Hwange Colliery Company (Pvt) Ltd & 9 Ors v Extra City Luxury (Pvt) Ltd & Anor

### Preamble
1
HB 208/19
HC 981/16
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HWANGE COLLIERY COMPANY (PVT) LTD

And

ROSTEN BASI MOYO

And

MPILWENHLE HADEBE

And

TRISH NKOMO

And

GEORGE NYAKABAWO

And

FELIX SIBANDA

And

SHANTANI SHOKO

And

BRUCE PHIRI

And

SLYVESTER MADZOKERE

And

ANGEL DUBE

Versus

EXTRA CITY LUXURY (PVT) LTD

And

OWEN ZEMBE

IN THE HIGH COURT OF ZIMBABWE

BERE J

BULAWAYO 8 & 9 MARCH; 7 APRIL; 30 MAY & 12 JUNE 2018 AND 6 JANUARY 2020

Civil Trial

V. Majoko for the plaintiffs

R. Kwenda for the 1st defendant

No appearance for 2nd defendant

BERE J:	At the close of the plaintiff’s case Mr Kwenda, who appeared for the 1st defendant moved the court to grant absolution from the instance which application was strenuously opposed by Mr Majoko for the plaintiffs.

Mr Kwenda’s application was anchored on a number of  factors which I must confess completely took the court by surprise especially given the nature of the joint pre-trial conference minute filed by the parties in this court on 31 May 2017.

The 1st defendant’s counsel attacked what he perceived to be the shortcomings in the pleadings filed by the plaintiffs, the alleged lack of locus standi on the part of the first plaintiff as well as the only witness called by the first plaintiff Mrs Sizane Chigumira whom counsel believed ought to have been armed with the first plaintiff’s company resolution in order for her to appear in court.  First defendant’s counsel also attacked what he labeled lack of sufficiency of evidence from the rest of the plaintiffs as one of the reasons which prompted him to apply for absolution.

Both counsel have properly identified the principles of law that guides the court in sustaining the granting of absolution from the instance.  As correctly observed by counsel, the legal position is well settled in this jurisdiction.  In the much celebrated case of Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd the court formulated the legal position in the following:

“The test therefore boils down to this:  Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?  What is reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

In the case of United Air Charter v Jarman, GUBBAY CJ leaning on the ratio in Supreme Service Station case (supra) elaborated on the test in the following words.

“The test in deciding an application for absolution from the instance is well settled in the jurisdiction.  A plaintiff will successfully withstand such 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.

This court takes the view that the application for absolution from the instance lacked sincerity especially in the light of the joint pre-trial conference minute filed by the parties as a prelude to this trial.  The minute recorded the admissions made by both parties and singled out only one issue for referral of the matter for trial, after the parties had agreed under item 5 thereof that “the 1st defendant is liable for the medical bills the 1st plaintiff raised in treating the 2nd to 9th plaintiffs’”

The only issue which was referred for trial according to the minute was framed by the parties as follows:

“(a)	The quantum of special and general damages suffered by each plaintiff in respect of 2nd – 9th plaintiffs.”

The parties, having so agreed, it became illusionary for the first defendant to dwell so much on issues of locus standi of the first plaintiff.  The reason why parties spend so much time in framing the pre-trial conference minute before trial is to try and curtail proceedings by reducing areas of disagreement.  I believe, with the benefit of hindsight, the first defendant’s counsel should be able to realise the error he made by lodging this application.

In any event the status of Mrs Chigumira could not have been challenged in the manner suggested by the first defendant’s counsel if regard is had to the nature of her evidence and the  capacity in which she participated in this case immediately after the accident.  Her uncontroverted evidence was that at the relevant time she was a senior employee of the first plaintiff who deliberated on the issues with senior members of the first defendant’s employees guided by the need to protect the lives of the injured passengers who are now part of the 2nd to 10th plaintiffs.  It is not like Mrs Chigumira was a stranger to the first plaintiff or to the facts surrounding this case.  As MAKARAU JP (as she then was) noted in the case of Antonio v Ashanti Goldfields Zimbabwe Ltd and Anor;

“The employee who gives evidence on behalf of a corporate litigant must be suitably placed … to have knowledge of the facts that he testifies about.  This knowledge can be derived from the employee’s personal contact with the transaction in issue …”

As correctly observed by Mr Majoko for the plaintiffs, Mrs Chigumira’s testimony was based on her knowledge and personal contact with the transaction in issue as she was one of the first persons who received the patients (now plaintiffs) and liaised with first defendant on the issue of payments for services rendered.  In the court’s view, it is a misplaced appreciation of the facts of this case for Mrs Chigumira’s locus standi to be questioned.

It will be noted that the first defendant in paragraph three of its plea makes an attempt to deny that it was at fault and that the action should have been directed to its insurer, an averment which its counsel repeated in this application for absolution from the instance.

As already highlighted, this argument runs contrary to what the parties agreed on at the pre-trial conference.  In any event, on the issue of the proximate cause of the accident, the second defendant, who would be the only star witness for the first defendant unequivocally accepted liability in his own plea (see para 7 of his plea).

The argument that the plaintiffs should have directed their claim to the first defendant’s insurer did not sound attractive at all.  I did not understand first defendant’s counsel to be arguing that the Road Traffic Act as currently framed takes away from an injured party its right to initiate legal proceedings directly against the offending party.

Imprecise pleadings are not a sound ground for seeking absolution from the instance, more so where evidence has been led because any shortcomings in pleadings are usually cured by the evidence led.  This was the precise point made by BARTLETT J in Marais and Another v Kennedy & Anor when he stated;

“… where the court had all relevant evidence before it, it should not place undue emphasise on pleadings but rather decide the case on the real issues canvassed during the course of the trial.”

At the end of it all, one gets the impression that the application for absolution from the instance was either meant to test waters or a desperate attempt to avoid placing the first defendant on its defence.  I am reminded of the position taken by PATEL J (as he then was) in the case of Manyanga v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd  a case referred to by Mr Majoko where the learned judge stated:

“In principle a reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance.  And in practice, courts are loath to decide upon questions of fact without hearing evidence from both sides, and have usually inclined towards allowing the case to proceed.”

In conclusion, I am of the strong conviction that this application ought not to have been made at all.  It was unwarranted.

The application is dismissed with costs.

Messrs Majoko & Majoko, plaintiffs’ legal practitioners

Machiridza Law Chambers, 1st defendant’s legal practitioners