U-Link Freight (Pvt) LTD V Matrix Fertilizers (Pvt) LTD AND Isaac NOAH

### Preamble
1
HH 510 - 25
HC 6970/22
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U-LINK FREIGHT (PVT) LTD

versus

MATRIX FERTILIZERS (PVT) LTD

and

ISAAC NOAH

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 17 July & 08 September 2025

Summons commencing Action - Application for absolution from the instance

F. Nyamayaro, for the plaintiff

P. Jonhera with B. Machekano, for the 1st defendant

2nd defendant in person

MAMBARA J:    The plaintiff, U-Link Freight (Pvt) Ltd, sued the first defendant, Matrix Fertilizers (Pvt) Ltd, and the second defendant, Mr. Isaac Noah, for damages arising from a trucking incident. The plaintiff’s claim comprises two heads: (a) US$35,000 as the value of a freight truck that was rendered a total loss, and (b) loss of income quantified at US$22,000 per month for the period during which the truck was out of operation. The plaintiff alleges that the second defendant – who was driving the truck at the material time – was acting in the course and scope of his employment with the first defendant. On that basis, the plaintiff seeks to hold the first defendant vicariously liable for the damage to the truck and the consequential loss of business. The trial proceeded, and at the close of the plaintiff’s case the first defendant moved an application for absolution from the instance, contending that the plaintiff had not established a prima facie case requiring the first defendant to answer. This judgment determines that application in the context of the evidence led and the applicable law.

Plaintiff’s Case

The plaintiff called one witness, Mr. Valentine Tafirenyika, to testify in support of its claims. Mr. Tafirenyika is an employee of the plaintiff company and was not personally involved in the underlying transactions, but he testified based on what he had been informed by the plaintiff’s director. His evidence was that the plaintiff’s truck, registration ACQ 3733, was entrusted to the defendants for a consignment from Johannesburg to Harare. The truck was involved in a road accident while being driven by the second defendant, Mr. Noah. It sustained severe damage which, according to the plaintiff, rendered it beyond economic repair. The plaintiff holds the second defendant responsible for the crash and asserts that the second defendant was at all material times the first defendant’s employee or agent, such that the first defendant should bear liability for his actions.

In support of these allegations, the plaintiff produced several exhibits. A police accident report was placed before the court (marked Exhibit P1), which recorded the basic details of the collision – including the destination of the truck (the first defendant’s business address in Harare) – but notably did not state any employment or agency relationship between the defendants. The plaintiff also produced an accident damage report (Exhibit P3), prepared by a third party, which opined that the truck was a total loss and not repairable. Additionally, the plaintiff tendered a document purporting to show its loss of income from the vehicle (Exhibit P4). This document – prepared by a company called Blazing Sun Investments – was described by the witness as a schedule of freight loads undertaken by the plaintiff’s trucks, meant to quantify the loss of business income attributable to the downtime of the damaged truck.

Upon scrutiny, significant evidentiary problems emerged in the plaintiff’s case. Under cross-examination, Mr. Tafirenyika conceded that Exhibit P4 did not actually pertain to the truck in question ACQ 3733. The schedule listed trips and revenues for a different vehicle registration ADC 2390, without any explanation why data from a different truck was being used as a proxy for the lost income of the accident vehicle. He further admitted that the schedule was not backed by any primary records, no invoices, contracts, bank statements or tax returns were produced to verify the listed freight jobs or income. Given that a transportation business would ordinarily issue invoices to its clients and receive payments documented in bank statements, the absence of such evidence was glaring.  Mr. Tafirenyika acknowledged under oath that such records should exist and are done simultaneously in the course of business. The inescapable conclusion is that the revenue figures presented in Exhibit P4 were speculative and unsupported. In colloquial terms, they appear to have been thumb-sucked rather than derived from verifiable business records.

