various cases which ought to be relied on in determining an application for absolution from the instance. The first case to be referred to be that of Mazibuko v Santam Insurance Co Ltd and Anor 1982 (3) SA 125 (AD)…, where the court said…,:

"In an application for absolution, made by the defendant at the close of the plaintiff's case, the question to which the Court must address itself is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff; in other words, whether the plaintiff has made out a prima facie case.”

The next case referred to by the Supreme Court is that of Gascoyne v Paul and Hunter 1917 TPD 170 where the court said…,:

"The question therefore is, at the close of the case…, was there a prima facie case against the defendant, Hunter; in other words, was there such evidence before the Court upon which a reasonable man might, not should, give judgment against Hunter?”…,..

The Supreme Court then discussed the celebrated case of Supreme Service Station (1969) (Private) Limited v Goodridge (Private) Limited 1971 (1) RLR 1…, as one of the leading cases on the question of when absolution from the instance ought to be granted at the close of the plaintiff's case - before the defence case is opened.

It is trite that the court cannot, mero motu, consider whether absolution must be granted. It is an option which is available to the defendant on application. It was held, in that case, that when an application for absolution from the instance is made at the end of the plaintiff's case the test is: what might a reasonable court do, i.e. is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff; if the application is made after the defendant has closed his case the test is: what ought a reasonable court do….,.

The difference in the two tests, in my view, is in the differing levels of proof required in order to discharge the onus on any party who will have made any allegation, be it in the plaintiff's claim, or in the defence proffered by the defendant. At the close of the plaintiff's case, the burden of proof on the plaintiff is to make a prima facie case (on the face of it). The standard of proof is lower (what might the court do - the court may or may not). At the close of the defendant's case, in my view, the standard of proof is higher. Having heard the plaintiff and the defendant's evidence, the court must decide what the balance of probabilities favors; it must decide what it ought to do - not what it may or may not do. In deciding what a court may or may not do, there is an implication that the court may make an incorrect decision because, at the close of the plaintiff's case, it will not have heard all the evidence.

Counsel for the plaintiff referred the court to two recent cases of the High Court which were instructive and persuasive. The first case, Nobert Katerere v Standard Chartered Bank Zimbabwe Limited HB51-08…, exhorted a court to be:

“…, chary of granting absolution at the close of the plaintiff's case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not, at this stage, evaluate and reject the plaintiff's evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff's case may be granted if the plaintiff has failed to establish an essential element of his claim - Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26 (A); Sithole v PG Industries (Pvt) Ltd HB47-05.”

The second case that counsel for the plaintiff referred the court to was that of Jackson Muguti v Wilson Sunduza HH45-11.

It has been said that Judges should be loath to decide upon questions of fact without hearing all the evidence on both sides. See Theron v Bher 1918 CPD 443, JUTA, J…,.

In the case of United Air Charters v Jarman 1994 (2) ZLR 341 (S), a Supreme court case, it was said that the test for determining whether a defendant should be absolved from the instance is now settled in this jurisdiction. The test was set out…, as follows:

“…,. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”…,.

On the question of the discharge of the burden of proof in a civil case, especially in an application for absolution from the instance, see Peter Lewis Bailey NO v Trinity Engineering (Private) Limited, Aguy Clement Georgias & Harry. P. Pilley HH181-02 (an application for absolution from the instance which quoted Supreme v Fox & Goodridge with approval); and Elfrolou (Private) Limited v Muringani HH122-13 (an application for absolution from the instance in which the applicable test is discussed at length).

The appellant (then plaintiff) sued the respondent (then defendant) in the court a quo for ejectment from the premise at Number 8 Bindura Township in the district of Bindura commonly known as No.8 Main Street, Bindura or simply Bindura Service Station, payment of US$3,400= being the amount due in respect of the agreed rentals, holding over damages at the rate of US$800= per month from 1 August 2014 to the date of vacation, 5% interest on all the amounts and costs.

At the close of the defendant's case the defendant applied for absolution from the instance which application was granted by the magistrate.

The plaintiff appealed against that judgment.

On 21 January 2016 this court allowed the appeal by the appellant against the court a quo's dismissal of the appellant's claim against the respondent at the conclusion of trial. The following order was granted:

(a) The appeal be and is hereby allowed with costs.

(b) The respondent and all those claiming occupation through him be and are hereby ejected from the premises at Number 8 Bindura Township in the district of Bindura, commonly known as No. 8 Main Street, Bindura or simply Bindura Service Station.

(c) The defendant be and is hereby ordered to pay the sum of US$3,400= being the amount due in respect of the agreed rentals and costs as at 10 June 2014 with interest thereon at the rate of 5% per annum calculated from 1 July 2014 to date full payment.

(d) The defendant be and is hereby ordered to pay holding over damages at the rate of US$800= per month from 1 August 2014 to the date of vacation with interest there at the rate of 5% per annum reckoned from the date that each amount becomes due and payable.

(e) The defendant shall pay the costs of suit on a legal practitioner and client scale.

The background facts to this matter, which facts are common cause, are as follows:

On 4 January 2013, the appellant entered into a lease agreement with a company called Kadkoy Motors (Pvt) Ltd (hereinafter called “the lessee”) for the lease of Stand No.8 Bindura Township in the district of Bindura, commonly known as No.8 Main Street, Bindura or Bindura Service Station. After a period of about three (3) months, the lessee, Kadkoy Motors (Pvt) Ltd, gave up the premises due to non-viability of its business. Upon taking possession of the premises, the appellant discovered that the previous lessee had placed various sub-tenants in the premises who included the respondent.

The appellant engaged the respondent with a view to negotiate a dignified exit conceding to their request that they vacate the premises by 31 December 2013 but the respondent was not co-operative. The appellant issued summons for the respondent's eviction on the basis that he was an illegitimate occupant who was not paying rent. The appellant further sought payment of US$3,900= as payment for the respondent's occupation and holding over damages at US$1,300= per month from January 2014 until the respondent vacated, and, further, claimed interest and costs.

The matter proceeded up to pre-trial conference stage where the parties negotiated and signed a Deed of Settlement on 10 June 2014. The document stated, inter alia, that the respondent was to vacate the premises on or before 31 July 2014 and set amounts to be paid by the respondent. The Deed of Settlement was filed and is part of the record.

For a while, the respondent obliged with the terms stated in the Deed of Settlement, as agreed, by paying money to the appellant for its occupation pending its vacation of the property and then stopped. When the respondent stopped paying for its occupancy, no consent order had been granted by the court as per the Deed of Settlement. The appellant finally set the matter down for trial for the conclusion of the dispute.

The issues that were up for determination were as follows:

1. Whether or not the defendant should be evicted from the premises he is occupying.

2. Who should bear the costs.

At trial, the plaintiff's evidence remained as outlined earlier persisting with its claim.

The defendant, whilst acknowledging that it has no lease agreement at all with the appellant apart from an arrangement to occupy the premises done through the appellant's manager, his defence and evidence was that the appellant could not evict him as it is not the owner of the premises. Hastening to add that at the close of the plaintiff's case the defendant made an application for absolution from the instance which application was refused. Trial proceeded, and, at the end thereof, once again, the defendant applied for absolution from the instance, and, in granting same, the magistrate sitting in the court a quo remarked;

“I should have granted absolution from the instance at the close of the plaintiff's case.”

Aggrieved by this finding, the appellant appealed against the decision. The grounds of appeal were stated as follows:

“1. The court a quo also erred in ordering absolution from the instance without assessing the evidence led by the parties for the eviction of the defendant notwithstanding that there was clear and sufficient evidence to warrant ejectment of the defendant and all those claiming occupation through him from the premises at Stand Number 8 Main Street, Bindura.

2. The court a quo erred in finding that the appellant's witness should have produced authority to represent it in court notwithstanding that this is not a requirement at law.

3. The court a quo also erred in finding that the appellant should have proved its ownership of the premises in question in order to be able to evict the defendant from the premises notwithstanding the fact that this is not a requirement at law for a person who was a sub-tenant where the main tenant has vacated the premises.

4. The court a quo erred in finding that the appellant should have called the evidence of its Business Manager when such evidence was totally unnecessary in view of the established and undisputed facts.

5. The court a quo also clearly erred in dismissing the appellant's claim without determining the evidence adduced to the court by the defendant.

6. The court a quo also erred in failing to appreciate the fact that the Deed of Settlement signed by the parties, itself not withdrawn, constituted a compromise agreement that should have been upheld.

7. The court a quo erred in ruling that no prima facie case had been established notwithstanding the fact that he already found, in dismissing the earlier application for absolution from the instance, that there was a prima facie case.

8. The court a quo also erred in failing to deal with the losses being suffered by the appellant as a result of the fact that the respondent is simply occupying the premises without paying anything. As a result, he effectively perpetuated the loss being suffered by the appellant by granting absolution from the instance.”

Despite the several grounds of appeal, which we found repetitive, the pertinent issue for determination is whether or not, in the circumstances of this case, the court a quo misdirected itself in granting absolution from the instance at the close of the defendant's case.

The leading case on the question of absolution from the instance is Supreme Service Station (1969) Private Limited v Goodridge Private Limited 1971 (1) RLR 1. In this case, BEADLE CJ referred to and accepted that the locus classicus case on absolution from instance is Gascoyne v Paul Hunter 1917 TPD 170. Deriving therefrom, BEADLE CJ clearly stated that it is perfectly competent for a court to refuse an application for absolution from the instance when the application is made at the close of the plaintiff's case but to grant it if the defendant promptly closes his case and renews the application without calling any evidence. This, he said, would not create any inconsistency because:

“The test to be applied when application is made before the defendant closes his case is 'what might a reasonable court do?'; whereas, the test to be applied when the application is made after the defendant closes its case is 'what ought a reasonable court do.'”

He further explained, in Supreme Service Station (1969) (Private) Limited v Goodridge (Private) Limited 1971 (1) RLR 1 at F-H, that:

“The distinction here between 'might' and 'ought' in this context is an important one. It must be assumed that any judgment which a court 'ought' to give must be the correct judgment, as no court 'ought' to give a judgment which is incorrect. Once it is accepted that a judgment which a court 'might' give may differ from that which it 'ought' to give, it is clear that the judgment which it 'might' give and which differs from the judgment which it 'ought' to give must be an incorrect judgment.”

