Africa Albida Tourism (Pvt) Ltd & Anor v Zimnat General Insurance

### Preamble
1
HB 122/25
AFRICA ALBIDA TOURISM (PVT) LTD
HC1800/22
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AFRICA ALBIDA TOURISM (PVT) LTD			HC1800/22

And

VICTORIA FALLS SAFARI LODGE HOTEL (PVT) LTD

versus

ZIMNAT GENERAL INSURANCE

SPENCERS CREEK (PVT) LTD 					HC1801/22

Versus

ZIMNAT GENERAL INSURANCE

HIGH COURT OF ZIMBABWE

M DUBE J

BULAWAYO, 19 FEBRUARY & 21 JULY 2025

Civil Trial- Absolution from the instance

Adv D.Tivadar for the plaintiffs

Adv T.R Mafukidze for the defendant

DUBE J:	This is an application for absolution from the instance in two highly contested insurance claims arising out of an outbreak of the then unknown virus world-wide. Scientists in their wisdom provisionally named the virus “Novel Coronavirus (nCoV) before settling on a permanent name. Today as we know it; It is called the Coronavirus disease or COVID-19. It is described as an infectious disease caused by the SARS-CoV-2 virus. (source https://www.who.int)

What these cryptic codes refer to, us non-medical geeks might not exactly decipher. What we know however is that the world is never as we knew it before. In short, the effects were and still are novel as this matter serves as live testimony.

As alluded to above, this matter relates to two matters being HC 1800/22 and HC 1801/22 which were consolidated. The consolidation was done as the two cases share common facts, witnesses and they invariably seek the same relief. The defendant is the same. The matter centres on two insurance claims for business interruption losses allegedly incurred by the plaintiffs due to the COVID 19 outbreak at their premises, subsequently intensified by a national lockdown directive. The plaintiffs contend that an outbreak of COVID 19 occurred on their premises, leading to the business interruption and subsequent financial losses. They assert that COVID 19 qualifies as a notifiable, contagious or infectious disease for the purposes of the policy. The Plaintiffs’ claims are predicated on a specific sequence of events leading to the alleged business interruption and financial losses.

In re AFRICA ALBIDA TOURISM (PVT) LTD HC 1800/22

The 1st plaintiff is Africa Albida Tourism (Pvt) Ltd, a company duly registered in accordance with the laws of Zimbabwe. The 2nd plaintiff is Victoria Falls Safari Lodge Hotel (Pvt) Ltd, a company also duly registered and is a wholly owned subsidiary of the 1st plaintiff. The defendant is an insurance provider also duly registered in accordance with laws of this country. It is common cause that the Plaintiffs held an insurance policy in respect of their tourism business, with defendant under policy number T4/.ASS/USP/009876 for the period 1st April 2019 until 1st April 2020. Specifically, the claim arises from Clause 5.8 within the ‘Loss of Revenue Section’ of the insurance contract. The clause provides coverage to the Plaintiffs against business interruption that results from the occurrence of a “notifiable contagious or infectious disease” at their business premises. They therefore seek payment of the sum of US$ 1. 066, 239.00 under their said insurance policy.

In re SPENCERS CREEK (PVT) LTD HC 1801/22

The plaintiff here is Spencer’s Creek trading as Ilala lodge, a company duly registered according to the laws of Zimbabwe. The defendant is Zimnat General Insurance Company an insurance provider duly registered in accordance with the laws of Zimbabwe. Plaintiff held an insurance policy in respect of its premises, being Ilala Lodge, with defendant under policy number T4/.ASS/USP/00145703 for the period 1August 2019 to 1 August 2020. The plaintiff seeks payment of the sum of US$ 1. 400, 000.00 under the insurance policy.

The background facts of the matter are common cause. The plaintiffs assert that from March 7 to March 10, 2020, two elderly guests, identified as Mr. and Mrs. O'Shaughnessy, were accommodated at Ilala Lodge, Victoria Falls. During their stay, they reportedly contracted COVID-19, exhibited certain symptoms, sought medical attention around March 7, 2020, and subsequently tested positive for the virus.

