Cleopas Matenga v Amanda Zietsman

### Preamble
1
HH 512 - 25
HCH 4193/24
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CLEOPAS MATENGA 
versus
AMANDA ZIETSMAN

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 14, 28, 29 July 2025 & 08 September 2025

Summons Commencing Action - Application for absolution from the instance

A Ruwita, for the plaintiff

P B Saurombe, with Ms Kawenda, for the defendant

MAMBARA J:

This matter comes before the Court as an application for absolution from the instance at the close of the plaintiff’s case. The plaintiff, Mr. Cleopas Matenga, sued the defendant, Ms. Amanda Zietsman, for damages arising out of a road traffic accident. His claim, totalling approximately USD 108,766.27 was premised on the sole negligence of the defendant in causing the collision. At the close of the plaintiff’s case, the defendant applied for absolution from the instance, contending that the plaintiff failed to establish a prima facie case upon which a reasonable court might find for him. The task for the Court is therefore to determine whether, on the evidence led, the plaintiff has adduced sufficient evidence “upon which a reasonable court might find for the plaintiff”. If not, then absolution must be granted, sparing the defendant the burden of mounting a defence to a claim that cannot succeed.

BACKGROUND

The claim arises from a road traffic accident on 10 September 2023 at around 1300 hours, along the Harare–Chirundu highway (near Magunje turn-off). The then-82-year-old plaintiff was a pedestrian who attempted to cross the highway to meet his brother at a bus stop. He was struck by a motor vehicle driven by the defendant and sustained injuries requiring medical treatment. The plaintiff subsequently issued summons on 25 September 2024, claiming a total of USD 108,766.27 as damages. The components of this claim included approximately USD 43,766 in past medical expenses, USD 5,000 in future medical and rehabilitation costs, and USD 55,000 in “general damages” (broken down into USD 30,000 for alleged past and future loss of earnings, and USD 25,000 for loss of amenities of life). Notably, the pleaded basis of the claim was that the defendant’s sole negligence caused the accident.

In her plea, the defendant denied liability in toto. She averred that she had exercised reasonable care: keeping a proper lookout, hooting a warning, and braking immediately upon perceiving the plaintiff on the road. The defendant’s position was that the plaintiff suddenly dashed into the roadway, creating an emergency that even a prudent driver could not have avoided. Thus, the fundamental issues for trial were:

whether the defendant was negligent in failing to exercise reasonable care while driving; and

if so, whether such negligence was the sole cause of the accident and the plaintiff’s resulting injuries and losses.

These issues framed the dispute as one of sole negligence versus no negligence. The plaintiff did not plead any contributory negligence on his own part.

The matter proceeded to a full trial. The plaintiff gave evidence on his own behalf and called two further witnesses: George Nemuru, the police officer who attended the accident scene, and Folliot (Folloit) Chidhakwa, a self-described road traffic accident expert who evaluated the incident. After the plaintiff closed his case, the defendant applied for absolution from the instance. The essence of the application is that the plaintiff’s evidence, even taken at its highest, falls far short of establishing negligence on the part of the defendant as pleaded, and in fact undermines the pleaded case by pointing to the plaintiff’s own negligence. For a clearer understanding, it is necessary to review the salient portions of the evidence given by each of the plaintiff’s witnesses and assess the credibility and sufficiency of that evidence.

PLAINTIFF’S TESTIMONY

The plaintiff testified that on the day in question he was standing at the bus stop and decided to cross the road to check if his brother’s vehicle had arrived. He stated that he looked both left and right before crossing and did not see any oncoming car or hear any horn, so he proceeded into the road. Midway across, he was struck by the defendant’s vehicle and lost consciousness, only regaining it later in the hospital. He described the injuries he sustained and the treatment received, stating that he is still on medication and that the accident has affected his ability to work. He had been a maize and tobacco farmer. Importantly, the plaintiff admitted that he personally did not pay for any of his medical expenses. All the hospital and emergency costs were paid by his younger brother. Receipts for those expenses incurred by the brother were produced in evidence by consent. The plaintiff also produced no evidence of his income or earnings before the accident, nor any concrete proof of the general damages claimed. These claims remained unsupported by documentation or expert testimony.

