The
issue that rose for determination at the close of the plaintiff's
case was whether the plaintiff had adduced enough evidence of the
terms of the contract between the parties to enable a determination
to be made as to what the plaintiff was entitled to be paid by the
defendant.
The
plaintiff filed summons on 8 January 2014 claiming payment of
USD119,033=91 from the defendant for services rendered in terms of a
sub-contracting agreement for work done, as well as interest thereon
at the prescribed rate, and costs of suit. The plaintiff averred that
the defendant undertook to pay for all plumbing work done upon
receipt of payment from the principal for work specifically completed
by the plaintiff. The plaintiff averred, further, that, despite being
paid in full by the principal for the work done by the plaintiff, the
defendant made a partial payment and has failed, refused, or
neglected to pay the balance outstanding.
In
its plea, filed of record on 26 February 2014, the defendant denied
having any knowledge of the plaintiff and that any contractual
relationship existed between it and the plaintiff. The defendant
pleaded to having dealt with one Munyaradzi Chafa in his personal
capacity and denied ever dealing with his company, the plaintiff. The
defendant averred that it had paid Munyaradzi Chafa in full for all
the plumbing work done in the construction of Gushungo Dairy. The
defendant filed a counterclaim, a sum of USD29,603=38 in damages for
the alleged malicious concealment of the drainage system by the
plaintiff leading to a leakage and flooding which had to be rectified
by the defendant.
At
the hearing of the matter, the plaintiff led evidence through its
Managing Director, Mr. Munyaradzi Chafa, who said that he has been
working as a qualified Class 7 plumber for twenty one years, after
undergoing training at the Polytechnic. He told the court that the
plaintiff and the defendant have a contractual relationship, in terms
of which the defendant subcontracted the plaintiff to do plumbing
work, that is, all the piping, drainage, sewer and water reticulation
at the factory.
Three
interim payment certificates dated 14 June 2011, 14 October 2011, and
14 November 2011 were produced in support of the plaintiff's claim.
The first one was addressed to Classic Project Managers, in
connection with Gushungo Dairy Project, and headed “Plumbing Works
I.P.C. number 1 for M & C Plumbers. The witness explained to the
court that an I.P.C was an interim payment certificate. On I.P.C.
number 1, it was certified that the plaintiff had completed plumbing
works to the value of USD$44,333=54. The amount was due for ground
floor drainage and extra drainage work done. Engineer T. Chitakara,
of ProStruct Consulting Engineers, certified that he had checked and
corrected the claim submitted by the plaintiff and recommended
payment of the confirmed value of the work done. The I.P.C. included
a detailed description of the measured work done by the plaintiff.
The
second I.P.C. was dated 14 October 2011, and it was in regards to
civil works, ground floor drainage and sewer reticulation. It
certified that the amount provisionally payable was USD$43,669=87. It
stated that I.P.C number 1 had been incorporated therein but that the
work for ground floor drainage had been done twice because the pipes
initially laid had to be changed from those originally used to
stainless steel pipes. The last I.P.C. was dated 14 November 2011 and
it was in regards to ground floor drainage and sewerage. It certified
that the amount payable was USD$47,376=52 and that this sum excluded
water reticulation.
The
court noted that all the I.P.C's gave details of the material
supplied by the plaintiff, and that they all stated that the
plaintiff's submitted value for the work done had been checked and
verified by ProStruct Engineers. The payment certificates all stated
that the claim submitted by the plaintiff had been checked and
corrected and recommended a certain sum for payment. The payment
certificates also stated that the assistance of the quantity surveyor
would be called for in coming up with the correct figure for final
payment.
Mr.
Chafa told the court that the total amount due to the plaintiff on
the three I.P.C's was USD$135,000=. He produced a letter dated 3
July 2014. It is addressed to Classic Project Management, by
ProStruct Consulting Enginers, and copied to the plaintiff and to
Messrs Mahachi Gwaze & Partners, the quantity surveyors.
ProStruct stated that it had been approached by the plaintiff, who
had been a sub-contractor of the defendant, and that the total amount
paid for all measured civil works at the Gushungo Dairy Project, i.e.
roads and storm water, sewer reticulation, water reticulation and
external drainage amounted to USD$1,044,954=12 (one million forty
four thousand nine hundred and fifty four dollars and twenty four
cents) Of that sum, the amount payable to the plaintiff for external
drainage and sewer reticulation was USD$135,379=94 (one hundred and
thirty five thousand three hundred and seventy nine dollars and
ninety four cents). A breakdown of the total amount paid to the
defendant was given which showed the sums paid for sewer
reticulation, external drainage, water reticulation, bulk earthworks,
roads and storm water drains. The sum for water reticulation was
subject to certification by the water authority, ZINWA, or by the
Quantity Surveyor.