The plaintiffs led evidence from their various employees who detailed a chain of contacts and possible infections In brief that; the O'Shaughnessys were in contact with employees of Ilala Lodge, which led to six of Ilala Lodge’s employees, including Jacob Mapetere, developing COVID-19 like symptoms around the same period. In general they all felt flue like symptoms. They felt weak, nauseous, with chest pains, a severe head ache, a cough and in most cases with a runny nose. Subsequently, Jacob Mapetere allegedly came into contact with two of the plaintiffs’ own employees, Lin Jones Pullen and Ovius Ngwenya. Shortly after this encounter, both Lin Jones Pullen and Ovius Ngwenya also developed COVID-19 like symptoms. The narrative continues, stating that these two plaintiffs’ employees, in turn, had contact with other employees of the plaintiffs, who also subsequently developed COVID-19 like symptoms. The plaintiffs give a detailed account of the infection chain, from guests to Ilala Lodge employees and then to the plaintiffs’ own staff. Some of the employees sought medical attention from local private doctors while some resorted to home remedies. Notably none were tested for the COVID 19 virus.

The Plaintiffs led the evidence of Desmond Gerald Stevens. He testified that he is an insurance broker by profession in the tourism industry. Both Plaintiffs are his clients. They had taken out policies with the Defendant covering business interruption due to an occurrence of a notifiable disease at their premises. COVID 19 is a notifiable disease. According to this witness this notifiable disease occurred at his clients’ premises. Their premiums were all paid up. He duly notified the Defendant through its Ms Chigayo. She never mentioned that the notification was invalid. He was given a form to complete in respect of each Plaintiff. He protested that the form was not correct as it related to “Fire and Allied Perils”. Defendant’s representatives insisted that it was the correct form. It is through this witness that Exhibit “A” was produced i.e the “Zimnat Assets All Risk Insurance Policy” , Exhibit “B” the “Insurance Schedules”, Exhibit “C” emails exchanged during the notification process, Exhibits “D &E” being the Defendants responses effectively refusing to honour the claims.  This witness was cross examined quite extensively.

The Plaintiffs further called a medical expert witness a Dr M.D. Jeans who stated that he is a medical doctor with a post graduate degree in Tropical diseases. He stated that at the time relevant to these claims he was working as a medical doctor in Victoria Falls. He was the first person to diagnose the very first COVID 19 case in Zimbabwe before he went on to diagnose many others. At some point he was appointed to be the lead doctor for the COVID 19 team in Victoria Falls. He was present in court when the employees of the Plaintiffs testified. He testified to the effect that in his opinion he concluded that on a balance of probabilities they probably had contracted COVID 19. He said he drew his conclusion from the fact that the O’Shaughnessy couple met the classifications of a COVID 19 case. They had a reported COVID exposure, they came from an area in the UK which was experiencing an ongoing transmission of COVID. They were in contact with the employees of the Plaintiff via a chain of contacts. He went on to comment that this couple fitted what he termed the Clinical Criterion as they had symptoms similar to those of COVID as well as the signs picked by the doctors who attended to them. He stated that finally they presented what he termed the Presumptive Laboratory Analysis being a positive anti body test upon their return to the UK.

As for the employees he stated that even though they did not test for COVID 19 they do fulfil the exposure criteria within the 14-day exposure period and they developed symptoms consistent with COVID19 infection as the timing was outside the usual influenza season in both the UK and Zimbabwe. The witness then said some people could carry the COVID 19 virus without showing any symptoms. He further stated that at the time people could not be immediately tested as there was no laboratory in Victoria Falls that could carry out COVID 19 diagnostic tests. However, the treatment they received for those who sought it, was consistent with COVID 19 management at the time.

This witness was also quite extensively cross-examined. His findings were compared to those of the doctors who personally examined the O’Shaughnessy couple. These were Dr D. Ndikudze of Chinotimba Medical Centre who assessed the couple on the 8th March 2020 and Dr F. Musinami-Mvura the District Medical Officer for Hwange who cleared them as free from Covid and cleared them to travel back to their country of origin the following day on the 9th. It came to light that both these doctors did not carry out COVID tests but relied on interviewing the patients.