Under cross-examination, Mr. Matenga’s testimony exposed critical weaknesses. He conceded that he did not see the approaching car that hit him and did not hear the vehicle’s horn, even though an independent bystander had reported that the car sounded its horn prior to impact. Confronted with the implication that he must have been inattentive or “absent-minded” while crossing, he attempted to explain that the road had a “depression” or dip which might have obscured his view of the oncoming car. He insisted that he looked, but effectively admitted that the car could have been present yet unseen by him due to this dip. He further acknowledged that he had tendered no evidence of his pre-accident income or of the losses he purportedly suffered. When pressed, he could only say that such figures were “known by the doctors” or that his brother handled the expenses. Tellingly, the plaintiff was confronted with the fact that his own expert report produced as Exhibit P5, attributed some degree of contributory negligence to him – to which he responded that “those who investigated know better” and he would not dispute that opinion. By the end of his testimony, the thrust of Mr. Matenga’s evidence was that he himself contributed to the accident by failing to notice the defendant’s vehicle in time and walking into its path. He effectively admitted that he suffered no out-of-pocket financial loss since his brother paid the medical bills and failed to substantiate any of the substantial general damages he claimed. The Court observed that Mr. Matenga’s credibility was undercut by his evasiveness on key points such as how he failed to see the vehicle, and his lack of knowledge about his own damages. His explanation of a “depression” in the road, offered for the first time under cross-examination, appears to be an afterthought not corroborated by other evidence.

WITNESS 2: GEORGE NEMURU

The second witness, Mr. George Nemuru, is a police officer who attended the accident scene on 10 September 2023 and later drew the official sketch plan and compiled a traffic accident report. In his evidence-in-chief, Officer Nemuru testified that the highway at the scene was straight, level, and clearly marked, with good visibility in both directions. He observed blood stains on the road in the middle of the lane in which the defendant had been traveling, indicating the point of impact was roughly at the centre of the road. He explained technical aspects of his sketch plan, including a “point of perception” (Point Z or R) which he identified as the location where the driver should have first perceived the pedestrian. According to him, had the defendant been alert at that point, she could have reduced her speed or swerved to avoid the collision. Officer Nemuru opined that the defendant could have avoided hitting the plaintiff by braking sooner or moving left, since the impact occurred towards the road’s centre. He also noted the damage to the vehicle but did not provide a specific estimate of the speed at impact.

Under cross-examination, Officer Nemuru’s testimony became less supportive of the plaintiff’s sole-negligence theory. He confirmed that he had not made any determination of the defendant’s actual speed; he gathered no evidence of excessive speed and did not calculate stopping or braking distances. In fact, he conceded that he could not say the defendant was speeding at all – there was no proof she exceeded the limit or drove improperly fast. He also admitted that his report did not address the vehicle’s braking efficiency or distances, acknowledging that no traffic reconstruction analysis beyond the basic sketch was done by the police. Crucially, Officer Nemuru agreed that in an earlier criminal trial related to this accident he had testified that the plaintiff was not keeping a proper lookout and had effectively created a sudden emergency for the driver. He maintained that, despite the emergency, in his view the defendant “could have” done more such as swerving left to avoid the impact. However, this view was speculative and not backed by any technical analysis. It was more an idealized hindsight suggestion than evidence of a concrete negligent omission by the defendant. Notably, Officer Nemuru agreed that the defendant did hoot a warning upon perceiving the danger – a fact consistent with the defendant having taken some precautionary action. In summary, this witness confirmed the plaintiff’s contributory fault (“the plaintiff might have created an emergency”) and failed to provide evidence of any specific negligent act or omission by the defendant beyond the mere occurrence of the accident. His evidence, at best, showed that the accident could have been avoided in a perfect response scenario, but it did not establish that the defendant breached a duty of care under the actual circumstances. The lack of any measurement of speed or distances means the court is left without objective data to conclude the defendant drove unreasonably.