In the court a quo, both parties had given evidence; thus, upon application by the respondent for absolution from the instance, after it had closed its case (the defence case), the correct test was what judgment it 'ought' to give which, in essence, has to be a correct judgment.

Where all evidence has been led, there is no room for error.

This is different from a scenario where the application is made at the end or close of the plaintiff case where the court, in applying the test “what might a reasonable court do” there is allowance of making a reasonable mistake and come up with an incorrect judgment. Where the defendant has closed his case, the court has to fully assess the evidence in its totality, fully conscious of the burden now upon it to weigh the probabilities raised by the adduced evidence before it. The test becomes stringent - what 'ought' a reasonable court do.

It is common cause that the magistrate in the court a quo bemoaned his failure to grant the application for absolution at the close of the plaintiff's case. From the reasons of judgment, as appearing on record, the court a quo blatantly applied the wrong test given that a full trial had ensued and the application was made after the defendant closed its case.

The Gascoyne v Paul Hunter 1917 TPD 170 case was clearly misconstrued as the court considered the wrong question; “Is there evidence upon which a reasonable man might find for the plaintiff?” Nowhere in the record did the magistrate refer to the question “what ought a reasonable court do” - the applicable test in the circumstances.

In fact, there seems to have arisen a mix up and the court a quo seems not to have been conversant with the test to be applied in the different scenarios. Therefore, by applying the wrong test the court misdirected itself, as reflected by its finding that “there is no prima facie case” - a pronouncement made at the end of trial.

Since the court applied a wrong test it arrived at a wrong decision in granting absolution from the instance when the respondent closed his case. In that regard, the appeal ground raised by the appellant has merit and is upheld.

It is pertinent to note that in applying the test on absolution from the instance at the close of the defendant's case, the court is not only looking at the evidence alone, it has to consider the law and apply same to the facts.

5. Whether the court a quo erred by not granting absolution from the instance at the close of plaintiff's case (herein respondent)

The respondent (then plaintiff) led evidence before the court a quo to the effect that the appellant (then defendant) had signed a surety agreement on behalf of one SM Tyres (Pvt) Ltd and produced the surety document which had been signed by the appellant in support of its claim. After leading its evidence, the respondent closed its case. The appellant applied for dismissal of the respondent's case on the basis that the respondent's claim had not been established as insufficient evidence had been led to prove that the surety agreement was binding on the appellant. It was submitted, on behalf of the appellant, that a plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could find for him.

The appellant argued that the respondent failed to show the link between the surety agreement presented in evidence and the marketing licence agreement upon which SM Tyres (Pvt) Ltd accrued the debt. Counsel for the appellant argued that the onus was on the respondent to prove its case on a balance of probabilities. As the respondent had failed to do so the appellant should have been granted absolution from the instance.

I was not persuaded that the respondent had failed to establish its case at the close of its case.

It is accepted that after a plaintiff has closed its case, a defendant, before commencing his own case, may apply for dismissal of the plaintiff's claim. Should the court accede to this application, the judgment will be one of 'absolution from the instance'. See CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa (4^th edn, Juta and Co Ltd)…,.

A decree of absolution from the instance is derived from Roman Dutch law. It is the appropriate order to make, when, after all the evidence is led, the plaintiff has not discharged the ordinary burden of proof. If at the end of the plaintiff's case there is insufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution. See LH HOFFMAN, DT ZEFFERT, The South African Law of Evidence (4^th ed)…, who notes the following:

“It has also been said that the term 'absolution from the instance' is used to describe the finding that may be made at either of two distinct stages of trial. In both cases, it means that the evidence is insufficient for a finding to be made against the defendant.”

It is trite that the court cannot mero motu consider whether absolution must be granted at the close of the plaintiff's case. It is an option which is available to the defendant, upon application.

When an application for absolution from the instance is made at the end of the plaintiff's case the test is: what might a reasonable court do; that is, is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

If the application is made after the defendant has closed his case, the test is: what ought a reasonable court do?

In deciding what a court may or may not do, there is an implication that the court may make an incorrect decision, because, at the close of the plaintiff's case, it will not have heard all the evidence.

In the case of Nobert Katerere v Standard Chartered Bank Zimbabwe Limited HB51-08, the court stated:

“The court should be extremely chary of granting absolution at the close of the plaintiff's case. The court must assume that, in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not, at this stage, evaluate and reject the plaintiff's evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance, at the close of the plaintiff's case, may be granted if the plaintiff has failed to establish an essential element of his claim - Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26 (A); Sithole v PG Industries (Pvt) Ltd HB47-05.”

Since the respondent was suing the appellant in his capacity as a surety, all that the respondent had to place before the court a quo was that it had a surety agreement which was signed by the appellant in which the appellant stood as surety for SM Tyres (Pvt) Ltd being the debtor for an amount that the appellant had guaranteed to pay to the respondent on SM Tyres' behalf in the event that the amount became owing and that the respondent was a creditor.

Such evidence was placed before the court a quo and that evidence, in my view, formed a reasonable basis for the court to find in the respondent's favour. The respondent had discharged its obligation as plaintiff in the proceedings a quo.

The finding of the court a quo, that where a surety challenges an agreement and makes an application for absolution from the instance at the close of plaintiff's case, that application cannot, from a practical standpoint succeed, because once the court is satisfied that a prima facie case was established the onus shifted to the appellant was, clearly correct. Whether or not the respondent's allegations were true could only be established by the court after the appellant led evidence to dispute the respondent's case. The court was satisfied that the respondent had placed the requisite evidence before the court.

In a civil case, the court has the duty to balance the scales of probabilities in favour of either the plaintiff(s) or defendant(s). In this particular case, the balance could only be struck after the court heard both sides of the story. In my view, granting the appellant absolution from the instance would have been improper. The appellant's application for absolution from the instance was not sustainable considering the evidence that has been placed before the court. It is common cause that the appellant's defence was that he had signed a surety agreement but it was not for SM Tyres (Pvt) Ltd but for “Limpopo Investments Company”. Under the circumstances, the court could not have asked the respondent to prove the appellant's defence on his behalf. It was the appellant's duty to prove his defence. It is trite, at law, that a party has to motivate their own defence….,.

It seems to me that the court a quo could not have granted the appellant's application for absolution from the instance given that the respondent had established a prima facie case.

At the close of the plaintiff's case, the defendant applied for absolution from the instance.

The test to be employed in deciding an application for absolution from the instance is well settled and was laid down in United Air Charters Ltd v Jarman 1994 (2) ZLR 341 (SC). A plaintiff will withstand such an application if, at the close of his case, there is evidence which a court, directing its mind to such evidence, could or might find for him. See also Katerere v Standard Chartered Bank Zimbabwe Limited HB51-08; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A); Lourenzo v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 for the same approach.

I dismissed the application after considering submissions from both parties.

The issue of onus exercised my mind. The law is that the onus of proving one's case in a matter involving a dispute over a surety agreement is on the one who seeks to rely on the suretyship deed. The position changes where a surety challenges liability for a debt based on a surety agreement he signed. In Langeveldt v Union Finance (4) SA 572 (W), the court discussed the subject of a surety seeking to be released from liability in terms of his suretyship agreement and held that the surety bears the onus of convincing the court that he did not intend to enter into the suretyship agreement in issue. That is the correct legal position. Where a surety seeks to avoid liability in terms of a surety agreement and challenges a surety agreement, the onus switches to him to show why he should not be bound by the surety agreement. He bears the onus of convincing the court that it was not his intention to enter into the agreement in issue.

Similarly, where a surety challenges a surety agreement and he makes an application for absolution from the instance at the close of the plaintiff's case, his application cannot, from a practical standpoint, succeed because of the reverse onus reposed on him. A defendant who applies for absolution from the instance at the close of the plaintiff's case has not had an opportunity to present his own case and defence at this stage of proceedings. Whether or not he has managed to discharge the onus on him can only be resolved after he has led his own evidence and canvassed fully his defence. His side of the story has to be heard first before a decision to dismiss the plaintiff's case is made, this, because of the onus resting on the surety.

The defendant's challenge to liability is that the surety document he signed, which the plaintiff seeks to rely on, was done for Limpopo Investments (Pvt) Ltd and not SM Tyres (Pvt) Ltd. The onus shifted onto him, the moment he raised this defence, to show that he did not sign the surety document for SM Tyres. It was mischievous of the defendant to apply for absolution from the instance at the close of the plaintiff's case.

I dismissed the application and allowed the matter to proceed to the defence case.

The test to be applied in granting absolution from the instance is settled in our jurisdiction. See United Air Charters (Pvt) Ltd v Jarman 1994 (2) 341 (S)…,.; Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S)…,.

In Munemo v Muswera 1987 (1) ZLR 20 (SC)…, McNALLY JA put the matter this way;

“…,. The judgment relied upon was not the judgment for the plaintiff, nor was it a judgment for the defendant…,. However, the judgment in 1979 was a judgment which read:

'The plaintiff's claim for ejectment is dismissed with costs.'

It is well established that such a judgment is in effect one of absolution from the instance. See Hassan v Billiat SC132-86 (not reported); Bulford v Bob White Service Station (Pvt) Ltd 1972 (2) RLR 224 (AD); Makayiseni v Musarurgwa 1947 SR 160 at 162.

The matter is succinctly put by Hoffman & Zeffertt op cit at p263 in the following words;

'The decree of absolution from the instance (or an order dismissing the plaintiff's claim) is specifically intended to the man the plaintiff to bring another action if he can find a better evidence to support his claim. Absolution can never found a cause for action estoppels.”

The defendant has applied for absolution from the instance at the close of the plaintiff's case.

The brief background facts of this matter are the following.

On 20 May 2004, the plaintiff caused summons and declaration to be issued out against the defendant claiming:

(1) Z$248,292=38 past medical expenses.

(2) Z$1,292,460= for future medical expenses.

(3) Z$6,000,000= for psychological injury, loss of general health and loss of amenities of life.

(4) Z$5,000,000= contumelia, humiliation and defamation.

(5) Z$115,136,000= for loss of pension benefit.

(6) Z$411,300,774= for loss of earning.

(7) Interest on all the above at the prescribed rate from the date of service of summons to date of full payment.

(8) Costs of suit.