On the part of the Plaintiffs, in an effort to contain the COVID-19 outbreak and in compliance with a national directive issued by the President of the Republic of Zimbabwe on March 27, 2020, the plaintiffs assert they were compelled to close their business premises. The plaintiffs claim that this mandatory closure lasted for at least three months from March 30, 2020.  They claim that as a direct consequence of this business interruption and closure, the plaintiffs allege a total loss of income amounting to US$ 1,066,239.00 for the matter under HC 1800/22 and US$1, 4000.000.00 for the matter under HC 1801/22.

The plaintiffs led the evidence of one Simbai Griffiths Matsika a holder of a bachelor’s degree in Commerce with 24 years of experience in the insurance industry. He stated that he runs his own company as a registered insurance broker and was consulted by SATIB Zimbabwe to calculate business interruptions for the plaintiffs. Basically it was on the basis of his calculations that the claims quantum are based.

The matter was postponed from the 27th January 2025 to the 20th -22nd February 2025 for continuation of trial. Counsel for the Plaintiff indicated that he would utilise the intervening time to consider whether to call further witnesses or not. Upon resumption on the 20th he indicated that he was closing the Plaintiff’s case. Counsel for the Defendant then indicated his intention to bring forth an application for absolution from the instance and proposed to be allowed about 2 weeks within which to file his written submissions and then argue the matter virtually. Plaintiff’s Counsel protested the lack of prior notice as they had prepared for opening of Defendant’s case. I made a ruling that at law there was nothing amiss with such move, even though as a way of showing courtesy towards each other as senior counsel, it could be desirable that counsel do not take each other by surprise as if in a game of poker. Be that as it may I allowed for filing of written submissions and presentation of argument virtually.

I will not comment in detail on the evidence led by the plaintiffs witness by witness and the detailed cross examination each was subjected to, as I am of the view that the credibility or otherwise of the witnesses is not what is in issue at this juncture.

The Application for absolution from the instance.

Preceding the application, counsel for the Defendant launched a scathing attack on opposing counsel’s conduct of attaching a sworn statement and attachments together with its written submissions. He argued that such amounts to smuggling of evidence into the record. The document that triggered counsel’s ire is an affidavit by Plaintiff’s instructing lawyer Mr D. Coltart purporting to answer their failure to call the O’Shaughnessy couple as they appear to be central to this whole claim. Quite interestingly, despite the spirited protestation counsel embraced the contents of the same document and converted it into a spring board from which to launch his application for absolution from the instance. He by implication condoned and ultimately acquiesced to its admission. He interpreted the sum total of the document to be that;

The O’Shaughnessy couple have flatly refused to take part in this litigation from the outset.

They could not be available as factual witnesses.

They did not submit themselves for any COVID 19 tests even upon arrival in their home country.

Their COVID 19 test results were never available.

That Plaintiff’s lawyers knew of this position and forged ahead with this claim nonetheless.

On the said document he came to the conclusion that in whatever case, there is no proof that the elderly couple had COVID 19 at Ilala Lodge. He argued that with this knowledge the Plaintiffs deliberately avoided calling the two local doctors Ndikudze and Dr Musinami-Mvura for fear that they would rule out any probability of COVID from their observations.

On the evidence led he argued that the Plaintiffs’ causa was based on an insurance contract. The contract required that there should be proof that a notifiable disease occurred at the insured premises. If not the claims should fail. He emphasised that for the claim to succeed it should be proven that the causa occurred at a particular time and the particular premises owned by the Plaintiffs. He strongly contended that if the Plaintiffs cannot prove that a notifiable disease occurred at either Ilala Lodge or Spencer’s Creek then their claims must fail without further ado.

He argued that the official position per Dr Musinami-Mvura who cleared the tourists was that the tourists were free from COVID 19. There is no evidence led by the Plaintiffs to show that the said Doctor was wrong.

Counsel argued quite forcefully that the insurance cover is for the occurrence of COVID 19 not its symptoms. That the symptoms shown by the elderly tourists might as well have been side effects of a malaria prophylaxis malof which they were confirmed to be taking.

He argued further that the notice to bring the claim was also made unreasonably out of time. That way it deprived the defendant an opportunity to carry out its independent investigations and to guard against a fraudulent claim. He contends that the Plaintiffs and their broker were confused as to the type of their cover. They thought it was for reduction for tourist arrivals yet in actual fact they were covered for the occurrence of a notifiable disease at their premises at the time of their cover. For that reason, that reduced turnover was not the covered peril. He argued further that when the Plaintiffs came to grips with the actual insured peril, they attempted to post facto adjust events and facts to suit the covered peril.