WITNESS 3: FOLLIOT CHIDHAKWA

The third witness, Mr. Folliot Chidhakwa, testified as an expert in road traffic accident evaluation. He is a former police officer with 23 years’ service, 17 in the traffic section and some formal training in accident reconstruction, including a course in Aberdeen, Scotland. He presented an expert report (Exhibit P5) which he compiled in July 2025 at the request of the plaintiff’s counsel. Notably, he never visited the accident scene in person. His analysis was a “desk study” based on the witness statements, the police sketch plan, the criminal record, and even a Google Maps view of the location. In his evidence-in-chief, Mr. Chidhakwa opined that the defendant had been travelling too fast for the circumstances, even if below the posted speed limit. He pointed out that there was a bus stop/side road at the scene – a potential hazard – and that a prudent driver should have reduced speed when approaching such a spot. He noted the speed limit was 120 km/h and the defendant’s estimated speed, from some record, was ~80 km/h, but asserted that “under 120” can still be excessive if conditions demand caution. He highlighted the distinction between a “probable point of perception” (93 m away) and the “actual point of perception” (39 m) on the sketch plan, suggesting the defendant was not keeping a proper lookout or reacting as early as she should have. In Mr. Chidhakwa’s view, the defendant, upon seeing an elderly pedestrian in the road, ought to have treated it as an emergency, slowed down dramatically or stopped, rather than merely hooting. He concluded that the accident was avoidable had the defendant exercised reasonable care. The loud impact noise (“a loud bang”) and the fact that the plaintiff was dragged under the vehicle were, to him, indicators of excessive speed or inadequate reaction by the driver.

Crucially, Mr. Chidhakwa also acknowledged shortcomings on the part of the plaintiff. He testified that it was the pedestrian’s duty to check both ways and not to leave a position of safety unless clear. The plaintiff failed to do so and “thus he contributed to the accident”. In the expert’s opinion, although the plaintiff was negligent, “the driver bears the greater responsibility” because a driver must make the road safe, especially when aware of a vulnerable road user, in this case, an 82-year-old man who might react slowly. This effectively introduced a scenario of shared fault. The witness would apportion a higher share of blame to the driver, but admitted the plaintiff had also been negligent. However, it must be stressed that contributory negligence by the plaintiff was never pleaded in this case – a point I will return to in the legal analysis.

Under cross-examination, the probative value of Mr. Chidhakwa’s testimony diminished considerably. He conceded that his entire analysis was done from his desk without an on-site inspection. Thus, he had no first-hand observations of the road, such as the presence or absence of the “depression” the plaintiff mentioned, the visibility of signage, or other physical factors. He further admitted that he performed no calculations of stopping distance, reaction time, or speed based on empirical data. In essence, he offered no scientific reconstruction – no formulae or measurements were applied to determine how long it would take a car at 80 km/h to stop within 39 m, for example. He was challenged that his report added nothing beyond the police evidence, and he agreed that many of his conclusions mirrored the investigating officer’s observations without independent analysis. Tellingly, Mr. Chidhakwa admitted that there was “nothing expert about his evidence” beyond a general analysis of the documents. He confirmed that aside from pointing out what the defendant might ideally have done, he could not pinpoint any technical breach. For instance, he did not testify that the defendant’s reaction time was below standard, or that her vehicle had any defect, or that a specific speed would have allowed avoidance. In the end, Mr. Chidhakwa stood by his view that the plaintiff contributed to the accident though he did not quantify the degree of contribution. He could not refute that the defendant had hooted in warning (indeed he took that as a given), and he essentially agreed that all evidence now indicated this was not a case of sole negligence by the driver. The sum effect of the expert’s evidence is that it fell short of establishing the defendant’s legal negligence, and simultaneously buttressed the fact of the plaintiff’s own negligence in causing the accident.