The
witness told the court that of the certified USD$135,379=94 due to it
the defendant paid USD$59,095=67, leaving a balance outstanding of
USD$119,033=91 which is claimed in the summons. Finally, the witness
denied being responsible for the alleged malicious concealment of the
drainage system and any resultant damages.
During
cross examination, Mr. Chafa told the court that he had responded to
an advertisement flighted by the defendant in a local newspaper and
submitted the winning bid to be the defendant's subcontractor to
plumbing works on the Gushungo Dairy project. He denied that he had
initially worked for the defendant in a personal capacity and pointed
out that the advertisement had specifically requested that registered
companies only should apply for the sub-contract. He admitted to
being paid allowances by the defendant for odd jobs which he did
before the plumbing work started. He said that the project was
delayed by five months initially.
Mr.
Chafa told the court that his contract with the defendant was to do
plumbing and to be paid everything minus five percent. He said that
it was a fix and supply contract and that the agreement was oral.
The
witness told the court that he had a cordial relationship with the
previous management of the defendant and that they operated on trust
and that trouble arose when the last manager of the defendant
returned to China and the current manager took over. He denied the
allegation of wrongdoing by allegedly conniving with the project
engineers to procure certification of the value of the work done by
the plaintiff, directly, which was an alleged anomaly due to the fact
that payment could only correctly be certified as being due to the
main contractor.
The
court did not formulate the impression that this witness was
incredible or that he was misleading it. Although he was a nervous
witness and somewhat sarcastic at times, during cross examination, he
did not change his testimony. The court believed him.
The
plaintiff's second witness was Mr. Audily Chatora, the Project
Manager of the Gushungo Dairy project.
He
told the court that his role was to coordinate the functions of the
main contractor and to approve and certify payments due to
consultants and to the contractors. He said that the process of
certification generally is that architects, engineers and quantity
surveyors perform certain duties in the certification process. The
role of the architect is to confirm that works done are fit and due
for payment. The role of the engineer is to inspect, and certify as
fit, and due for payment, works done by contractors. The role of
quantity surveyors is to qualify and check the engineer's
certificates and produce all encompassing certificates which are sent
to the Project Manager, who checks and concurs or disagrees with the
certified value of the work done. The Project Manager issues an
approval certificate which the client relies on before paying.
The
witness confirmed that ProStruct Engineers were the project
engineers. He told the court that there was nothing inappropriate
about the payment certificated which had been produced by the
plaintiff as evidence in support of its claim. The fact that the
plaintiff was mentioned by name on the payment certificate did not
mean that the plaintiff would be paid directly for the value of the
work done. The defendant would be paid directly, and was paid
directly, and in full, for the total value of the work done, by the
plaintiff and any other sub-contractors hired by the defendant. Mr.
Chatora admitted that he authored the letter of 21 July 2014,
addressed to Messrs Lawman Chimuriwo Legal Practitioners. In the
letter, he stated that Classic Project Managers were not privy to the
domestic arrangements between the plaintiff and the defendant. He
did, however, confirm that the value of the work done by the
plaintiff was USD$135,379=94 and that this valuation includes both
materials and labour. The letter also states that any and all
materials and plant which were procured and provided by the client on
the ground cannot be credited to the plaintiff. Mr. Chatora told the
court that the project managers did not have any queries regarding
the interim payment certificates and that the penultimate certificate
incorporated what had been certified previously in the interim
certificates. He told the court that he was not privy to the quantum
of remedial work allegedly done by the defendant. He confirmed that
all the works that needed rectification had been drawn to the
attention of the defendant.
During
cross examination, Mr. Chatora told the court that he had certified
the amount of money due to the plaintiff. He said that the I.P.C's
were issued correctly because they were addressed to the project
manager even though it was irregular that they referred to a
subcontractor directly and by name. He pointed out that the
penultimate certificate, number 10, which was admitted into evidence,
showed that all payments due were to be paid directly to the
defendant, the main contractor, and not to the plaintiff.