According to the plaintiff, the claims arose from an incident which had occurred in about September 2000 where it was alleged that the plaintiff, as a train conductor, had charged a passenger an incorrect and lesser figure and converted the sum of Z$108= to his own use. The plaintiff was charged with misconduct and initially dismissed. The dismissal was later reversed and the plaintiff was retired on medical grounds.

The plaintiff then claimed damages under the heads referred to above.

The trial took a chequered route characterised by delays in prosecuting the plaintiff's claim, change of legal practitioners, and attempts at amendments. On 20 April 2015, after calling two witnesses, the plaintiff closed his case prompting the above-mentioned application by the defendant.

The application is premised on the provisions of Order 49 Rule 437(1) of the High Court Rules, 1971.

The requirements of granting of the absolution from the instance at the close of the plaintiff's case are now settled. The application is granted where the plaintiff's evidence is insufficient for a finding to be made against the defendant. The defendant must show that after the plaintiff has led all evidence in his case, the plaintiff's burden of proof has not been discharged. In other words, the defendant must show that there is no prospect that the plaintiff's case might succeed.

Sibanda v Chikumba HH92-14; Manyange v Mpofu & Ors HH162-11; and HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa (4^th Ed)…,.

The test on whether the court will grant absolution from the instance at the close of the plaintiff's case was laid down in Gascoyne v Paul Hunter 1917 TPD 170 and was accepted as a proper formulation of the test in our law in Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A) and its thus:

“Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?”

See also Dube v Dube 2008 (1) ZLR (H); Delta Beverages v Rusito SC42-13; Standard Chartered Finance (Zimbabwe) Ltd v Georgias & Anor 1998 (2) ZLR 547; and Bailey N.O. v Trinity Engineering (Pvt) Ltd 2002 (2) ZLR 484.

In Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A)…, BEADLE CJ stated:

“I must stress that the rules of procedure are meant to ensue justice is done between the parties, and, so far as it is possible, court should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant…, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.”

This formulation has been accepted in Dube v Dube 2008 (1) ZLR (H); Standard Chartered Finance (Zimbabwe) Ltd v Georgias & Anor 1998 (2) ZLR 547; Delta Beverages v Rutsito SC42-13; and Bailey N.O. v Trinity Engineering (Pvt) Ltd 2002 (2) ZLR 484.

Though used in a different context, the observation by MALABA DCJ in Mawarire v Mugabe & Ors CC01-13 is apposite when he said;

“…,. It is better to let people have access to the fountain of justice where they fail for reasons of their folly than have them blame the gatekeepers.”

In order to defeat an application for absolution from the instance at this stage of the trial, the threshold the plaintiff must cross is low. In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403…, it was set out as follows:

“When absolution from the instance is sought at the close of the plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff establishes what would be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff.”

Explaining this in ATW De Klerk v ABSA Bank Ltd & Ors SCA 176-02 SCHULTZ JA said:

“This implies that a plaintiff has to make out a prima facie case…, in the sense that there is evidence relating to all the elements of the claim…,.”

The defendant attacks the plaintiff's case on the ground that the plaintiff's claim was denominated in Zimbabwe Dollars and argues that the plaintiff has not shown the relationship between the Zimbabwe dollar and the United States dollar. Further, the defendant argues that a comparison of the original claims filed 20 May 2004 and the amendment granted on 23 January 2014 show that the original claims bear no relationship to the amended claims as evinced in the following table:

In other words, the plaintiff's latest amendment to United States dollars was not a conversion of his original claims in Zimbabwe dollars to United States dollars. The amendment was a complete substitution of the original claims by new claims, claims which bore no relationship to the original ones.

It is trite law that an application for absolution from the instance, at the close of the plaintiff's case, if successful, must have the effect of terminating the case completely. The procedure is not intended for the court to determine issues piecemeal – see Dube v Dube 2008 (1) ZLR (H).

Further, damages are either general or special, and different rules apply to general as opposed to special damages: The Quantum of Damages in Bodily and Injury Cases (3^rd Ed) by CORBETT, BUCHNAN and GAUNTLETT. At page 99, the learned authors correctly observed:

“In the case of damages which are capable of exact mathematical computation…, proper evidence establishing the loss…, must be tendered. Where, on the other hand, mathematical proof…, is in the nature of thing impossible, then provided that there is evidence that, pecuniary damages, in this regard has been suffered, the court must estimate the amount of the damages as best it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.”

In Minister of Defence and Anor v Jackson 1990 (2) ZLR 708 (SC), GUBBAY JA…, said the following on the daunting task confronting a judicial officer is assessing damages in personal injury cases;

“It must be recognized that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task, therefore, of assessing damages in personal injury is one of the most perplexing a court has to decide.”

See also Mbundire v Buttress SC13-11.

In casu, damages of psychological injury, loss of general health, loss of amenities of wife, contumelia, humiliation and defamation do not lend themselves to mathematical calculation. They are arrived at as a value of judgment and the issue of the currency does not come into it.

One cannot say that those damages, if proven to have been suffered, were only claimable in Zimbabwe dollars.

The plaintiff led evidence that he was imputed a thief and fraudster by the defendant. Such imputations, according to the plaintiff, have even been maintained after this court quashed the proceedings of the lower court and the imputations are repeated in the pleadings.

The plaintiff led evidence of a specialist on his mental stress.

On the claim of loss of earnings, the plaintiff wanted to call the defendant's Human Resources Manager. The testimony of this witness is necessary to determine the issue of the loss of earnings, if any. The defendant opposed the calling of this witness and indicated that it intended to call this witness as its own should this application fail. It is beyond dispute that evidence of the loss of earning is peculiarly within the knowledge of the defendant and the Human Resources Manager would readily have such information.

In Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A) it was stated;

“Courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant…, the plaintiff should not lightly be deprived at his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the witness box must not be permitted to shelter behind the procedure of absolution from the instance.”

On account this fact alone, it would be difficult for the defendant to establish that the plaintiff failed to prove loss of earnings. The defendant denied the plaintiff access to the witness he intended to call who is in the employ of the defendant. The defendant's conduct amounts to using rules of procedure to cause an injustice. I cannot, therefore, lightly deprive the plaintiff the remedy he seeks without first hearing what the defendant has to say.

Further, on general damages sought, I do not wish to make findings on the credibility of the plaintiff's witnesses at this stage. What is important is that the plaintiff led evidence on the alleged wrongful conduct by the defendant. He has led evidence that he suffered damages as a result of such wrongful conduct by the defendant. As far as general damages are concerned, as alluded to above, the court will award such damages as in its estimation justified. There may be merit in the defendant's attack in so far as special damages are concerned, but, this procedure is not intended for the court to determine issues piecemeal -Dube v Dube 2008 (1) ZLR (H).

In light of the foregoing, the application must fail.

Accordingly, the defendant's application for absolution from the instance at the close of the plaintiff's case is dismissed with costs being costs in the cause.

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example.

While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions caused by inflation in the economy are not transported wholesale into the law thereby causing distortions of legal principles.

The plaintiff operates a butchery from Muzarabani Business Centre in Mashonaland Central. In 2003, he thought of adding to his assets by having a freezer room installed at the butchery. He approached the defendant, who, in or about September 2003, gave him a quotation for installing a 6x8x8 cubic metre cold room for $13 million. In terms of the written quotation, the plaintiff was required to pay 50% of the total cost as a deposit and to show confirmation of the order. A deposit in the sum of $5,4 million was duly paid on 29 September 2003 and installation was to be done in a week's time. On 17 October 2003, the defendant delivered the cold-room, ready to install and commission it. Upon realizing the error, the plaintiff declined to accept delivery and installation of the coldroom whereupon the defendant returned to Harare with the cold room. Efforts to get the defendant to return and install a freezer room were in vain, prompting the plaintiff to approach his legal practitioners for assistance.

In April 2004, the defendant refunded the sum of $1,955,000= to the plaintiff, retaining the sum of $3,445,000= as necessary expenses incurred in manufacturing and attempting to deliver the cold room to the plaintiff. Unhappy with this development, the plaintiff issued summons claiming a payment of the sum of “$13,000,000= of $2,480,000= which is current $657,200,000=, with room to in increase it to match the current costs of installing a freezer room at trial”…., together with interest at the prescribed rate from date of the deposit to date of payment in full and costs of suit.

At the trial of the matter, the claim was amended to $53 billion.

The matter was defended.

In its plea, the defendant denied that it ever quoted the plaintiff for the supply and installation of a freezer room and averred that it quoted it for the supply and installation of a cold room.

At the trial of the matter, the defendant was in default, and, in terms of Rules 59A and 60 of the High Court Rules, 1972 I called upon the plaintiff to lead evidence on the amount of his claim.

The plaintiff's evidence was largely a rehash of the facts of the matter as I have detailed above. In addition, the plaintiff adduced into evidence a quotation that he obtained from a company called Commercial Refrigeration in the sum of $202 billion. The date of the quotation is not given on the handwritten quotation which also includes a component of foreign currency.

When asked to explain his claim in the sum of $53 billion, the plaintiff had the following to say, in part:

“I am claiming an amount that has the same value as the amount that I paid to the defendant in 2003.”

He went on, further, to explain that the amount he is claiming is one quarter of the total amount of the quotation from Commercial Refrigeration just as the amount that the defendant retained was a quarter of the quotation it had given him.

At the commencement of the trial I was under the impression that the plaintiff's claim was one of damages.

It was with this response that it appeared to me that he is simply claiming a refund of the amount that the defendant retained as expenses of manufacturing the cold room and travelling to and from Muzarabani with the wrong refrigeration unit, not at its nominal value, but, at its appreciated value, taking into account the impact of inflation.

His claim appears to me to be one for a debt and not for damages arising ex contractu.

The plaintiff's evidence was to the effect that the sum of $3,445,000= that was retained by the defendant in 2004 now has the same value as $53 billion which he claims. It became clear to me, from this response, that the plaintiff is raising inflation as the basis of his claim.

The plaintiff's stance was re-affirmed by counsel for the plaintiff when he addressed me on the issue.

His argument was to the effect that the plaintiff is entitled to claim the same percentage of the amount that it will now cost to supply and install a freezer room as was the percentage of the amount that the defendant retained in 2004 to the cost of installing a cold room in 2004.

Judges have often used telling adjectives to describe submissions they did not expect from legal practitioners such as “startling” or “ingenious”. Neither term aptly describes my sentiments at being presented with this submission.

