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
(4th
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:
|
ORIGINAL
CLAIM
|
AMENDED CLAIM
|
|
Head
|
Amount
|
Head
|
Amount
|
Ration: US$ – Z$
|
|
Medical expenses
|
Z$248 292,38
|
Medical expenses
|
US$2 000
|
US$1 : Z$24
|
|
Future medical expenses
|
Z$1 292 460,00
|
Future medical expenses
|
US$3 000
|
US$1 : Z$430
|
|
Psychological injury,
loss of general health, loss of amenities of wife
|
Z$6 000 000,00
|
Psychological injury,
loss of general health, loss of amenities of wife
|
US$1 500
|
US$1 : Z$400
|
|
Contumelia, humiliation
and defamation
|
Z$5 000 000,00
|
Contumelia, humiliation
and defamation
|
US$10 000
|
US$1 : Z$500
|
|
Loss of pension benefits
|
Z$115 136 000,00
|
Loss of pension benefits
|
US$90 840
|
US$1 : Z$1 267
|
|
Loss of earnings
|
Z$411 300 724,00
|
Loss of earnings
|
US$45 040
|
US$1 : Z$9 131,90
|
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 (3rd
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.
