Patricia Mashoro t/a Amaveni Stockist v Delta Beverages (Pvt) Ltd

### Preamble
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HB 166/19
HC2164/13
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PATRICIA MASHORO

T/A AMAVENI STOCKIST

Versus

DELTA BEVERAGES (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 21 MAY, 17 SEPTEMBER & 31 OCTOBER 2019

Absolution from the instance

C. Chigomere & V. Mutatu for the plaintiff

M. Jaravaza for the defendant

MAKONESE J:	This is an application for absolution from the instance.

Plaintiff instituted proceedings against the defendant claiming payment of the sum of US$135 700,92 being loss of income arising from an alleged breach of contract by the defendant, together with costs of suit on a punitive scale.  The defendant opposed the plaintiff’s claims and filed a counter claim for payment of an amount of US$57 320,83 which it alleged was a debt arising from stock that was supplied to the plaintiff on credit.

At the commencement of this trial, Mr Jaravaza appearing for the defendant indicated that the amount sought in the counter-claim is not being contested. I propose to deal with that issue at the close of this judgment.

Evidence led by the plaintiff

The plaintiff led viva voce evidence from two witnesses before closing her case.   The evidence of PATRICIA MASHORO (the plaintiff) is essentially that she entered into an agreement with the defendant sometime in February 2013.  The agreement was oral.  The agreement was to the effect that the plaintiff would operate a stockiest business on behalf of the defendant. All the arrangements were done through an agent one Tafadzwa Chisango an employee of Delta. Tafadzwa made all recommendations acting on behalf of the defendant.  The plaintiff says she was advised that in order to operate a stockist she needed to comply with certain minimum requirements.  These included the renovation of the premises, employing a certain number of employees, and processing title deeds that were required as security.  Over and above these requirements, plaintiff met the costs of marketing the business in and around Kwekwe, Redcliff, Zhombe and Silobela.  She incurred expenses in acquiring fliers and did all she could to ensure that the stockist business would become viable and profitable.  In turn, the defendant was required to supply plaintiff with 3 truckloads of an assortment of beverages per day after the completion of such improvements.  It was the plaintiff’s evidence that defendant failed to abide by the terms of the agreement.  The defendant supplied the product erratically resulting in the business becoming unviable and unprofitable.  The defendant insisted that there was a verbal agreement with Tafadzwa and that no businessperson could operate a stockist business without the knowledge and blessings of the defendant.  Further, the plaintiff contended that she was supplied with signage by the defendant confirming that she was an authorized stockist.  Due to defendant’s erratic supply of beverages, plaintiff avers that she was compelled to close down the business.  She failed to recover all the costs she had incurred in renovating the premises.  She blames the defendant for breaching the verbal agreement and contends that she engaged the defendant’s representatives on the issue.  Some senior officials employed by the defendant including one Dr Nyandoro appeared to understand the plaintiff’s situation and undertook to look into the matter.  Plaintiff testified that despite all her efforts to resolve the issue of recovering her expenses she failed to reach an amicable arrangement with defendant.  The plaintiff was compelled to file this suit against the defendant.  In arriving at the expenses, she engaged the services of an accountant, on Kufa Chikamhi who prepared the financial statements.  The statements were certified by Peter Gunhe, a financial expert.  The plaintiff had the onus to prove a prima facie case in respect of the following issues;

the existence of the oral contract

(b)	the exact terms of the purported contract

(c) 	 that plaintiff did perform all the  obligations under the contract

(d)	that the defendant did not perform her exact obligations under the contract

(e)	the amount of the purported damages.