I hasten to remark that the matter before me, although set down for trial, proceeded as an application for default judgment.

Ordinarily, a request for default judgment is hardly denied, as, by his default, the defendant is taken to have admitted all the averments made by the plaintiff. I am also aware of the school of thought that holds the view that it is not for a judge or the court determining an application for default judgment to act as the unpaid and un-briefed counsel for the defendant who is in default and deny a plaintiff judgment on issues that the defendant may not have raised if in attendance. Thus, a court dealing with an application for default judgment is perfectly within its rights to enter a default judgment not on the merits of the matter but on the technical basis that the defendant is in default even in cases where it is of the opinion that a defence may have been available to the defendant.

There is, in my view, however, a limit to the non-participatory role that a court may play in an application for default judgment. In my view, where a claim is clearly not well founded in law, a court may not give judgment on such a claim simply on the basis that the defendant is in default. Similarly, where damages have not been adequately proved to the satisfaction of the court, judgment may not be entered in the claimed sum; again, simply on the basis that the defendant is in default.

The basis for drawing the limit to the non-participatory role of the court, in my view, is the fundamental principle that after the parties have made their submissions to the court, the decision or order that is made is solely that of the court and such decision or order must find a basis in law at all times.

In my view, the claim before me is a case compelling me to abandon my non-participatory role for two reasons;

(i) Firstly, I take the view that the plaintiff's claim, being a claim in which the alleged debt has been appreciated to take into account inflation, is badly founded in law. Courts will take inflation into account when assessing damages in certain delictual claims but inflation, on its own, cannot be a cause of action.

In Edward Marume and Another v Todd Muranganwa HH27-07, I had occasion to deal with the issue of inflation in another application for default judgment. The following were my views on the matter:

“In my view, the issue involves a detailed discussion of 'currency nominalism' and 'revalorization' and the place of such concepts in Zimbabwean Law.”

The concept of currency nominalism has been held to be applicable in all aspects of South African Law. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833. In view of the provisions of the Prescribed Rate of Interest Act, there is a strong case for arguing that the concept also underlies all aspects of Zimbabwean law and that revalorisation, or the appreciation of debts to take into account inflation has no place in our law.

Again, like in Edward Marume and Another v Todd Muranganwa HH27-07, I have not been adequately addressed on the issue.

I hold the view that the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.

Assuming that I have erred in classifying the plaintiff's claim as one based on inflation, and that properly it is one seeking damages for an alleged breach of contract, then, in my view, two other issues arise;

(i) Firstly, it has not been proved that the retention of the sum of $3,455,000= was wrongful in any way or that it constituted breach of the contract between the parties. In fact, it would appear to me that the parties were not ad idem as the plaintiff requested for a freezer room and the defendant supplied a cold room. The offer and the acceptance did not coincide and the parties never had a contract in my view.

Even if one were to be generous and hold that there was a contract that the defendant breached by supplying the wrong refrigeration unit, the damages suffered by the plaintiff for the alleged breach have not been adequately proved.

It cannot be said that the quotation from Commercial refrigeration in any way represents the correct loss of value in money between 2004 and the date of the hearing. It has also not been proved that the quotation by Commercial Refrigeration has any relationship to the quotation given by the defendant in 2003. One was quoting for a cold room of different dimensions and the other was quoting for a freezer room of entirely different dimensions.

How the one can be tendered as proof of the value of the other was not argued before me.

Despite much effort, I cannot figure out a possible argument on the relationship myself.

For the above reasons, I cannot accede to the prayer for default judgment in the matter in the amount prayed.

I have anxiously considered whether I can grant judgment in the sum of $3,455= that was retained by the defendant in 2004 together with interest thereon at the prescribed rate from the date of the retention to date of payment. The amount involved, even with interest, is so pitiful, in my view, as to make a mockery of the justice delivery system where I to order its payment. In m view, the plaintiff is best served by the order that I make below.

In the result, I make the following order:

1. The defendant is granted absolution from the instance.

2. The plaintiff is hereby granted leave, after effecting necessary amendments to his claim, and upon service of such on the defendant, to set the matter down for judgment in terms of Rule 58 of the High Court Rules, 1972.

3. There shall be no order as to costs.

The plaintiff issued summons against the defendants, on 11 September 2012, claiming:

(a) Payment of the sum of US$3,700= being the cost of repairs to his Toyota sprinter motor vehicle registration number AAQ 5021 negligently damaged by the first defendant on 17 December 2011 who was at the time driving a Toyota Land Cruiser registration number AAX 3378 which vehicle, at the material time, was insured by the second defendant in terms of Part (IV) of the Road Traffic Act [Chapter 13:11].

(b) Payment of consequential damages in the sum of US$9,750= being the cost of hiring a replacement vehicle during the period 18 December 2011 to 30 June 2012 while the plaintiff's vehicle was being repaired.

(c) Interest on the sum of US$13,450= at the prescribed rate from the date of summons to date of final payment.

(d) Costs of suit.

In his declaration, the plaintiff averred that a road accident occurred along Alpes Road, between Cambridge and Borrowdale West Harare, on 17 December 2011, between his vehicle and that belonging to the first defendant. He averred, further, that the accident was caused solely by the first defendant's negligence, based on the fact that;

(i) She was driving at excessive speed.

(ii) She made a right turn in the face of oncoming traffic when it was dangerous to do so.

(iii) She failed to keep a proper lookout.

(iv) She drove too fast given the prevailing traffic conditions.

(v) She failed to apply brakes to her vehicle timeously or at all.

(vi) She was driving without due care and attention.

(vii) She failed to keep her vehicle under proper control.

The plaintiff alleged that the defendant paid an admission of guilt fine.

The plaintiff averred that as a result of the accident his motor vehicle sustained damage to the gear box, radiator, bonnet, headlamps and the windscreen. He averred, further, that the vehicle was repaired by H & J Panel Beaters, of Bluff Hill, Harare, at the second defendant's instance. When he took delivery of the vehicle, the plaintiff was not satisfied with the repairs done to his vehicle.

He then procured quotations for sums in excess of US$3,700= from different panel beaters, with a view to restoring his vehicle to the condition it had been in prior to the accident with the first defendant. He obtained a report from the Automobile Association of Zimbabwe (Private) Limited which confirmed that the repairs done to his motor vehicle were not satisfactory. The plaintiff alleged that the second defendant subsequently advised him to surrender his vehicle in return for an amount of US$3,500= which it claimed was the market value of the plaintiff's vehicle.

The plaintiff disputed this and insisted that the value of his vehicle was US$6,300=.

The plaintiff averred that he expected his loss to be mitigated by June 2012, and, because he was deprived of his car he rented a vehicle at US$50= per day from 18 December 2011 to 30 June 2012, when his vehicle was satisfactorily repaired.

The defendants filed their plea to the plaintiff's claim on 18 October 2012. The first defendant admitted to driving without due care and attention but denied any form of negligence.

The defendants put the plaintiff to the proof of the damages allegedly incurred.

The defendants averred that, on 20 January 2012, the plaintiff signed a satisfaction note on completion of the repairs, after signing a release form on 19 January 2012, in which he authorized the second defendant to pay directly to the panel beaters, for the cost of repairs. The defendants averred, further, that on 19 January 2012, the plaintiff signed a release form in which he released the defendants from any further actions or suit emanating from the accident.

On the issue of inadequate repairs to the plaintiff's vehicle, the defendants averred that the plaintiff's concerns had been noted, but, due to the fact that his vehicle had sustained damage from a previous accident, he was asked to contribute to the repairs of his vehicle.

The defendants denied that the plaintiff's motor vehicle was valued at US$6,300= and put him to the proof thereof.

In his replication to the defendants' plea dated 11 December 2012, the plaintiff denied each and every allegation of fact and of law and put the defendants to the proof thereof and joined issue with the defendants.

At the pre-trial conference, on 4 September 2013, the matter was referred to trial on the following issues:

1.Whether or not the plaintiff is entitled to disbursement, the same claim having been settled, and, if so, in what amount?

2.Whether or not the plaintiff was entitled to hire a vehicle, and, if so, the quantum of the hire charges.

Admissions were made by both parties:

1. The defendant admitted liability for the accident.

2. The plaintiff admitted that his vehicle had been involved in another accident prior to the accident in question.

At the hearing of the matter, the plaintiff, a self actor, testified and told the court that: “his vehicle was taken to the panel beaters for repairs on the day of the accident, 17 December 2012, at the first defendant's instance, and a promise was made to him that the vehicle would be repaired the same day. He told the first defendant that he needed his vehicle as a matter of urgency because he intended to travel and she promised him that, because she knew the manager at H & J Panel Beaters, the vehicle would be repaired that very day. He arranged for cover quotations to be done with the assistance of the manager at the panel-beaters.”

The plaintiff then referred to copies of the quotations which he wanted to show the court.

Counsel for the defendants objected to the production of the quotations on the basis that they had not been discovered in terms of the Rules and that the defendants were hearing of the quotations for the first time.

The court sustained the defendants' objection after referring to the schedule of documents discovered and explaining to the plaintiff, who was not legally represented, the reason why it could not admit his quotations into evidence.

The plaintiff continued to testify. He told the court that: “After the cover quotations were done the vehicle was assessed by Mr. Chiunda, an assessor, who wrote a report indicating that plaintiff's vehicle was valued at US$5,000=.”

The report was not tendered into evidence.

The plaintiff told the court that, two days after the accident, his vehicle had not been repaired, and that, on contacting the first defendant she referred him to the second defendant, the insurer of her vehicle.

The plaintiff asked the court if he was allowed to show it text messages exchanged between him and the first defendant at the material time. He applied to have a printout of his phone admitted into evidence. The printout was admitted as exhibit 1. It was dated Friday December 23, 2011, 11:07pm, from the first defendant to the plaintiff, and it read as follows:

“I have no input on that one, Mr. Sibanda. Everything to do with your car is with the insurers and JMC.”

The plaintiff told the court that he was aggrieved by the first defendant's attitude because she had previously assured him that his vehicle would be repaired in one day. He proceeded to hire a motor vehicle to use, and, in his words “…, with the first defendant's knowledge and consent.”

