It is common cause that TRIANGLE put in place an arrangement whereby each of its employees received a payment in United States dollars after dollarization in 2009. The arrangement was that each of its employees would receive payment in United States dollars, and, in respect of members of the Triangle Senior Staff Pension Fund who opted to remain with the Triangle Senior Staff Pension Fund, the question of the extent to which any payment or portion of payment in United States dollars was to be treated as a basic salary, and therefore pensionable, remained open.

TRIANGLE then purported to 'restructure' the conditions of employment of its employees, starting with the E Band employees. After negotiations with senior employees, the final restructured package was set out in a letter dated 31 July 2009. The letter carried a caveat that the employees would be advised, in due course, of the extent to which the current cash package would be pensionable. It is common cause that 11 of the E Band employees signed the letter. It was contended on behalf of TRIANGLE that, by accepting the revised remuneration offered each month thereafter 31 July 2009, the employees accepted this position by their conduct.

On 19 January 2009, a similar letter was dispatched to middle management employees, D Band. The letter was prepared by some of the E Band employees. 21 out of the 22 D Band employees signed the letter in acceptance of the 'restructured package'. Thereafter, restructuring of the salaries and other terms of employment of supervisory and skilled staff, C Band employees, was dealt with by way of a letter dated 24 August 2010. 29 out of the 34 C Band employees signed the letter and indicated acceptance of the revised terms.

The applicants contended that these changes to the conditions of employment were imposed unilaterally. It was submitted on behalf of TRIANGLE that the evidence does not support this contention.

I find myself in agreement with the position adopted by TRIANGLE, that the 'restructuring' of the remuneration packages was done in consultation with senior staff, E Band employees. It is common cause that 61 out of the 66 applicants signed acceptance of the new conditions of employment. Subsequently, the employees who had signed the letters received increases in their monthly cash packages which indicate further acceptance of the changes in their contracts. The letter of 16 August 2010 repeated the assertion that the review of the status of Defined Benefit Funds and of the Triangle Senior Staff Pension Fund was still in progress. The applicants continued to accept payment of their 'restructured cash package' on that basis.

Are the applicants bound by an issue estoppel?

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”...,.

The court finds that the applicants are estopped from enforcing their existing interests in the Triangle Senior Staff Pension Fund in the sense of recouping arrear contributions from TRIANGLE.

The plaintiff issued summons on 25 March 2011 for the payment of a sum of USD$8,936=56, being the balance due to him from the defendant in terms of an agreed early retirement package.

The defendant adopted the stance that it had paid all the amounts due to the plaintiff in terms of the parties' agreement.

The issue that the court must determine is whether the amounts paid to the plaintiff by the defendant for October, November and December 2010 constituted notice pay in terms of the early retirement package; and whether the additional payment of cash in lieu of leave and other benefits paid during October -December 2010 also formed part of the early retirement package. If they did not, then the plaintiff's claim must succeed....,.

From the evidence adduced during the trial, the pleadings, and the documentary evidence submitted to the court, the following facts are common cause;

The plaintiff is a former employee of the defendant who requested that he be given an early retirement package, three months before the date on which he was due to reach retirement age. In October 2010, in response to the plaintiff's request, a retirement package was negotiated between the parties. It was agreed that the plaintiff would be paid a sum of USD$25,873=12 by 31 December 2010.

On 5 October 2010, the parties signed an agreement which was titled 'Innocent Chitiki: Early Retirement Package'. Under 'statutory benefits', the plaintiff was to be paid a total of USD$11,148=, which was made up of three (3) units of notice pay, cash in lieu of leave, leave bonus, housing benefits during notice plus one month up to 31 October, full benefits except business allowances during notice period, telephone allowances. 'Other' benefits totaling USD14,725=12 included a vehicle, annual bonus, fuel up to one month after notice, Term 1 school fees, service pay, and additional gratuities such as relocation to Gokwe rural home at the defendant's expense.

It is common cause that it was part of the early retirement package that; all salaries and monthly benefits were to be paid as and when due up to 31 December 2010; all other benefits were to be paid in December 2010; the vehicle was to be released immediately.

It is common cause that the defendant was told to stay at home during the notice period and that the fact that he was not required to report for duty was the defendant's standard practice for retiring employees who worked in sensitive areas that were vulnerable to security breaches.

It is common cause that the plaintiff wrote a letter to the defendant asking for payment of his package to be deferred until after 31 December 2010, the date when he officially reached retirement age, in order to avoid incurring punitive tax obligations. It is common cause that the plaintiff initially wanted to be paid a package of USD$50,000= and that he felt shortchanged by the final sum of the negotiated package.

The plaintiff's claim appears to be premised on the supposition that he ought to have been paid notice pay as well as his monthly salary and benefits for the three month notice period during which he did not report for duty at the defendant's specific instance and request. The plaintiff understood that he would be paid the 'full package' on 31 December 2010. The monthly salary that he received in September, October, and November 2010 was not part of his three month notice pay, in his view.

Is this claim supported by the evidence or by the agreement between the parties? If it is, the plaintiff is entitled to be paid the sum of USD$8,936=56 which he is claiming from the defendant.