SUMMARY OF PLAINTIFF’S CASE

At the close of the plaintiff’s case, the evidence on record was as follows: The plaintiff’s own account showed he did not see or hear the defendant’s car (suggesting a lapse in his vigilance) and that he incurred no personal expense for his treatment (undermining his claim for special damages). The police evidence failed to demonstrate any actionable negligence by the defendant, no evidence of speeding or other traffic violation, and even acknowledged the plaintiff’s failure to keep a lookout. The expert evidence similarly did not provide concrete proof of negligence by the defendant beyond speculative assertions, while confirming the plaintiff’s contributory fault. All three witnesses, in one form or another, departed from the pleaded case of sole negligence and indicated that the plaintiff himself was partly to blame for the accident. Moreover, none of the witnesses gave evidence to substantiate the quantum of damages claimed. The medical expenses were not borne by the plaintiff, and there was a complete evidentiary vacuum regarding the plaintiff’s alleged loss of earnings and general damages (pain, suffering, loss of amenities). In light of this state of proof, the defendant argues that no reasonable court could find in the plaintiff’s favour on liability or damages. I turn now to examine the legal principles governing absolution from the instance in such circumstances.

LEGAL FRAMEWORK

An application for absolution from the instance at the close of the plaintiff’s case tests the sufficiency of the plaintiff’s evidence before the defence is called. The time-honoured standard, originating in cases like Gascoyne v Paul & Hunter 1917 TPD 170, is “whether there is evidence upon which a court, applying its mind reasonably to the evidence, could or might find for the plaintiff”. This test – often quoted in Zimbabwean and South African courts – has been affirmed in modern decisions such as Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA). It is not a stringent test of definitive proof, but rather a threshold inquiry: has the plaintiff made out a prima facie case, meaning some evidence on each essential element of the claim, adequate to require an answer from the defendant? If an essential element of the cause of action has not been proven at all or if the plaintiff’s evidence is so internally contradictory or implausible that no reasonable trier of fact could accept it, then the plaintiff has failed to clear the bar for continuing the case. In such a scenario, the defendant should not be put to his or her defence. As Harms Ja observed in Gordon Lloyd Page, absolution at this stage “will be granted sparingly”, but when the occasion does arise, “a court should order it in the interests of justice”.

Our courts have repeatedly emphasized that a defendant is entitled to absolution if the plaintiff’s evidence, taken at face value and without speculating in the plaintiff’s favour, still falls short of establishing a viable claim. The High Court (per Muzofa J) put it succinctly in Kaplin v Naison & Ors [2024] ZWCHHC 37: an application for absolution may be granted where the plaintiff’s case is “self-destructive or an essential element of the claim has not been proved.”. Likewise, in Helen Judith Johnstone v Brian Murphy and Others, HH 238/25, I posited that the question is whether the plaintiff’s version, if believed, discloses a prima facie case on all requirements; if not, then absolution should follow to “spare the defendant from the burden and expense of mounting a defence” against a claim that cannot succeed.

In assessing an absolution application, the court does not lightly weigh credibility or resolve conflicts in evidence. Those are matters for a full trial if a prima facie case exists. However, where the plaintiff’s own evidence is so utterly discredited or inherently contradictory that no reasonable juror could accept it, the court may take that into account. For instance, if a plaintiff’s evidence proves the defence or undermines his own claim, the court is not obliged to turn a blind eye. As we shall see, that is a central issue in the present case. The plaintiff pleaded one thing (sole negligence by defendant) but proved quite another (negligence on both sides).