The plaintiff’s oral evidence was to a large extent contradictory and self-destructive.  It was difficult to follow the exact basis of her claim.  Her evidence was a mixed bag of irreconcilable and mutually exclusive evidence.  In her evidence, plaintiff gave the impression that Tafadzwa made a “suggestion” or “recommendation” to her that she should open a stockist shop.  Plaintiff says she went along with the “suggestion” to operate a stockist shop.  Under cross examination, plaintiff indicated that the decision to operate a stockiest shop did not come as a result of a “recommendation”, but rather, that it was a directive from Delta.  In respect of a recommendation, it is clear that no civil liability could arise because the recommendation would not be legally binding on both parties. In her evidence in- chief the plaintiff narrated that she was orally advised by Delta to obtain a surety or guarantee from the bank.  She had the option to secure title deeds which she could surrender as collateral security.  Despite processing the title deeds the plaintiff never surrendered the title deeds to Delta.  The plaintiff could not explain the quantities, numbers and values of the truck loads of beverages she was supposed to receive.  It emerged during the trial that different truck sizes with varying carrying capacities would deliver drinks on different occasions.  The plaintiff alleged that in certain instances expired goods were delivered.  No reasonable explanation was given by the plaintiff why she accepted the expired goods when she could have returned them.  The plaintiff’s conduct is not consistent with a person who has been in business for well over twenty years.  The plaintiff’s evidence was uncorroborated, unverified and unproven.  The terms of the oral contract are not clear and not consistent with the evidence adduced in court.  The plaintiff had difficulty in proving how she arrived at the damages she is claiming.  Firstly, she stated that she should have been making a gross profit of US$900 per day, had she received 3 truckloads of beverages delivered every single day.  From a gross profit of US$900 per day for 180 days (180 days from February 2013 to July 2013), she would have realised a projected gross profit of US$162 000.  By her own admission, her expenses would amount to US$123 900.  This figure includes salaries and other overheads.  These are expenses plaintiff would still have incurred and which she alleges she indeed incur over a 6 month period.  If the total expenses of US$123 900 are subtracted from the gross profit of US$162 000, the purported net loss would have been US$39 000, assuming the finance costs of US$3 510,96 are not taken into account.  This, however, is not what the plaintiff is claiming.  Plaintiff is claiming a net loss of US$135 700,92.  This claim has monumental hurdles to pass.  Its source or origin is not known.  The figures are not verified and cannot be verified.  These are figures plucked from the air.  There are no source documents.  The purported gross profit of US$900  per day is unproven.

The evidence of Peter Gunhe

The plaintiff called Peter Gunhe as the second and last witness.  He is an accountant holding a Doctor of Philosophy in Accounting Management degree.  He was called as an expert witness.  He was requested by plaintiff to verify the financial statements prepared by Kufa Chikamhi.  His main task was to ensure that the statements complied with international standards.  He was supposed to verify the accuracy of the figures in the financial statements.  He considered that it was not an essential requirement to have the source documents for as long as the financial statements were compiled in accordance with the expected accounting standards.  The problem with the evidence of Peter Gunhe is that he did not prepare the financial statements.  He did not participate in the production of the financial statements that form the basis of the claims.  He confirmed that if he had access to the source documents, he would make conclusions, in order to decipher whether or not the source documents were authentic. What stood out clearly from the testimony of this witness is that, without accessing the source documents, and not subjecting both the source documents and the financial statements to an audit, one cannot conclude with any degree of certainty that what is reflected in the financial statements is accurate.  To a large extent, the witness’ evidence is at cross purposes with that of the plaintiff regarding the expected net profit over the 6 month period.  In other words, the financial statements directly contradict with plaintiff’s own oral evidence on the expected net profit over the 6 month period.  According to plaintiff, the net profit over the 6 month period was US$39 020.  According to Gunhe the net profit reflected by the financial statements for the same period is US$105 956,48.  Both the plaintiff and Gunhe were agreed that from the net profit, all operational costs were to be deducted first, to arrive at the net profit or loss for the period under review.  Under cross examination, the witness testified that once financial statements are produced by an accountant there was no real need for source documents.  When it was put to him that he was misleading the court, he changed course, and stated that the documents may be availed if there was suspicion or upon request.  The witness conceded, however, that the purpose of source documents is to verify the accuracy and validity of source documents.  The witness insisted that his evidence was sufficient to sustain the plaintiff’s case.  He even suggested that where his evidence contradicted the plaintiff’s version, his evidence should be taken to be true.  The witness spoke at length about International Accounting Standards, which are formal protocols.  His evidence, however did little by way of assisting the court with relevant evidence required to establish a prima facie case.  It ought to be noted that the court was not impressed by the witness’ attempt to mislead the court.  It is settled in our law that in all claims that are contested, and where critical documents are required, it is a matter of elementary practice that such documents ought to be availed in order to prove the veracity of the claims.