The plaintiff told the court that his vehicle took a month to be repaired, and, consequently, extended the car hire period because he needed a car to go to his rural home that Christmas. After that, he signed some papers at the second defendant's offices which were allegedly explained to him as documents to enable him to collect his motor vehicle from the panel-beaters'. He testified that he signed the documents provisionally, because he had not yet seen the car, and, to demonstrate this, he alleged that the documents he signed were not witnessed, and therefore invalid because he told the second defendant that he would come back after he got his vehicle for the witnessing of the documents.

The plaintiff collected his vehicle on 20 January 2013 and signed a release note at the panel-beaters. He took a ten minute video of the release process.

Next morning, on his way to work, he discovered that the gearbox on his vehicle was not functioning properly, the windscreen wipers were not working, and that the vehicle had a lot of other defects.

Around 22 January 2013, the plaintiff brought his complaints to the second defendant, where he was told that the panel-beaters had already been paid, on his instructions, when he signed the form authorizing the defendant to pay. The plaintiff's letter of complaint to the second defendant, dated 23 January 2012, was admitted into evidence as exhibit 2. In the letter, he asked the second defendant to delay payment to H & J Panel Beaters until the matter was resolved. The second defendant promised to have the vehicle assessed and Mr. Chiunda assessed the vehicle but gave his report to the second defendant. The second defendant then indicated that the vehicle was a write off and offered US$3,500= in full and final settlement.

The plaintiff alleged that he refused this offer because he had valuation reports which showed that his vehicle was valued at US$6,300=.

No application was made to tender the alleged valuation reports into evidence.

In the spirit of assisting an unrepresented litigant the court asked the plaintiff whether he wished to tender the valuation reports in its evidence. The plaintiff replied that the reports had not been discovered.

The plaintiff admitted that his vehicle had been damaged in a previous accident. Under cross examination, the plaintiff told the court that his level of education was Ordinary Level and that he is a self employed freelancer who analyses chemicals for a living. On being asked to provide proof that he communicated to the first defendant his intention to hire a vehicle to use at her expense, he replied that he had no proof, their communication was verbal. He denied that it was a luxury on his part to hire the vehicle and averred that a vehicle was essential to his business.

The plaintiff admitted that his vehicle went to the panel beaters at 3pm on the day of the accident. On being questioned as to how the first defendant could assure him that the vehicle would be repaired the same day given the lateness of the hour, he told the court that although the damage to his vehicle was extensive, it was feasible that repairs could take a short period of time.

He admitted signing the form that authorized the second defendant to release payment to the panel beaters on 19 January 2013 but stated that the signature was provisional because it was not witnessed. He admitted that he had signed a clearance note in which he acknowledged receiving his vehicle in good condition order and repaired to his complete satisfaction but stated that the form was subject to his findings after checking the vehicle.

He reiterated that his vehicle was valued at US$6,300=.

Finally, he told the court that, to mitigate his loss, he hired the cheapest vehicle that was available at the time.

He admitted that his letter of complaint, dated 23 January 2013, came three days after he authorized the second defendant to pay the panel beaters on 20 January 2013. The plaintiff then closed his case.

The defendants applied for absolution from the instance on the basis that the plaintiff had failed to prove a prima facie case, and, that the plaintiff had failed to prove its entitlement to payment of hire charges of a replacement vehicle, and, that, after the second defendant had paid for the repairs, there was no continuing legal liability on it to advance more money to the plaintiff for further repairs or for any other reason.

The issues for determination at trial were whether the plaintiff was entitled to a further disbursement after the second defendant had paid for the repairs to his vehicle, and, if so, in what sum, and whether the plaintiff was entitled to hire a vehicle, and, if so, whether he ought to be reimbursed for the cost of the car hire.

The onus was on the plaintiff to prove his claim on all the trial issues by adducing sufficient evidence to meet the standard of proof in civil cases, proof on a balance of probabilities.

The question that the court must ask itself, in an application for absolution from the instance, in the circumstances of this case, is this: Did the plaintiff place sufficient evidence before the court to show that he was entitled to be paid more money by the defendants after the cost of repairs to his vehicle were paid in full. Secondly, was the plaintiff entitled to hire a vehicle for his use from the date when he expected his vehicle to be repaired to the date when it was repaired?

After a party has closed its case, the defendant, before commencing his own case, may apply for the dismissal of the plaintiff's claim. Should the court accede to this, the judgment will be one of absolution from the instance. See HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4th ed…,.

The term 'absolution from the instance' is used to describe the finding that may be made at either of two distinct phases of the trial. In both cases, it means that the evidence is insufficient for a finding to be made against the defendant.

At the close of the plaintiff's case, when both parties have had opportunity to present whatever they consider to be relevant, the defendant will be 'absolved from the instance, if, upon an evaluation of the evidence as a whole, the plaintiff's burden of proof has not been discharged'. See SCHWIKKARD Van Der MERWE, Principles of Evidence 3rd ed…,.

In the case of Machewane v Road Accident Fund 2005 (6) SA 72 (T), absolution from the instance was defined as follows:

“It means that the plaintiff has not proved her case against the defendant. It is not a bar to the plaintiff re-instituting the action (provided the claim has not by then prescribed), and, in that respect, it is to be distinguished from a positive finding that no claim exists against the defendant. Absolution is the proper order when, after all the evidence, the plaintiff has failed to discharge the normal burden of proof. Absolution from the instance, in effect, brings the proceedings to an end at that stage because there is no prospect that the plaintiff's claim might succeed, and, in those circumstances, the defendant should be spared the trouble and expense of continuing to mount a defence to a hopeless claim.”

In LH HOFFMAN, DT ZEFFERT, The South African Law of Evidence 4th ed…, it is stated that:

“A decree of absolution from the instance is derived from Dutch Law…,. It is the appropriate order when after all the evidence the plaintiff has not discharged the ordinary burden of proof. Its procedural advantage is that it enables the plaintiff to bring another action on the same facts, a privilege which is denied to the defendant if he fails in an action in which the burden of proof is on him. Its other use is an extension to civil actions of the rules for withdrawing a case. If, at the end of the plaintiff's case, there is not sufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution.”

In Gascoyne v Paul & Hunter 1917 TPD 170…, the court stated that:

“The question therefore is, at the close of the case…, was there a prima facie case against the defendant…, in other words, and, was there such evidence before the court upon which a reasonable man might, not should, give judgment against Hunter?”

In the case of United Air Charters v Jarman 1994 (2) ZLR 341 (S) it was held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought (to) find for him. See Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B-E.”

In more recent times, in this jurisdiction, in the case of Delta Beverages v Onismo Rutsito SC42-13, an appeal against a High Court judgment dismissing with costs an application for absolution from the instance, the respondent sued the appellant for damages in the sum of US$20,051= and costs of suit on the basis that he had consumed a contaminated coca-cola beverage, and, that further inspection of the bottle had revealed a 'rusting iron nail and brackish foreign substances.'

The appellant was the manufacturer of the beverage in question and the question for determination by the court a quo was 'whether the appellant owed the respondent a duty of care to ensure that the product is safe, clean, healthy and fit for human consumption', or, alternatively, 'whether the appellant had negligently allowed the production and selling of contaminated coke.'

The court was satisfied that 'the respondent did not prove any damage such as would have founded a cause of action under the Law of Delict, and that, 'clearly, whatever distress or anxiety or nervous shock he may have experienced was transitory…, and, in the circumstances, the appellant had no case to answer and that should have been the end of the matter and absolution from the instance ought to have been granted.

At page12 of the judgment, on the alternative claim based on negligence, the court said:

“I am satisfied that for the additional reason that negligence was not proved and a causal link shown between the beverage in question and the appellant, absolution should have been granted.”

See also Mining Industry Pension Fund v DAB Marketing (Private) Limited SC10-11.

Could this court find for the plaintiff on the basis of the evidence which he led?

The test established in terms of the numerous decided cases necessitates an analysis of the evidence led by the plaintiff before he closed his case, and a determination of whether, on the basis of that evidence, the court could give judgment in favor of the plaintiff. In other words, was the evidence enough? Was it sufficient? Did it support the plaintiff's averments with sufficient clarity and particularity?

The degree of proof required is 'proof on a preponderance of probability'.

The plaintiff told the court that his level of education was Ordinary Level. From his testimony, and his responses under cross-examination, the court surmised that he was well aware of the legal implication of the documents that he signed on 19 and 20 January 2013 at the second defendant's offices. He authorized the second defendant to pay the panel beaters for the repairs. He took delivery of his vehicle and indemnified the second defendants against any further claims.

The plaintiff's averments that the documents were not witnessed therefore invalid were not believed by the court. The plaintiff reads and understands English very well. He is so proficient in English that he conducted his own case before the court. He could have endorsed on the documents that he was signing conditionally. He chose not to because the defence he is raising is an afterthought.

The plaintiff signed release forms and indemnity forms before the second defendant with full knowledge of the implications.

The plaintiff's evidence that the first defendant promised him that his vehicle would be repaired within a day after the accident was not believed by the court. He testified that the vehicle made it to the panel beaters by 3 o'clock on the day of the accident. It is difficult to believe, and not supported by the evidence, that the first defendant intended that the plaintiff would have his vehicle, fully repaired, by 3pm the next day after the accident. The plaintiff admitted that the damage to the vehicle was extensive.

A reasonable man on the Mabvuku commuter omnibus would surely not believe that such an extensively damaged vehicle would be repaired within twenty four hours.

The tragedy in this matter is that the plaintiff's conduct of his own trial was a farce and an exercise in futility. He clearly had no idea about the rules of evidence otherwise he would have tendered the necessary documentary evidence required to buttress his case, especially considering that he did not intend to call any witnesses other than himself.

He testified that the vehicle was assessed, but, in the absence of the assessment report, the court was unable to independently verify his claim as to the value of his vehicle. The assessment report, as well as the report allegedly done by the Automobile Association of Zimbabwe, were not discovered in terms of the Rules.

The plaintiff was hamstrung by his ignorance of the High Court Rules.

He failed to place the relevant evidence before the court, which was in his possession, but which he had not discovered in terms of the Rules.

By 23 December 2011, according to exhibit 1, the first defendant had advised the plaintiff that the matter was being handled by the second defendant, her insurers. There is insufficient evidence before the court to support the plaintiff's averment that he hired a vehicle to use with the first defendant's knowledge and consent. In any event, it was not up to the first defendant to consent to such an arrangement once the second defendant became seized with the matter.