A further important principle is that a party is bound by their pleadings. Judgment can only be granted on a cause of action that has been properly pleaded. If a plaintiff wishes to advance an alternative basis for relief for example, to allege that both parties were negligent and perhaps invoke apportionment of damages, that must be pleaded – usually by amending the claim – so that the defendant is not ambushed by a case they were not called upon to meet. The Supreme Court has stressed that contributory negligence must be pleaded if it is to be relied on, as part of the “precise parameters” of the case. Absent such pleading, the court cannot make a finding of contributory negligence out of thin air or inconsistently with the pleadings. In Mashonaland Tobacco Co. v Mahem Farms (Pvt) Ltd & Anor S-152-20, it was aptly stated: “As a general rule, judgment cannot be granted on a cause of action that is not pleaded…there is no authority for ignoring the pleadings and giving judgment in favour of a plaintiff on a cause never pleaded.”. Therefore, if a plaintiff pursues only a claim of sole negligence, but all the evidence then shows shared negligence, the court cannot blithely ignore the divergence. The proper course, in the absence of amendment, is typically to refuse to grant relief on a case not pleaded.

In negligence claims, the plaintiff bears the onus to both allege and prove specific negligent conduct by the defendant. It is not sufficient to make a general averment of “negligence” without detailing the grounds. The plaintiff must establish the elements of duty, breach (negligent act or omission), causation, and damage. As Chigumba J observed in Memory Muzvidzwa v Gedion Chirongwe & CMED (Pvt) Ltd HH-88-17, “it is trite that in claims based on negligence the plaintiff must allege and prove that the defendant was negligent. It is not sufficient to allege negligence without detailing the particular grounds relied upon.”. Therefore, if a plaintiff fails to adduce evidence on any essential element – for example, if no proof of the defendant’s negligent act is given, or no proof that such negligence caused the harm – the claim cannot succeed. Similarly, if the evidence equally supports an inference of no negligence, the plaintiff would not have discharged the burden of proof. See: Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR 1 (A); United Air Carriers v Jarman 1994 (2) ZLR 341 (S).

An English authority often cited is National Employers’ Mutual General Insurance Association Ltd v Price [1937] AC 297, where the House of Lords emphasized that if the facts proved by the plaintiff are equally consistent with the absence of negligence (or attributable to the plaintiff’s own negligence), then the plaintiff has not made out a case to go forward. In other words, a mere accident, or an unexplained collision that could be due to innocent causes, will not by itself justify a finding against the defendant.

Finally, even if negligence and causation were established, a plaintiff in a damages claim must prove the quantum of damages with credible evidence. It is a basic principle that damages are not to be speculative. In Kaplin v Naison & Ors (supra), the court reiterated that the plaintiff “is required to adduce evidence, firstly to establish loss and secondly to justify quantum”, citing with approval the dictum that a court “is not expected to speculate on the quantum of damages to award where no quantum has been testified to.”. If a plaintiff fails to lead evidence substantiating the amount of special damages (e.g. by producing invoices, proof of payment, or expert calculations for future costs) or fails to provide a basis for general damages (such as comparative awards for similar injuries), the claim on those heads may be unsustainable. Zimbabwean courts and comparative jurisprudence in South Africa and elsewhere consistently hold that a claimant must put forth “conclusive evidence aimed at sustaining such a claim”, and that courts cannot pluck figures from the air in the absence of evidence. A case in point is Prime Real Estate v Knight Frank & Ors HH-89-13, where Bere J cautioned that a claim for damages “is not a walk in the park” and cannot be based on conjecture or speculation. Thus, a plaintiff who does not prove actual loss or provide a rational basis for the damages sought runs the risk of having the claim dismissed even if liability were shown.