Counsel further attacked the quantum claimed as lacking authenticity from the source documents.

Finally, he prayed for the granting of absolution from the instance with costs on a punitive scale. His justification, he argues, being that the Plaintiffs knew from the outset that without the O’Shaughnessys’ testimony nor positive COVID 19 results they had a bad claim and forged ahead nonetheless in a manner that can best be described as taking chances.

The Opposition

Counsel for the Plaintiff put up an equally spirited opposition. He opened his argument by stating that there must be a compelling reason for the court to deny a party an opportunity to present its case at this early stage of the proceedings. He posited that the Plaintiff should be allowed to cross examine the Defendant and to make its own closing submission.

He argued that an application for absolution is not the correct stage in the proceedings to argue on the inadequacy of pleadings. That instead the test is a very high threshold one and that absolution can only be granted on matters where the onus rests entirely on the Plaintiff. He contends that this is not a stage where credibility of witnesses can be challenged.

He argues further that all the issues for trial have been narrowed down and agreed upon. For example the very first issue is;

“Whether the statement of claim was granted out of time…instead of the Notice to institute the claim”

On such issue it is the Defendant who bears the onus. If like in the instant case the Defendant has not yet led evidence, it can not be said to have discharged the onus upon it on the said issue. He argues that in any event in the present matter the claims were neglected and it is the duty of the defendant to prove that the rejection was justified and done correctly. Issue 1 also has sub issues such as the extension of time; was it granted or not and still it is the defendant who bears the onus of proof.

On issue 2 the onus is on the Plaintiff to prove that COVID19 happened at the premises of the Plaintiffs. Such proof it is argued is on a balance of probabilities as opposed to proof beyond a reasonable doubt. It was argued that they are 8 witnesses who testified for the Plaintiff to the effect that they had COVID 19 like symptoms. There is no proof that they had any other disease such as malaria. The expert witness called also testified under oath to the effect that he believed that they had COVID 19. It is therefore up to the Defendant to call its own expert witness to come and controvert such evidence if he or she can.

It was argued further that an affidavit by Mr Coltart was filed to answer the averment made in the Defendant’s heads of arguments to the effect that the O’Shaughnessey couple was available to be called. It is now common cause that such witnesses were not called by design but rather out of their unwillingness to avail themselves.

Plaintiffs’ counsel submitted that they admit that none of their witnesses were tested for COVID and that it can not be said with certainty that any of the witnesses or the O’Shaughnesseys had COVID 19. However on a balance of probabilities it is argued that they had COVID 19. The submission therefore that there is no evidence of COVID 19 is untenable.

In relation to the quantum of loses for Spencer’s Creek it was submitted that the Defendant admitted such quantum in its pleadings and therefore it was unnecessary to prove what has been admitted. In respect of Africa Albida it was contended that Plaintiffs led the evidence of Mr Matsika which was not challenged and for that reason it was unnecessary to lead further evidence.

On the issue of notice it was argued that such notice should be given on an event that could lead to a claim and not the claim itself.

It was further argued that the Defendant cannot seek to take advantage and benefit from its own malfeasance. In this case it was argued that per the testimony of Desmond Stevens, he was provided with the wrong form i.e for “Fire and Allied Perils” despite his protestations. He was assured that it is the correct form. The form was vague but nonetheless information was supplied in the format required by the said form leading to absurdities, for example “place of occurrence” was given as “Zimbabwe”. It was then agued that it is the Defendant who drafted and supplied the said form. It therefore cannot now take issue on the inaccuracy of the information given.

With regards to costs it was argued that the Defendant cannot use punitive costs as a threat to intimidate the Plaintiffs from pursuing their claims. Finally, it was prayed that the application for absolution be dismissed and that costs be in the cause.

The Law.

In the case of Lourenco v Raja Dry Cleaners & Steam Laundry Private Limited SC 96-84 the Supreme Court had occasion to discuss factors to be considered in determining an application for absolution from the instance such as in the present case. The apex court made reference to the earlier South African case  of Mazibuko v Santam Insurance Co Ltd and Anor 1982 (3) SA 125 (AD) at 133, where the court said, at 132H:

"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 plaintiff has made out a prima facie case”.