The first defendant was insured against accident and damage. She referred the plaintiff's claim to her insurers who were processing it.

No evidence was led that the plaintiff approached the second defendant and advised that if his car was not repaired immediately he would hire a vehicle to use for business and to take his children to school. No evidence was led that the second defendant authorized the plaintiff to hire a vehicle for his use whilst his accident-damaged vehicle was being repaired.

Unfortunately, no evidence was placed before the court to support the plaintiff's claim about his vehicle being valued at US$6,300=. Independent verification of this averment would have enabled the court to assess whether the second defendant's offer to pay the plaintiff US$3,500= and write off the vehicle is fair and reasonable in the circumstances.

There is insufficient evidence, generally, on a balance of probabilities to establish a prima facie case in favor of the plaintiff and against the defendants. The plaintiff failed to discharge the onus on him to prove his case. 

It follows that absolution from the instance is granted in favour of the two defendants. The plaintiff shall pay the defendants' costs.

In an application for the recusal of a judicial officer, what must be proved is the mere possibility of bias, not actual bias. What is important when considering the circumstances of each case is the impression or perception that is created in the mind of right thinking people - not the applicant's subjective impression of bias.

The test is an objective one.

“A judicial officer should not be unduly sensitive and ought not to regard an application for his recusal as a personal affront. A judge whose recusal is sought should bear in mind that what is required, particularly in dealing with the application for recusal itself, is conspicuous impartiality. The Judge must ensure that justice is done. It is equally important that he should also ensure that justice is seen to be done. After all, it is a fundamental principle of our law and public policy. He should therefore so conduct the trial that his open mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome.

The approach of our courts to an application for recusal has been set out in a number of cases and the principle which they seek to enshrine is that no reasonable man should, by reason of the situation or the action of a judicial officer, have grounds for suspecting that justice will not be administered in an impartial and unbiased manner. However, the mere possibility of bias apparent to a layman would not be sufficient to warrant the recusal of a judicial officer.”

The authorities which set out these cardinal principles were reviewed in the leading case on recusal of Standard Chartered Finance Zimbabwe Limited v Georgias & Anor 1998 (2) ZLR 547 (H).

It is my considered view that in an application of this nature, a presiding officer is faced with the difficult and unenviable task of being a Judge in one's own cause. It involves revisiting the record of proceedings in the trial court, and combing through it, and objectively assessing the proceedings in order to determine whether there is anything that the presiding officer said or did which can be perceived as being unjustifiably favorable to one of the parties at the expense of the other. The enforcement of the rules of procedure of the court is subject to strict guidelines which nevertheless are applied, to a certain extent, at the discretion of the presiding officer.

Judicial discretion is the power of a court to take some step, grant a remedy, or admit evidence or not as it thinks fit. Many rules of procedure and evidence are in discretionary form or provide for some element of discretion.

In this case, a determination will have to be made as to whether the decision to exclude documents that the plaintiff intended to produce in evidence before the court a quo, which documents had not been discovered in terms of the rules, and which the defendant objected to on the basis that it would be prejudiced, was motivated by bias.

The plaintiff is a self actor who brought an application for my recusal, as the presiding Judge, in a civil claim for the payment of USD$3,700= being the cost of repairs to his Toyota Sprinter motor vehicle which was negligently damaged by the first defendant on 17 December 2011. The motor vehicle was insured by the second defendant at the material time. The plaintiff also claimed payment of consequential damages in the sum of USD$9,750=99 being the cost of hiring a replacement vehicle during the period 18 December 2011 to June 2012.

Trial commenced on 6 February 2014. The defendants applied for absolution from the instance at the close of the plaintiff's case and their application was granted in a judgment dated 27 February 2014, HH92-14…,. The court found that;

“…, There is insufficient evidence before the court to support the plaintiff's averment that he hired a vehicle to use, with the first defendant's knowledge and consent. In any event, it was not up to the first defendant to consent to such an arrangement once the second defendant became seized with the matter. First defendant was insured against accident and damage. She referred the plaintiff's claim to her insurers who were processing it. No evidence was led that the plaintiff approached the second defendant and advised that if his car was not repaired immediately he would hire a vehicle to use for business and to take his children to school. No evidence was led that the second defendant authorized the plaintiff to hire a vehicle for his use whilst his damaged vehicle was being repaired. Unfortunately, no evidence was placed before the court to support the plaintiff's claim about his vehicle being valued at USD$6,300=99. Independent verification of this averment would have enabled the court to assess whether the second defendant's offer to pay the plaintiff USD$3,500= and write off the vehicle is fair and reasonable in the circumstances.

There is insufficient evidence, generally, on a balance of probabilities, to establish a prima facie case in favor of the plaintiff and against the defendants. The plaintiff failed to discharge the onus on him to prove his case. If follows that absolution from the instance is granted in favor of the two defendants. The plaintiff shall pay the defendants costs.”

The plaintiff appealed against this judgment on 18 March 2014. The grounds of appeal were that the trial court had erred and misdirected itself by disbelieving his evidence, by not accepting that the respondents had admitted that his complaints were genuine, by noting the judgment on the day of hearing before arguments, and by granting absolution from the instance.

The respondents did not appear before the Supreme Court on 6 March 2015 when an order in default of their appearance was granted in which the appeal was allowed with costs, the decision of absolution from the instance was set aside, and the matter was remitted back to the court a quo for the continuation of the trial.

At the close of the plaintiff's case the defendant swiftly moved to make an application for absolution from the instance.

What runs through the plaintiff's declaration is the allegation that the defendant lacked due diligence and care in the manufacturing of its product to the extent that the product itself is not safe, clean, healthy and fit for human consumption.

The plaintiff testified himself and called two more witnesses one of whom testified to corroborate the plaintiff's evidence that he had partaken of contaminated coke. That the plaintiff drank coke which was not safe for human consumption could not have been successfully challenged by the defendant as none of its representatives were present when the partaking took place. The thrust of the defendant's defence, as demonstrated by the cross-examination, was the source of the drink in question.

The second witness called by the plaintiff alleged he was also a victim of contaminated coke on an entirely different occasion, and, in the court's view, his unsolicitated testimony tendered to corroborate the plaintiff's contention that all was not well in the defendant's manufacturing of the product in question.

Exhibits 8 and 9 which were produced by the plaintiff again tended to show that there were some foreign substances in the defendant's coke and this appeared, in the eyes and mind of the court, to show that there was something amiss with the defendant's product.

The plaintiff testified that as a result of drinking the contaminated coke he ended up incurring medical expenses some of which even the defendant's counsel was unable to challenge at the time he made an application for absolution from the instance.

It appeared the defendant's counsel's position was that the plaintiff ought to have used the defendant's testing facilities at the defendant's place if he felt there was something wrong with the coke that he drank.

I was not persuaded to accept this argument.

In fact, it raises quite an interesting debate for one to argue that it would have been reasonably expected for the plaintiff, being a victim of the alleged negligence of the defendant, to make use of the defendant's facilities to either confirm or exonerate the defendant's alleged lack of care and due diligence.

The plaintiff alleged, in his declaration, that he had suffered general damages in the sum of US$20,000= for distress and anxiety. The defendant's counsel argued that in acquilian action distress and anxiety are not recognisable.

This obviously is a legal issue which both the plaintiff and the defendant would have to deal with when all the evidence in this case (including the defendant's) have been gathered.

Authorities are agreed on the test to be applied in deciding an application for absolution from the instance. GUBBAY CJ eloquently laid down the legal position in the following:

“A plaintiff will successfully withstand such an application, if, at the close of his case there is evidence which a court, directing its mind reasonably to such evidence could or might (not should or ought to) find for him. See Supreme SVC Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR (A) at SD–E; Lowrence vs Ragar Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158/B – E.”

United Air Charterns v Jarman 1994 (2) ZLR 341 (S)…,.

Could or might the court in the instant case find for the plaintiff?

In the court's view, the answer must be in the affirmative. The totality of the pieces of evidence put together by the plaintiff appear to me to establish a prima facie case of negligence on the part of the defendant. The defendant must not be denied the opportunity to explain its manufacturing process to the court by this application for absolution from the instance.

In both cases, Delta Operations (Private) Limited t/a National Breweries v Charles Maraura SC106-99 and Seliphias Musiyiwa v Delta Corporations Limited t/a United Bottlers HH64-04 cited by counsel for the defendant, the enquiry was allowed to run its full course and the court was only able to make a proper determination after assessing the defendant's evidence together with that of the plaintiff. It is clear to me that in both cases the courts made a specific finding that there was a likelihood or probability of interference with the defendant's process after the product had left the production and distribution line on its way to the retailer.

These findings were not made as a result of conjencture but followed a thorough analysis of the evidence placed before the court by both parties. I am unable to speculate on such finding at this stage. The defendant must give evidence to rebut the plaintiff's allegations which have been reasonably corroborated by the witnesses who testified.

Consequently, the application for absolution from the instance is dismissed with costs in the cause.

The defendant, Steward Bank, applies for absolution from the instance at the close of the plaintiff's case in matter founded on damages for breach of contract.

The plaintiff is Mucal Investments. In its summons it seeks payment of US$553,544=42 by the defendant. The amount is sought as damages for loss of business between January and July 2013 resulting from the plaintiff's bank account having been frozen by the defendant under circumstances which will be elaborated. Interest is also sought at the prescribed rate from the date of the summons to date of full payment. In addition, costs of suit are further sought as between attorney and client.

The damages are founded on the allegation that it was a tacit term of the agreement between the parties that the defendant would honour all cheques and negotiable instruments and transfers properly drawn.

The plaintiff, which was then engaged in the business of supplying vegetarian products states through its Director, Lion Chirove, that it could not access its account to effect business payments despite demands being made to the defendant and a court order having been obtained.

The plaintiff company was founded in 2006 and its Directors were then Avila Zvenyika and Lion Chirove. In May 2010, two brothers, Bruce Smith and Ahmad Smith, who had joined them in a business partnership, were made directors of the company. As explained in a “to whom it may concern letter” written in October 2010, being non-Zimbabweans and in the absence of a valid work or residence permit, the new partners could not sign on any Bank account. The letter explained that they had been temporarily removed from the company's CR14 form but that they were, in essence, still directors pending regularisation of their permits.