ANALYSIS

In the present case, there is a stark mismatch between the pleadings and the proof. The plaintiff’s case was pleaded exclusively on the basis that the defendant alone was negligent and 100% liable for the accident. However, every witness (including the plaintiff himself) testified to facts indicating that the plaintiff also bore fault for the collision. The plaintiff never amended his pleadings to allege any contributory negligence or to allow apportionment. Yet his evidence unequivocally showed a scenario of shared negligence. For example, Mr. Chidhakwa concluded that the plaintiff failed to exercise due care and contributed to the accident, and the plaintiff in cross-exam did not dispute the finding of his own contributory negligence. This self-destructive turn in the plaintiff’s case is precisely the sort of situation contemplated in Kaplin v Naison, supra – the case has become “self-destructive” in that an essential element (exclusive fault of the defendant) was not only unproved, but disproved by plaintiff’s own witnesses. The law does not permit the Court to make a finding of contributory negligence out of the blue and apportion damages when contributory negligence was never pleaded. As the Supreme Court of Namibia observed in Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) (a passage cited in Mashonaland Tobacco, supra), a court cannot give judgment on an unpleaded cause and the least a party must do if a new cause arises is apply to amend. Here, the plaintiff did not amend to aver, say, that both parties were negligent. Consequently, the case the defendant prepared to meet (sole negligence) evaporated, and a new case (shared negligence) emerged in the proofs – a case which the defendant never consented to litigate. It would be fundamentally unfair and legally untenable to require the defendant to proceed to her defence under these circumstances. As was cogently put in the defendant’s submissions: “The Defendant cannot be asked to go on her defence when the case pleaded is now totally out of sync with the case led in evidence.”. Indeed, to ask the defendant to defend which case, exactly? The plaintiff has abandoned the very foundation of his claim (that only the defendant was negligent) and yet has not replaced it with any legally pleaded alternative theory. This alone warrant granting absolution, because no court can find for the plaintiff on sole negligence when the plaintiff’s own evidence proves contributory negligence. Under the old common law rule (which is preserved in Zimbabwe’s law aside from statutory apportionment for defences), a finding of contributory negligence without apportionment would bar the claim entirely.

Lord Atkin’s famed observation is apropos: if the plaintiff’s evidence shows the accident was caused by the fault of both parties, then the plaintiff has failed to establish the exclusive negligence of the defendant, and his claim fails (National Employers’ Mutual… v Price, supra). Therefore, on the issue of liability, the plaintiff has failed to make out a prima facie case that the defendant was negligent as alleged. To the contrary, his evidence suggests the defendant acted with reasonable care (she hooted, braked, and was confronted with a sudden pedestrian emergence), and that the accident was at least in part due to the plaintiff’s lack of caution. No reasonable court, applying its mind to this evidence, could conclude that the defendant was solely to blame.

Even if we momentarily set aside the pleadings issue, the plaintiff’s case fails on its own merits for want of proof of negligence by the defendant. Negligence in law involves the failure to observe the degree of care which a reasonable person would have observed in the circumstances. What more should the defendant reasonably have done here? The plaintiff led no meaningful evidence on critical elements of driver negligence.

Speed: There was no evidence that the defendant was speeding or driving at an inappropriate speed. Officer Nemuru admitted he could not say she exceeded the speed limit or that her speed was excessive. Mr. Chidhakwa’s suggestion that 80 km/h might have been “too fast” near a bus stop is speculative and not backed by any rule or calculation – notably, he acknowledged the defendant was within the legal limit and offered no expert analysis to quantify what a safe speed would have been in those conditions.

Lookout: There is no evidence that the defendant was not keeping a proper lookout. In fact, the very fact that she hooted and braked indicates she did notice the plaintiff, perhaps only at close range, but that may simply reflect the suddenness of the incident. The plaintiff’s counsel elicited no testimony to show that the defendant was distracted or not watching the road.