The
witness stressed that the role of the engineer is to authenticate the
work done, to design, monitor, inspect and certify work done, to
quantify the work done, and to certify its value. On being asked how
the engineer could possibly have known what rate to use in
quantifying the work done by the plaintiff, not being privy to the
terms of the contract between the plaintiff and the defendant, the
witness told the court he was happy with the quantification because
there are three levels of price checks and that the certification of
the value of the plaintiff's works passed all three levels of
checks so the project manager found no reason to query it. Finally,
Mr. Chatora told the court that if the client had bought any material
or supplied any plant and equipment, the value would have been
automatically deducted when the I.P.C's were issued, because their
accounting system was designed to be self-leveling, that is, to
deduct value due to the client before a final valuation of work done
is certified.
The
plaintiff's second witness came across as a poised and confident
professional who exhibited useful knowledge about the roles played by
the different players to the certification process. The court was
grateful to him for the insight that he provided. He did not exhibit
bias towards any party.
The
plaintiff then closed its case.
The
defendant then applied for dismissal of the plaintiff's case on the
basis that the plaintiff's claim, being based on contract, had not
been established because insufficient evidence had been led to
establish the terms of the contract, its operation, whether the
contract had been breached, the amount due to the plaintiff, what had
been paid to the plaintiff and the balance due - if any. It was
submitted, on behalf of the defendant, that the question to ask at
the close of the plaintiff's case is whether the plaintiff had
established a
prima
facie
case against the defendant.
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, meru
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 loathe 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.”
My
interpretation of the test to be applied to the question of whether
to grant absolution from the instance to a defendant at the close of
the plaintiff's case is as follows:
1.
The first question to be considered is whether there is any evidence
in, at the close of the plaintiff's case, upon which a court,
directing its mind reasonably to such evidence could or might find
for the plaintiff?
2.
The second question to be asked is whether there is any special
consideration or reason why the court should reject the evidence
adduced on behalf of the plaintiff (for example glaring
inconsistencies, or unacceptable variance with the pleadings filed of
record)?
3.
The third question that may be asked is whether the plaintiff has
failed to adduce any evidence, or adduced insufficient evidence, to
establish an essential element of its claim.
4.
Lastly, whether, an overall assessment of all the evidence adduced on
behalf of the plaintiff, the pleadings filed of record, the
annexures, the exhibits, all the discovered documents, coupled with
the viva
voce
evidence,
falls short of establishing the plaintiff's case, on the face of it
(prima
facie).
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).
It
is my considered view that, in this case, there is evidence upon
which this court, directing its mind reasonably to such evidence,
could or might find for the plaintiff. The defendant's submission
that the plaintiff failed to establish that there was a contract
between the parties is belied by its own express admission to the
nature and identity of the plaintiff and of the existence of a
contractual relationship between the parties. The admission forms
part of the joint pre-trial conference minute filed of record on 8
July 2014 and admitted into evidence at record pages 30-31 of the
plaintiff's bundle of documents.
In
my view, it cannot be said that there is no evidence of the terms of
the contract between the parties. Mr. Chafa told the court that the
contract was a verbal one to fix and supply and provide plumbing
services of which the plaintiff would be paid the full value less
five percent which would accrue to the defendant, the main
contractor. That is evidence of the terms of a contract on which a
court, directing its mind reasonably could or might find in favour of
the plaintiff. It is therefore disingenuous, in my view, to aver that
there was no evidence to establish what the parties agreed, what was
to be paid to the plaintiff, whether anything was actually paid, and
what the balance outstanding was. The plaintiff submitted Interim
Payment Certificates, whose authenticity was not disputed by the
defendant, and which show how the sum of approximately USD$136,000=
is computed, including details of materials allegedly supplied and
work done.
The
evidence of Mr. Chatora was clear and unequivocal in regards to the
certification of the value of the work done by the defendant as a
whole and by the plaintiff in particular. The plaintiff admitted to
being paid an approximate sum of USD$59,000= and stated that the
balance due to it is USD$119,033=91 as claimed in the summons. I
found no special consideration for rejecting the evidence adduced on
behalf of the plaintiff. In my view, the plaintiff did not fail to
establish any essential element of its claim. Both the plaintiffs'
witnesses were found to be credible by the court. There is no reason
why their evidence should not be believed by the court - on the face
of it. There was no unacceptable variance with the pleadings or
glaring inconsistencies. All in all, the court finds that the
plaintiff established its claim on a prima
facie
basis.
The
defendant's application for absolution from the instance is not
sustainable. It is baseless and without foundation. It is dismissed.
Costs shall remain in the cause.