In September 2011, the plaintiff moved its banking account from CBZ to the defendant Bank.

At the time of opening the account its signatories were Lion Chirove and Avila Zvenyika. Mr Bruce Smith was however made a signatory in place of Mr Lion Chirove in a letter to the Bank dated 30 April 2012. It advised that a Board meeting had resolved to appoint him together with A Zvenyika. However, on 19 November 2012, following a dispute with the Smith brothers, Avila Zvenyika, the company's administrator, had written to instruct the Bank not to process any transactions unless it was authorised by the two Directors as captured on the CR14 form, namely, herself and Lion Chirove.

From the plaintiff's testimony, what flamed the dispute emanated from the fact that the Smith brothers had clandestinely registered a company in South Africa giving themselves a 100 percent shareholding when the agreement had been to go 50-50 with Mucal Enterprises. They had also registered a company in Zimbabwe giving themselves a 70 percent shareholding and the plaintiff and its director 30 percent. The dispute fully ignited when the Smith brothers proposed that a shareholder's agreement be signed between Mucal Investments and the two brothers as a separate agreement. Under the agreement, Mucal Enterprises would be owned by the Smith brothers in their South African company. The plaintiff's directors, Lion Chirove and Avila Zvenyika perceived this move as designed to swallow and push it out of business.

It was then that the instructions were given to the Bank regarding the change of signatories whereby Mr Chirove was reinstated as signatory in place of Mr Bruce Smith.

He further testified that on 21 January, when he tried to effect telegraphic transfers for the sum of R98,000= to a South African supplier (Fry Group), the defendant refused to honour the transaction, and, instead, froze the account. However, it emerged, in cross examination, that the reason why the Bank froze the account was that it had received instructions from Mr Bruce Smith that he had been improperly removed as a director and signatory.

The plaintiff's position is that the internal dispute was none of the Bank's business and that it was its responsibility to abide by the instructions of the directors as captured on the CR14 form. This showed the two directors as himself and his wife Avila Zvenyika.

Out of an abundance of caution, the defendant, on the other hand, had frozen the account until the dispute had been solved. At the time, the plaintiff held $24,797=35 in its account as per bank statement presented as Exhibit S.

That the dispute also set off a chain of events is not denied. Nonetheless, the plaintiff's position is that had the Bank risen above the dispute in light of its contractual obligations to its “true” client, none of the losses subsequently suffered would have occurred.

The chain of events is crucial to grasp as it places crucial variables to the otherwise linear causation of losses suffered as articulated by the plaintiff. The events were as follows:

1. On 23 January 2013 the Bank refused to effect the transactions following the representations made to it by Mr Bruce Smith that he had been improperly removed as signatory.

2. On 6 February 2013 a provisional order was sought by the plaintiff against the defendant in which it sought interim relief compelling the Bank to make accessible to “applicants directors” funds held under account 60101051739101 and to allow the free and unfettered transaction and operation by the applicant of its bank account. The provisional order was granted by consent of all parties. The final order sought to declare Lion Chirove and Avila Zvenyika as having the sole and exclusive right to transact under the relevant account.

Meanwhile, on this very same date, as the above order was being granted, the Registrar of Companies wrote to Mrs Zvenyika stating that they had received a complaint of fraudulent activities concerning removal of two directors (the Smith Brothers) without their knowledge and consent. She was asked, as company secretary, to clarify the position.

Criminal proceedings were also pending in the Magistrate's Court against the plaintiff's director, Lion Chirove, for fraud.

3. On 14 February 2013 the Smith brothers applied for an interdict, under HC882/13, to prevent Lion Chirove and Avila Zvenyika from accessing the account. The plaintiff's testimony was that this order was not granted as the court took the position that it was not possible to interdict an order granted by consent. Under cross examination it emerged that the crucial reason was also to provide the plaintiff a chance to seek for a final order articulating the rightful directors since what had been granted was simply a provisional order authorising “directors” to access the account.

4. On 11 March 2013 one Martha Chakanyuka, a Principal examiner in control of companies, signed a statement stating that the CR 14 form signed in October 2010 was fake and that the stamps and signatures were fake. She highlighted the procedures for change of directorship and averred that these had not been followed.

5. On 12 March 2013 Avila Zvenyika, in her capacity as company secretary, then replied stating that the claims were unfounded and highlighting that the company is wholly owned by its two directors, Lion Chirove and herself. She also explained that the two non-shareholding directors had been removed by a company resolution in October 2010. She also stated that the two directors, namely, the Smith brothers, had agreed to be removed back then to pave way for a loan since their immigration papers were not in order. She stated that everything had been done above board.

6. On 13 March 2013 the plaintiff's lawyers had written to the Bank regarding the opening of the account which was still not opened.

7. On 22 March 2013 the defendant's lawyers had written to the plaintiff's lawyers advising them of receipt of the statement made by the Registrar of Companies concerning the anomalies that had been detected. They also advised that the dispute needed to be resolved since the court had granted the order on the 6^th of February on the basis that the CR14 now under dispute had been the correct one. In view of these developments they also pointed out that their client, the Bank, was unable to accede to the request to activate the account.

8. On July 5, 2013 Martha Chakanyuka signed another statement - this time essentially confirming that following certain documents being availed that the CR14 form earlier criticised as improper was in fact proper. She confirmed that the Smith brothers had indeed been removed as directors on 4 October 2010.

9. On 16 July 2013 the plaintiff's directors finally accessed the account having been informed, according to the plaintiff, through a casual encounter with the Bank's manager, that the account had been reopened.

The Plaintiff's perceived loss

The gravamen of the plaintiff's evidence was that over the time when it was not allowed access to its account, it had contracts with several retail supermarkets as a supplier of vegetarian products. These included shops such as OK, Bon Marche and Spar shops. A contract with OK, dated 2010, was placed before the court as Exhibit E. The contract itself however did not indicate the value or volume of business between the parties.

From the OK and Bon Marche shops, the plaintiff valued its business for the relevant period when its account was frozen at $50,000= with a profit of $26,000= after expenses had been paid. Exhibits H1-H6 were handed in. Three of these were statements generated by the plaintiff's director while another three were said to be generated by OK although there was no official verification of these documents.

Also presented were the plaintiff's own calculations of business with the Spar shops (Exhibits G1-G5). However, the plaintiff did not produce any evidence or proof that business was actually being conducted constantly or on a monthly basis.

The plaintiff's director also presented its projections of business it was set to do with TM and Pick n Pay. It said the value lost amounted to approximately $74,000=. In addition, the plaintiff's company had a credit facility with TN Bank for up to $4,000= per month and was doing business with TN Harlequin (Exhibit F).

It terms of lost business, it had also secured an arrangement to supply the Seventh Day community with vegetarian products at its Adventist camp sites. With 52 campsites attended by about 5,000 people per camp annually, the plaintiff's estimation was that it lost a potential of US$5,000= per campsite giving a total loss of $260,000=.

In July 2012, the plaintiff had gotten another product for distribution from Good Hope International Enterprises for soya milk. It alleged that it would have been a sole distributor, and, on arrangement, would have been a regional distributor. However, no proof of this averment was produced. At the time, the plaintiff stated it had received an order by consignment from Good Hope for $30,000=. This would have been serviced from the account.

The plaintiff stated that, overall, it was expecting, during the period its account was frozen, a total of US$495,000= worth of purchases with Good Hope and from this amount $693,000= worth of sales thereby giving it profit of $198,000=. The plaintiff later clarified, in cross-examination, that it was still negotiating this contract and therefore no contract could be availed. However, it had received the order by consignment for $30,000= though, again, no proof was produced. From the Fry's Group, business lost over the seven month period was estimated to $102,712= after expenses.

The company, according to its Director, had also made inroads into the possible supply of meat-free products to Catholic schools around the country under which he estimated it would have made at least $20,000 - $25,000 per month.

All the above was the kind of business the plaintiff said it lost on probabilities. The devastating consequence arising from the defendant's perceived breach of contract was not only loss of income, according to the plaintiff's director, but also termination of contracts.

The distributorship business with the Fry Group was terminated in April 2013 and with Good Hope in September 2013. It lost all its suppliers because it failed to pay them. It lost all its clientele whom it failed to service. It was, according to him, a sole distributor of vegetarian products. It was also working with a “niche market”. It also lost its reputation in the process. By December 2012 the company, according to its director, had grown to 12 employees. Today it has none.

The plaintiff blames the defendant for the sum total of these woes because it could not access its account to conduct its business.

Interrogation of the loss in cross examination

The plaintiff was quizzed by the defendant's counsel…, on the company's financial accounting procedures.

The plaintiff's director conceded that he is fully aware of the need to keep proper books of account by any company. He agreed that such books would indeed vividly indicate the company's flow of business and any profit and loss made. He was also in agreement that annual tax returns would clearly indicate the actual profits made for tax purposes. He said all such documentation existed with respect to the plaintiff company but admitted that they had not been tendered as evidence.

He did not dispute that a Bank can place administrative requirements over those who operate accounts and that it is entitled to refuse access where it has concerns as to the authenticity of any representative. However, he was adamant that the Bank acted improperly, especially as it had been given the necessary information as who the directors were.

The plaintiff's director also confirmed that indeed the Smith brothers had come in as financial partners as the company was going through financial difficulties at the time. Their terms were to be shareholders on a 49-51 percent basis. The other condition was to secure them as signatories to the account.

It emerged from cross-examination that certain monies invested by the Smith Brothers had not been paid back by the plaintiff. The Smith brothers were therefore seeking to protect their investment.

He also agreed that no final order had been sought to the provisional order that had been granted by the court on 6 February 2013. He also conceded that the day that the order was granted, on 6 February 2013, was also the very day that the Registrar of Companies had written to the other director, Ms Zvenyika, seeking an explanation of allegations of possible fraudulent removal of directors. This information had not been before the court at the time that it was granting the provisional order.

He also did not deny that the Smith brothers had also sought an urgent chamber application to stay operation of the provisional order granted by the court on 6 February 2013.

He further agreed that he had not taken any concrete action to actively challenge the statement and that the statement was withdrawn in July against a backdrop of investigations the Registrar had carried out. He did however maintain that the statement was challenged when he was being prosecuted.