Reaction and Evasion: While the witnesses speculated that the defendant “could have” swerved left or braked in time to avoid the collision, there were no hard facts or reconstructions to establish that a reasonable driver would have managed to avoid the accident. The plaintiff’s side did not present any stopping distance analysis to show that, at the speed the defendant was traveling, she had sufficient distance to stop or manoeuvre upon first seeing the plaintiff. Without such evidence, the mere occurrence of the collision does not automatically prove negligence. Courts have long cautioned against reasoning post hoc from accident to negligence; one must be shown how the defendant’s conduct fell short of the reasonable standard. Here, both the police and the expert essentially testified that the defendant took at least some precautions (sounding the horn, braking) and that the plaintiff appeared suddenly. There is no contrary evidence indicating, for instance, that the defendant was speeding, or on the wrong side of the road, or using a phone, etc. In short, the plaintiff has not detailed the particular grounds of negligence as required. The case rests on speculation that because an accident happened, the driver must be at fault. That is not a sufficient basis in law for a finding of negligence. This evidentiary deficit triggers exactly the scenario for absolution: “an essential element of the claim has not been proved.”

Additionally, the plaintiff’s case failed to prove damages, which is an independent ground for absolution (or dismissal). Even had the plaintiff established some negligence by the defendant, his claim would collapse for want of proof of loss. The plaintiff claimed over USD 43,000 for medical and related expenses, yet he admitted he did not pay a cent of that. His brother covered those bills. The law is clear that one can generally only recover losses one has actually incurred or will incur. Expenses paid by a third party without any obligation of reimbursement are not the plaintiff’s loss. As was evident on the record, “the financial loss fell on the brother, not the plaintiff”, so this head of damages is unsustainable. Moreover, even aside from who paid, the plaintiff did not itemize those expenses in any detail at trial. A bundle of receipts was tendered but no witness walked the court through them to explain which costs were reasonable or necessary. The plaintiff himself had scant knowledge of the expenses – hardly surprising since he didn’t pay them.

On future medical or rehabilitation costs (USD 5,000 claimed): The plaintiff led absolutely no evidence to justify this figure. No doctor or occupational therapist testified about future treatment needs or costs. The medical report in evidence made no mention of any specific future expenses or their likely cost. The USD 5,000 figure is thus entirely unsubstantiated – as the submissions aptly put it, “hanging in the air without any justification”.

On loss of earnings (USD 30,000): The plaintiff claimed a large sum for lost income, yet provided no proof of his pre-accident earnings, no tax records, no farm accounts, not even an estimate of yield or pricing to show how the figure was arrived at. In cross-examination he admitted to not producing any evidence of income. There is also no evidence that he is incapable of work post-accident. He did not elaborate on the extent of any disability or how it affected his farming activities. Without baseline earnings data and post-accident incapacity evidence, a claim for lost income is purely speculative.

On general damages (pain, suffering, loss of amenities, valued at USD 25,000): again, no evidence was led to describe the plaintiff’s pain beyond the bare statement that he was injured and in pain, and no attempt was made to compare to other cases or justify the quantum. The plaintiff’s age and pre-accident lifestyle, and how the injuries diminished his amenities of life, were not explored in evidence.

In sum, the plaintiff failed to provide the “conclusive evidence” necessary to sustain a claim for damages. A court cannot embark upon conjecture in assessing damages where there is no factual basis, nor award an “arbitrary approximation” of loss to a plaintiff who “has failed to produce available evidence” of that loss. This principle echoed in Monumental Art Co v Kenston Pharmacy (1976) (2) SA 111 (O) and cited with approval in Zimbabwe directly applies here. The plaintiff’s damages claims are unsupported by evidence and thus not proved. It would be unjust to make the defendant face these claims in defence when the plaintiff has not established even a prima facie case on quantum.