With respect to the US$35,000 claimed as the value of the truck, the plaintiff’s evidence was equally frail. Mr. Tafirenyika testified that the plaintiff had obtained three quotations for the pre-accident value of the truck and chose the lowest quote of US$35,000. However, the only quotation produced in evidence was for US$45,000, which exceeds the claimed amount. No documentary proof of the supposed US$35,000 valuation was furnished, nor were the other two quotes disclosed. When pressed, the witness could not reconcile why the plaintiff would base its claim on $35,000 yet put forward a higher quote for $45,000, or what became of the lowest quote he referenced. This unexplained discrepancy casts doubt on the reliability of the plaintiff’s valuation. Moreover, no evidence was led as to the market value of the truck immediately before and after the accident, or the cost of repairs (if any), evidence that is ordinarily required to establish a proper quantum for property damage. The plaintiff did not, for example, call an expert valuer or produce a sworn valuation report. It relied purely on the unsubstantiated quotation figures.

Crucially, the only person who dealt directly with the defendants in this matter, one Mr. Johannes Zwart, the plaintiff’s director, was not called to testify. Instead, Mr. Tafirenyika relayed what Mr. Zwart had purportedly communicated to him about the transaction. He confirmed that all communications regarding the hiring of the truck and the arrangements with the first defendant were between Mr. Zwart and the first defendant’s representative (a Mr. Tatenda Chironga). Thus, Mr. Tafirenyika’s knowledge of the central facts, such as who the second defendant was, in what capacity he was engaged, and what was agreed between the plaintiff and first defendant, was admittedly second-hand. Much of his testimony amounted to what he had been told by Mr. Zwart, rather than what he personally observed or did. For instance, he asserted that the second defendant was presented as an employee driver for the first defendant, but this assertion was not based on any document or direct interaction he had. It was based on hearsay from his director. He also commented on the contents of Exhibit P3 (the damage report declaring the truck beyond repair), despite not being its author nor possessing first-hand expertise in vehicle assessment. This deprived the first defendant of any meaningful chance to cross-examine the actual source of that opinion.

On the issue of the second defendant’s relationship to the first defendant, the plaintiff’s case was again found wanting. The first defendant’s counsel put to the witness a series of WhatsApp chat exchanges between the first defendant’s representative and the second defendant, which had been obtained during pre-trial discovery. These messages plainly showed that the first defendant engaged Mr. Noah ad hoc to drive the truck from South Africa to Zimbabwe as an independent service provider, even inquiring “how much do you charge” for the task. Mr. Tafirenyika conceded that it would be highly unusual for an employer to ask its own employee how much he would charge for performing an assigned driving job. The very need for such a question strongly suggests that Mr. Noah was not a regular employee of the first defendant, but rather a freelance driver contracted for that specific trip. Indeed, the chats indicated that Mr. Noah was engaged for a single delivery and was not on the first defendant’s payroll or staff establishment. Other than hearsay assertions, the plaintiff presented no documentary proof of an employment relationship, such as an employment contract, payslips, or testimony from Mr. Noah or someone from the first defendant admitting an employment arrangement. The police report made no mention of Mr. Noah being employed by the first defendant. In sum, no credible evidence was led to prove that the second defendant was a servant or agent of the first defendant in law.

After the single plaintiff’s witness had been heard and exhibits tendered, the plaintiff closed its case. At that juncture, counsel for the first defendant applied for absolution from the instance, essentially arguing that the plaintiff’s evidence, taken at its highest, was so deficient that no reasonable court could find for the plaintiff. The second defendant, for his part, had not led any evidence (indeed, the second defendant took no active part in the trial), and the focal point of the application was the claim against the first defendant. I proceed to analyse the law and the facts to determine whether the plaintiff established a prima facie case sufficient to avoid absolution.