The law on Absolution for the instance

The test to be opposed in deciding an application for absolution for the instance is well settled in our jurisdiction.  For an application for absolution not to succeed, the plaintiff must have led sufficient evidence at the close of her case to establish a prima facie case.  This simply means that at the close of the plaintiff’s case, the plaintiff would have failed to adduce evidence which a court, applying its mind reasonably to such evidence, the court could, or might find for the plaintiff.  See: Supreme Service Section (1969) (Pvt) Ltd v Fox &Goodrige (Pvt) Ltd 1971 (1) RLR 1(A), where BEADLE CJ state that:-

“The locus classicus of the cases dealing with the procedure at absolution from the instance is the Old Transvaal case of Gooscoyne v Paul and Hunter 1917 TPD 176.  In that case it was pointed out that an application for absolution from the instance stands much on the same footing as an application for discharge of an accused at the close of the evidence for the prosecution …”

In Taunton Enterprises (Pvt) Ltd & Anor v Marais 1996 (2) ZLR 3003 (H), MALABA J(as he then was) eloquently explained the law thus:

“The test is whether at the close of the plaintiff’s case there is evidence upon which a reasonable man acting carefully might (not should) give judgment for the plaintiff on the issues before the court.  The judicial officer is enjoined by law to bring to bear upon the evidence what the judgment of a reasonable man might be, but not what he thinks the judgment is …”

In all the circumstances of this case, the evidence led by the plaintiff is so confusing, contradictory and hard to follow.  One is tempted to come to the conclusion that the evidence of the plaintiff was meant to be in wide fishing net cast out in the wide open sea in the forlorn hope that something might be caught up in the net.  The net was, however, too wide, too porous that even the smallest fish could not be trapped in this net.  The evidence of the plaintiff is based so much on speculation and conjecture and even assumptions to the extent that one wonders whether the claim was well thought out.

According to Herbestein and Van Winsen, The Civil Practice of the Supreme Court of South Africa 4th Ed at page 681, the authors state that a decree of absolution from the instance is derived from Roman Dutch Law.  It is the appropriate order to make when after all the evidence the plaintiff has not discharged the ordinary burden of proof.  If at the end of plaintiff’s case, there is insufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution from the instance.  In D T Zeffet – The South African Law of Evidence 4th Edition at page 507, it is stated that absolution from the instance means that theplaintiff has not proved a case against the defendant and that this must be distinguished from a positive finding that no claim exists against the defendant.  see: Claude Neon Lights v Denel 1976 (4) SA 403A.

Disposition

Having analysed the law in respect of an application for absolution from the instance, and considered the facts as set out by the plaintiff, and the onus attendant upon the plaintiff in proving a prima facie case, it becomes clear that the plaintiff failed to establish a prima facie case at the close of her case.  The evidence of the two witnesses for the plaintiff was so confusing, contradictory and unreliable, that there would be no evidence upon which the defendant could be called upon to respond.  I have indicated that the issue of damages was not established.  The basis for the oral contract between plaintiff and defendant as claimed by theplaintiff is not supported by the facts.  The plaintiff was required to place such evidence before the court to establish the existence of an agreement whose terms were clear and consistent.

Having regard to the legal principles on absolution from the instance, I am satisfied that the application is merited and ought to be granted.

As regard to the defendant’s counter-claim, the plaintiff’s pleaded defence is that it is not liable to pay the sum of US$57 320 in that she incurred losses as a result of breach of contract.  The plaintiff further pleads as follows in the replication to the counter claim.

“Defendant states that the amount of US$57 320,85 is  subsumed in the amount of US$135 700,92, the defendant owes the plaintiff pursuant to the loss.”

The meaning of the word “subsumed” in the Oxford Dictionary is, is defined as,“inclusive or absorb (something) in something else.”

Quite clearly, the plaintiff’s defence is that her claims for the losses suffered or incurred, are included the amount of the counter claim.  At the commencement of the trial the defendant raised this issue with a view to have judgment entered in favour of the defendant by consent. I was taken aback when perusing the Heads of Argument for the plaintiff, when I observed that it was being argued that plaintiff is denying liability for the debt.  Such a position, in my view, is disingenuous, as by all accounts, the parties attempted to have judgment entered in favour of the defendant as provided in the counter-claim.  I am inclined to grant an order in the following terms:

The application for absolution from the instance be and is hereby granted in favour of the defendant.

The defendant’s counter-claim in the sum of US$57 320,82 be and is hereby granted.

The plaintiff is ordered to pay the costs of suit.

Mutatu& Partners plaintiff’ legal practitioners

Dzimba, Jaravaza& Associates, defendant’s legal practitioners