Taking all the above into account, the Court is satisfied that the plaintiff has not made out a prima facie case on either liability or quantum. The evidence led by the plaintiff is so discredited and insufficient that no reasonable court could find for him. This is one of those exceptional cases where the plaintiff’s own evidence absolves the defendant, as it were. The plaintiff’s witnesses ended up corroborating the defendant’s core defence, that the plaintiff unexpectedly walked into the road, causing the emergency and conceding that the defendant did exercise reasonable caution by hooting and braking. Indeed, all the evidence indicates the defendant behaved as any reasonable driver would under the circumstances. To quote the South African case Mazibuko v Santam Insurance Co Ltd 1982 (3) SA 125 (A): when a defendant applies for absolution, the question is whether the plaintiff has produced evidence upon which a court “could or might find for the plaintiff” – “in other words, has the plaintiff made out a prima facie case?”. Here, the answer is a resounding no. There is no evidence of sole negligence by the defendant, and conversely there is clear evidence of negligence by the plaintiff himself. The plaintiff also left gaping holes in proof of his damages. Therefore, requiring the defendant to testify and be put through a full defence would serve no purpose except to give the plaintiff an opportunity to fish for a case he ought to have established in his own evidence. Rules of procedure and the law on absolution are designed to prevent exactly that. They ensure that a defendant is not put to the trouble of defence where a plaintiff has not met the minimum standard of proof in his own case.

It is worth noting that absolution from the instance is granted sparingly, not out of sympathy for defendants, but in recognition of the evidence (or lack thereof) in each case. See: Gordon Lloyd Page & Associates v Francesco Rivera and Anor 2001 (1) SA 88 (SCA) citing Marine & trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 @ 37G-38A.

In the present matter, the Court is mindful that, had there been the slightest evidence upon which a reasonable trier of fact might, even mistakenly, find for the plaintiff, the case should ordinarily be allowed to proceed. However, here the plaintiff’s case has entirely fallen apart. By the plaintiff’s own admissions and his witnesses’ concessions, his claim became untenable. As I observed in Johnstone v Murphy HH 238-25, the absolution stage focuses on whether the plaintiff’s evidence, taken charitably at face value, crosses the threshold of a prima facie case on all elements. In that case, as here, the plaintiff’s evidence was found lacking, and the Court emphasized that “no reasonable tribunal could find for the plaintiff based on the evidence presented”. So too in this case: no reasonable court could find for Mr. Matenga on the evidence he led. To allow the case to continue would be to ignore the inevitability of the outcome.

The plaintiff’s counsel argued in opposition to absolution that perhaps the defendant should still be made to testify, on the notion that the defendant might have peculiar knowledge of the incident. That argument is misconceived in these circumstances. This is not a case where the critical facts are peculiarly within the defendant’s knowledge (such as, say, an obscure technical malfunction only she knew of). The accident was witnessed by the plaintiff and documented by the police; the plaintiff had every opportunity to extract any helpful evidence either through his own testimony or via cross-examining the police. If anything, the defendant’s account would likely reinforce the version already before the Court – that she did what she could to avoid the accident. There is no principle that a defendant must always take the stand. Indeed, the very purpose of absolution procedure is to avoid unnecessary defences where the plaintiff has not made an adequate case. In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A), Beadle CJ warned against “causing an injustice” by forcing a defendant to undergo trial when the plaintiff’s case is fatally weak. Likewise, our rules should not be an invitation to “shelter behind procedure” for a defendant, but neither should they compel a defendant to present a case where none is needed. Here, justice is served by terminating the case at this juncture.

In sum, the plaintiff’s evidence is so defective and self-defeating that it has not established a prima facie case of negligence against the defendant. The plaintiff pleaded one thing and proved another, leaving the court with no coherent cause of action to adjudicate. Furthermore, the plaintiff failed to prove any recoverable damages, meaning even if liability were hypothetically possible, the claim would fail for want of proof of loss. This Court is therefore compelled to grant absolution from the instance.

DISPOSITION

In the result, the defendant’s application for absolution from the instance is granted. The plaintiff’s claim is hereby dismissed in its entirety. The plaintiff, who dragged the defendant to trial on a manifestly ill-conceived case, shall bear the costs of these proceedings.

It is accordingly ordered that:

The defendant’s application for absolution from the instance be and is hereby granted.

The plaintiff shall pay the costs of suit on the ordinary scale.

Mambara J: ………………………..………………………

Coghlan, Welsh & Guest, plaintiff’s legal practitioners

Chikuni & Associates, defendant’s legal practitioners