The plaintiff told the court that his contract of employment with the defendant terminated on 31 December 2010 and that the payments made to him prior to that were his normal monthly salaries and benefits and did not form part of the retirement package.

This evidence was directly controverted by the evidence of the two defence witnesses, Cindirella Masimbe and Effort Lungu.

The defendant's witnesses told the court that it was the defendant's policy to pay cash in lieu of service of the notice period especially for senior executives, such as the plaintiff, who worked in sensitive positions. They explained the payments made to the plaintiff in terms of exhibit 7, the gross amounts, and the net amounts paid. Their evidence was that the plaintiff was paid a slight excess of the agreed sum in the early retirement package.

Mr. Lungu was emphatic that the entire retirement package was reduced to writing and signed on the 5^th of October 2010, and pointed to the notes on exhibit 7 which clearly stated that; “…, all elements that were outstanding from previous meetings have been resolved and agreed…,.;” and “…, all salaries and monthly benefits to be paid as and when due up to 31 December 2010.”…,. This referred to the notice pay, which, according to the defendant, was to be paid in monthly installments to avoid the punitive tax regime prejudicing the plaintiff who only attained the retirement age in December 2010.

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but if the probabilities are equal it is not.”

See Milner v Minister of Pensions 1947 2 All ER 372…,. and Thulisani Dube Nyamambi v Bongani Ncube HB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC),the court said that:

“…, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book SA Law of Evidence, 4ed…, state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.”

In JOUBERT, The Law of South Africa, vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.”

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's or vice versa. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said and did while they were in the witness stand.

The plaintiff did not come across as a person who deliberately set out to mislead the court. What was clear was that he felt that the defendant had misled him into accepting less money than what was due to him, what he was entitled to, and what he wanted - which was USD$50,000=. What was equally clear was that the plaintiff was under the mistaken impression that the word 'package' referred to a lump sum - one off payment.

Operating under that misapprehension, he happily accepted the equivalent of his monthly salary for September - December 2010, while carefully planning how he would spend his 'package' once he got to his rural home in Gokwe. He suffered a rude awakening when he was paid his 'package' less three months cash in lieu of notice.

He was angry and confused.

The defendant told him that because he did not report for duty during those three months he was not entitled to a monthly salary, only cash in lieu of notice – but, it was the defendant's policy not to allow senior executives to report for duty during the notice period.

The defendant may have been crafty, or devious, in its negotiations with the plaintiff. But, if the unwittingly plaintiff agreed to be short-changed, is it our place, in these proceedings, to make that right when he agreed and signed for what he believed he was entitled to?

The evidence supports the fact that the plaintiff asked the defendant to defer payment of his package until January 2011 after he had reached the official retirement age to avoid paying punitive tax. There is no evidence that the parties agreed that the 'full package' would be paid in January 2011. The payment plan which appears on page 9 of exhibit 7 supports the contention made on behalf of the defendant that the cash in lieu of notice pay and the cash in lieu of leave were to be paid to the plaintiff on a monthly basis in October, November and December 2010. Although in terms of exhibit 1 the plaintiff made it clear that it was his intention to serve notice from October – December 2011, in reality that is not what transpired. The plaintiff did not report for duty during that period. He was aware of the defendant's policy. His evidence that other senior executives who did not report for duty during the notice period were paid their full salaries as well as cash in lieu of notice was bald, and unsubstantiated.

There is no evidence that the parties agreed that the whole package would be paid in December 2011 when the early retirement agreement itself contains contrary evidence.

The plaintiff failed to discharge the onus on him to prove his case on a balance of probabilities.

The probabilities raised by the evidence, coupled with the facts which are common cause, do not support the plaintiff's version of events and do not entitle him to the relief that he seeks. On the contrary, the probabilities support the defendant's version especially on the crucial point of whether there was ever any agreement between the parties that the package be paid as a whole at the end of January 2011 and whether the plaintiff had been given assurances that, despite not being required to report for duty, he would be paid his normal salaries and benefits until December.

For these reasons, the plaintiff's claim is dismissed with 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 second witness called by the plaintiff was one Leonard Nhari, a forensic scientist. One of the issues was whether or not Sandra Muir had acknowledged receipt of certain payments made by the Gurupiras. Mr Nhari's evidence was that after he had examined Sandra Muir's purported signatures on the questioned documents it was his conclusion that the signatures were not hers but forgeries or imitations.

In an effort to explain why the vehicles were registered in the names of its directors, the plaintiff sought to produce a document purportedly entered into by and between the directors, agreeing that the vehicles were the property of the plaintiff notwithstanding the registration.

The defendant denied signing such an agreement and alleged that the plaintiff had created the document for the purposes of the trial.

It is my finding that the document is not authentic. 

It was not concluded on the date allegedly appearing on its face. One of the signatories to the document has denied signing the document and the other was not called to give evidence authenticating the document. Further, I find the circumstances in which the document is alleged to have been made unconvincing. 

It is on the basis of these unsatisfactory features of the documentary evidence that I reject it.