Although his view was that the provisional order granted on 6 February 2013 was clear as to its directive regarding the re-opening of the account. He did concede that it was the final order that specifically sought to confirm himself and Ms Zvenyika as the true directors of the company.

He admitted that no action was taken on his part to seek a final order as directed by Justice PATEL in HC882/13 which would have put an end to the dispute at least as way back as March 2013. He also admitted that on the same day that bail conditions were relaxed to allow him to operate the account was also the same day that the Registrar of Companies made the allegation that there was possible fraudulent activity.

The application for absolution

The defendant has applied for absolution from the instance largely on the basis that the plaintiff has essentially failed to make out a case against the defendant that is deserving of a reply. It is also argued that the plaintiff had failed to prove any breach of contract entitling it to special damages.

In terms of general principles on absolution from the instance the case of United Air Charter v Jarman 1994 (2) ZLR 341 (S) condenses the position as follows:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which the court, directing its mind reasonably to such evidence 'could or might (not should or would)' find for him.”

The above principle draws on cases such as Supreme Svc (1969) (Pvt) Ltd v Fox Goodridge (Pvt) Ltd 1971 (1) RLR 1; Lourenco v Raja & Steam Laundry (Pvt) Ltd 1984 (2) RLR 151.

The principles have also been canvassed in a number of cases such as Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S); Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H); Dube v Dube 2008 (1) 326.

In seeking to put the defendants to its defence, it is argued, by the plaintiff, that the Bank knew who the directors were as these were indicated on the CR14 form. It is also argued that as the account in question was the plaintiff's sole business account it should have been apparent that it would suffer loss if it was not permitted to transact under that account. The dispute, it insists, could have been solved at a later stage. It argues that for reasons such as these, which are common cause, it has done enough to put the defendant on its defence.

The plaintiff also lays emphasis on the fact that at this stage it is not about whether the evidence is true or false. In its view, absolution should only be granted where it has failed to establish an essential element of its claim. The plaintiff emphasises its contractual relationship with the defendant; the fact that the defendant breached the contract. In support of this, the plaintiff points out that the money would have been paid to suppliers and not to themselves.

In opposing absolution from the instance, the plaintiff places reliance on the position articulated in the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) that in considering absolution from the instance a judicial officer should always lean in favour of the case continuing. If there is reasonable evidence on which the court might find for the plaintiff, the case should continue.

However, the preponderance to 'lean in favour of' is not the same as saying a judicial officer must always lean in favour of the case continuing. It is in cases where there is doubt that the court should lean in favour of continuing as SMITH J emphasized in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H). Where a judicial officer has no doubt in their mind from the evidence submitted, then by all means absolution should be granted. The key issue for consideration therefore is whether sufficient evidence has been placed before the court upon which the court might find for the plaintiff.

Factual and legal analysis

While damages are sought against the defendant as the unitary cause of the loss of business suffered by the plaintiff, the facts informing the claim are far from being one-dimensional.

The evidence that has been placed before the court indicates that an internal dispute and competing claims within the plaintiff company where at the heart of the chain of converging events that led to operational problems for the plaintiff company including the freezing of its account. Yet, only one cause, the freezing of its account is isolated by the plaintiff as leading to his perceived loss.

Just because a plaintiff strongly believes that a factor that he has isolated is the predominant cause of its problems does not exclude other explanations which have a bearing on the matter from being considered by the court in deciding whether sufficient evidence has been placed before it to exclude their impact.

Where a problem is multiply-caused, as in this case, the question of whether or not the court might find for the plaintiff on the evidence adduced, of necessity, depends on whether the evidence placed before the court, on a balance, sufficiently rules out other explanations as causes for the loss suffered by the plaintiff. In other words, if, from the evidence adduced it cannot be inferred, on a balance of probabilities, that the single behavioural event isolated by the plaintiff was the cause of its loss, then the evidence is simply not sufficient. The evidence adduced must, on a balance of probabilities, sufficiently pry apart other variables such as to leave the one the plaintiff relies on as the dominant cause. If, at the close of the plaintiff's case, insufficient evidence has been placed before the court to support an averment, this will not change even if the defendant is put to its defence.

What this court has before it at the conclusion of the plaintiff's case is a convergence of multiple factors, predominantly emanating from events within the plaintiff company that complicated the issue for the plaintiff.

The defendant's actions were largely responsive to such outside stimuli as opposed to being the dictator of them. Also, the defendant's actions, in refusing to release the funds, have to be put in perspective of the events that unfolded.

The Bank's client was the corporation. There was a dispute regarding the directors of the corporation. A criminal complaint was made by a competing director. The Registrar of Companies, at first, also confirmed the allegations of fraud and it was only in July when their initial position was reversed. Although a provisional order was obtained it is instructive that on the very day of its obtainment the dispute escalated rather than abated. The Bank was essentially faced with divergent claims to the account by two feuding parties each claiming legitimacy.

The plaintiff argues that the defendant breached its contract in failing to pay on demand.

Yet, in light of the facts, the Bank would equally have found itself liable to a claim from either of the competing parties to the account for wrongfully paying out of the account or un-authorised payment since each side had laid claim to the account.

There was no breach since its client was the corporation and competing claims had been placed before it by two sides within that corporation relating to its directorship. Only where the dispute was resolved in terms of clarity of directors could the Bank safely pay out. Only a foolish Bank would have paid out to any of the claimants without a final court order as to the true status of each of the claimants.

While the defendant may have acted on the strength of the documents written by the Registrar of Companies it was not the author of these documents.

The plaintiff also rests its argument for dismissal of absolution on the basis that it suffered damages as a result of the breach.

The case of Trust Bank of Africa Ltd v Marques 1968 (2) SA 796 (T) is cited in support of the contention that a Bank which fails to honour cheques when funds are available risks a claim of damages. The plaintiff argues that the contracts it placed before the court were sufficient, namely, those from OK Zimbabwe and the TN credit facility.

Finally, the plaintiff also argues that its loss was not remote.

Special damages are ordinarily regarded in law as being too remote to be recoverable. They are claimable in situations where it can be deduced that the parties actually or presumptively foresaw that they would probably flow from a breach of contract and were within the contemplation of the parties. As stated by GUBBAY CJ…, in United Air Charter v Jarman 1994 (2) ZLR 341 (S) in determining whether they are claimable it is of assistance to look to;

(a) The subject matter and terms of the contract itself;

(b) The special circumstances known to both parties at the time they contracted.

I do not think that damages arising from a quarrel among the directors was within the contemplation of the parties. In any event, the core point remains whether sufficient evidence has been placed before this court to justify such damages.

One crucial manner a purportedly dominant claim, particularly one for damages, is strengthened is by way of statistical evidence to support it.

Being a claim of special damages, the plaintiff had the responsibility to prove its quantum of damages by placing all relevant evidence before the court in order to prove its claim. Such special damages will not be granted if they are too remote.

The defendant argues that the evidence placed before the court was too scanty. No proof of invoices or proof of orders that were received and needed honouring by the Bank were submitted to the court by the plaintiff. These would have provided irrefutable proof of business that was actually lost. Also, the plaintiff did not produce any evidence which would have supported their position that the money that the defendants refused to pay would have been going to suppliers and not to themselves.

In seeking absolution from the instance, the defendant further argues that the plaintiff's books of accounts and tax returns would have been proof of the plaintiff's profitability as alleged by its Director. The plaintiff's director, in cross examination, averred to the existence of these documents but admitted that they had not been brought to court. In its written arguments against absolution the plaintiff then stated that the audited accounts were taken by the Smith Brothers and that the tax returns are filed with the taxman and can always be taken into account in damages.

Even if the plaintiff's argument is accepted that the books were taken away and that the tax returns were filed, it cannot, in my view, escape the responsibility of ensuring that these were placed before the court given that they form the heart of the dispute. It is not for the defendant to go and extract tax returns for the plaintiff. That was clearly the plaintiff's own responsibility. It is also not the plaintiff's averment that the soft copies of the accounts are what was taken. They simply state that the accounts were taken by the Smith brothers.

As argued by counsel for the defendant, where evidence is available that would assist the court to properly quantify damages and it is not produced, then the matter must fail and the defendant must be absolved from the instance. The case of Monumental Art Co. v Kinston Pharmacy (Pty) Ltd 1976 (2) SA 111 was cited in support of this contention.

Also, a party who shies away from producing evidence cannot escape the inference that he knows that such evidence will not be favourable to him. The cases of Ntsomi v Minister of Law & Order 1990 (1) SA 512 (C); Tshishonga v Minister of Justice & Constitutional Development and Anor 2007 (4) SA 135 were cited by the defendant.

If accurate statistical evidence that is representative of the company's steady growth and success of over the years, as exemplified by tax returns, was available, then, it should have been obtained. How else would the court know from the outset that it is not dealing with isolated phenomenon in so far as the plaintiff's claims of a steady growth of the business over a number of years is concerned?

The plaintiff director's own testimonial evidence of growth and projected profits is not the kind of evidence that the court has in mind as constituting “sufficient evidence upon which the court might find for the plaintiff.”

In cases of this nature, where loss of business is alleged, tax returns and audited accounts constitute the type of evidence that would, on the face, constitute a sufficient basis for a claim upon which the court might find for the plaintiff.

Therefore, on the issue of damages for loss of business the strength of the plaintiff's evidence is essentially 'dead in the water' as a result of the failure to place the kind of credible evidence that one would expect of a company as pointed out by the defendant in its application for absolution from the instance.

At the close of the plaintiff's case, the preponderance of evidence did not point to the defendant as having been the actual cause of its loss or even being in any way the major cause of the plaintiff's loss. I am satisfied that there was insufficient evidence on which a reasonable court could or might find for the plaintiff.

The defendant seeks that costs be awarded on a higher scale especially on the grounds that the plaintiff had ample time to put all its evidence together in preparing for trial, and, as such, it has been put through an unnecessary expense.

Costs, in general, recompense a successful party for expenses to which he has been put in defending a claim. They are generally awarded on an ordinary scale. Courts are reluctant to award costs on a higher scale because they are highly punitive.

It would seem to me that the overall weakness of the plaintiff's case has emerged from the totality of having his day in court to present his case as he is entitled to. It would therefore be, in my view, tantamount to exercising hindsight to land him with costs on a higher scale.

The application for absolution from the instance succeeds with costs on an ordinary scale.