Analysis of the Law and Facts

In an application for absolution from the instance at the close of the plaintiff’s case, the court is guided by a well-established test. The classic formulation, as set out in the venerable case of Gascoyne v Paul & Hunter 1917 TPD 170, is: “At the close of the case for the plaintiff, the question is: Is there evidence upon which a reasonable man might find for the plaintiff?”. In other words, the court must assess whether, if no further evidence were to be led, a reasonable court might (not necessarily would) be prepared to grant judgment in favour of the plaintiff. This standard was explicitly adopted into our jurisdiction by the Supreme Court in United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S), where Gubbay CJ succinctly restated that the key inquiry is whether the plaintiff has made out a prima facie case on which a court could find for it. The evidence need not be so strong as to justify a final judgment at that stage, but it must cover all the essential elements of the claim to the extent that, if uncontradicted, it would sustain a judgment in the plaintiff’s favour. If the plaintiff’s case lacks evidence on any one essential element, the result is an “evidential deficit” and the defendant should not be called on to answer.

The South African case of Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88 (SCA), frequently cited with approval by our courts, including in the recent Supreme Court decision of Chiswanda v OK Zimbabwe Ltd SC 84/20, illuminates the approach. The court must consider whether there is evidence upon which a reasonable court, applying its mind reasonably to that evidence, could or might (not should) find for the plaintiff. This emphasizes that the threshold is low – the plaintiff need not establish its case on a balance of probabilities at this interlocutory stage; it suffices if a prima facie case has been made out. However, the threshold, albeit low, is not negligible: there must be some evidence on each element of the claim, and the evidence must not be so hopelessly unreliable or discredited that no reasonable person could safely rely on it. Our courts have echoed that if the plaintiff’s case is so inherently lacking in proof that the court cannot envision a finding in the plaintiff’s favour, absolution should be granted. Put simply, a plaintiff cannot put nothing into the scales and expect to tip them in its favour.

It is also settled that at the absolution stage, the court does not make determinations of witness credibility or choose between conflicting evidence. The evidence must be taken at face value in the light most favourable to the plaintiff. In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A), Beadle CJ cautioned that if there is some evidence which might lead the court to a conclusion in favour of the plaintiff, the matter should ordinarily be allowed to proceed, especially where the facts are peculiarly within the knowledge of the defendant. The court should be sparing in granting absolution at the close of the plaintiff’s case, doing so only in the clearest of cases where a prima facie case has not been established at all. As a corollary of this principle, I have previously observed that “for absolution from the instance, the court does not weigh credibility in fine detail or prefer one side’s story over another. Instead, it asks whether there is sufficient evidence to call upon the defendant to answer.” (see Helen Judith Johnstone v Brian Murphy & Ors HH 238-25). I approach the present application with these principles in mind.

Application to the Facts

The plaintiff’s causes of action sound in delict (negligence) and possibly contract – but either way, the essential elements the plaintiff needed to establish at this stage included:

that the first or second defendant breached a legal duty or contractual obligation causing the accident (i.e., some fault or basis of liability),

that the first defendant is legally responsible for the second defendant’s actions (vicarious liability or agency), and

that the plaintiff suffered the damages claimed (in the amounts claimed) as a result.

After considering the evidence summarized above, I am satisfied that the plaintiff failed to make out a prima facie case on multiple essential elements:

(a) No proof of employment or agency relationship

The linchpin of the claim against the first defendant is the allegation that Mr. Noah (the second defendant) was acting as an employee or authorized agent of the first defendant when the accident occurred. On this point, the plaintiff led no direct evidence at all. Mr. Tafirenyika’s assertion of an employer-employee relationship was explicitly based on what he had been told by his own director, not on personal knowledge. That is classic hearsay. The law is well settled that hearsay evidence – defined as evidence whose probative value depends on the credibility of someone other than the witness giving it – is generally inadmissible, unless it falls within one of the exceptions provided by statute (see Civil Evidence Act [Chapter 8:01], s.27). In this case, no attempt was made to bring the hearsay within an exception; for example, the plaintiff did not seek to call Mr. Zwart (who was available locally) or to tender an affidavit from him under any hearsay exception. The hearsay nature of Mr. Tafirenyika’s testimony means that his bare contention about the employment relationship carries no weight in proving that fact.

