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 ...
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.