In casu the court is therefore not enjoined to carry out an in-depth analysis of the evidence led thus far or better still the cross examination that the witnesses were put through. The simple reason being that before the court is not the totality of the evidence from which the court may weigh issues on a balance of probabilities. I am further mindful that all questions and positive propositions of fact, together with hypothetical scenarios put forward to the witnesses by defendant’s counsel are not evidence. They are not facts put under oath. They remain what they are, propositions of fact.

Like earlier held by my brother MUSITHU J in the matter of Kadungure v Pervaiz HH822-22;

“A determination of an application for absolution at the close of the plaintiff’s case is one that places a court in an invidious position … An application for absolution requires that the court determines the dispute after having heard just half of the case.”

Faced with a similar predicament he cited the authors Herbstein & Van Winsen: In their work The Civil Practice of the High Courts of South Africa, 5th Edition, Vol 1 @ p 923 as follows:

“In view of the principles set out above, it is clear that a trial court should be extremely chary of granting absolution at the close of the plaintiff’s case. In deciding whether or not absolution should be granted, 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. When the plaintiff relies on an inference the court will refuse the application for absolution unless it is satisfied that no reasonable court can draw the inference for which the plaintiff contends. A court may grant absolution from the instance at the close of a plaintiff’s case if the plaintiff has failed to establish an essential element of the claim even though the defendant could have succeeded on exception or by way of special plea had the issue been raised by either procedure…”

In the present matter the Plaintiffs contends that from the background of  international tourists travelling into Zimbabwe, being accommodated at the 1st plaintiff’s premises, them displaying symptoms similar to those of COVID 19, coinciding with several employees falling sick and supposedly infecting those that come into contact with them, without a conclusive COVID test being done, they content that on a balance of probabilities the court must find that indeed COVID 19 occurred at all the insured premises. The Defendant is contending on the extreme that if no conclusive COVID19 test was done, then such insured peril “DID NOT” occur. I am of the view that the Plaintiffs pins their case on inferences.

In the matter of Yusuf Abdullah Gaibie and Anor v Alexander Paulo Castanheira and Anor SC 58-20 the Learned Justices of Appeal had this to say:

“The law to be applied in the present circumstances was eloquently articulated by MAKARAU JA in Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC 58/19 at paras 13-15 where she said the following:

“[13] The law on when a court may grant absolution from the instance at the close of the plaintiff’s case is settled. (See Supreme Service Station (1969) (Private) Limited v Fox & Goodridge Limited 1971 (1) ZLR 1 (A) and United Air Charters (Private) Limited v Jarman 1994 (2) ZLR 341 (S). The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff.

[14]	Expressed differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. If there is evidence on some but not on all the essential averments, absolution may be granted, for in that instance, the plaintiff will not be able to sustain and perfect its cause of action. This is so because an application for absolution from the instance stands on pretty much the same footing as an application for the discharge of an accused person at the close of the state case albeit on a lower threshold of the burden of proof.”

The apex court further made reference to the matter of Katerere v Standard Chartered Bank Zimbabwe Ltd HB 51-08 which was quoted with approval in Bakari v Total Zimbabwe (Pvt) Ltd SC 21-19. It was stated that:

“The court should be extremely chary of granting absolution at the close of the plaintiff’s case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim- Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403(A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26(A); Sithole v PG Industries (Pvt) Ltd HB 47-05.”

With the above eloquent exposition of the law I am of the respectful view that the failure to call the O’Shaugnessey couple does not of necessity sound a death knell on the case of the Plaintiffs. This court will greatly benefit from hearing the case of the Defendant and the closing submissions of both parties at the close of the entire matter. It is only then that this court can resort to an in depth analysis of every aspect of the evidence and consider its totality.

Resultantly it is ordered that:

The defendant’s application for absolution from the instance at the close of the plaintiffs’ case is hereby dismissed.

Costs shall be in the cause.

Webb, Low & Barry incorporating Ben Baron & Partners plaintiffs’ legal practitioners

Atherstone & Cook defendant’s legal practitioners