Not only was the plaintiff’s positive evidence on this point deficient, but the objective evidence actually contradicted the alleged employment relationship. The WhatsApp correspondence shown to the witness indicates that the second defendant was engaged on a one-off basis for a specific task, with the first defendant negotiating a driving fee with him. This mode of engagement is inconsistent with a standing employment arrangement where a driver would simply be assigned in the normal course of his duties and paid a salary, not a one-time fee. Mr. Tafirenyika himself conceded that the communications were not typical of an employer-employee interaction. Tellingly, the plaintiff did not produce any other evidence suggestive of employment: no letter of engagement, no proof that the first defendant had control or supervision of Mr. Noah’s work beyond the single trip, and no indication that Mr. Noah was on the first defendant’s payroll. The first defendant’s plea, as well, denied that Mr. Noah was its employee and averred that he was an independent contractor for that delivery. Thus, on the evidence before the court at the close of the plaintiff’s case, there is simply no prima facie proof that the first defendant bears vicarious liability for the second defendant’s conduct. If the case were to proceed any further, no court could hold, on such evidence, that an employment or agency relationship existed. As our courts have stressed, a plaintiff must furnish some evidence on every element of the claim. Here the want of evidence on the critical relationship between the defendants is fatal.

(b) No proof of negligence or breach by the first defendant

Even apart from the employment issue, the plaintiff also failed to adduce evidence of any actionable negligence or breach of duty by the first defendant itself. The particulars of claim appear to rely entirely on imputing the driver’s negligence to the first defendant via vicarious liability. The plaintiff did not lead evidence of any independent negligence on the part of the first defendant in, say, assigning an incompetent driver or failing to maintain the truck (indeed the truck belonged to the plaintiff, not the first defendant). No evidence was led as to how the accident happened, whose fault it was, or what Mr. Noah did wrong. The police report (Exh P1) was not elaborated upon; notably, the plaintiff did not even tender the investigating officer’s testimony or an accident reconstruction to establish prima facie negligence on the part of the driver. In Chiswanda v OK Zimbabwe Ltd (SC 84/20), the Supreme Court reiterated that a plaintiff must establish a breach of duty (negligence) to avoid absolution in an accident case. In that matter, absolution was granted at trial because the plaintiff failed to show how or why an accident (a shelf collapse injuring a child) was caused by the defendant’s negligence. Likewise, in the present case, no evidence at all was led to explain how the collision occurred or to suggest that Mr. Noah drove negligently. It would not be permissible to simply assume negligence from the occurrence of the accident alone, without evidence. Thus, the plaintiff’s case also fails to establish, even at a prima facie level, the wrongful act or omission that is a prerequisite for liability in delict.

(c) Failure to prove damages and loss

Even if the plaintiff had cleared the hurdles of duty and breach, which it did not, the claim would stumble on the requirement to prove damages. It is trite that damages must not only be pleaded but proved. The plaintiff claims a definite sum of US$35,000 for the truck, so it was incumbent on it to lead evidence supporting that valuation. As noted, the only valuation-related evidence was a single quotation for $45,000 – an amount higher than what is claimed – with no explanation or factual basis given for the discrepancy. The plaintiff did not provide any evidence of the pre-accident market value of the truck or the post-accident salvage value (if any), which are the usual metrics for calculating loss in value. Our law requires a plaintiff claiming property damage to establish the quantum by evidence of values before and after the damage or the reasonable cost of repairs, whichever is lower. In Maduwa v Zhake & Anor, HH 372-16, for example, the High Court emphasized that both the pre-accident and post-accident values must be proved to support a claim for diminution in value. Here, the plaintiff gave neither. It simply plucked a round figure ($35,000) which, on the face of it, had no documented support in the record. This is a paradigmatic evidential gap. The court is left to speculate as to how that figure was arrived at, which is impermissible. A court cannot be asked to enter judgment for tens of thousands of dollars on the basis of unverified assertions.

The claim for loss of business income, US$22,000 per month, fares no better. To substantiate a claim of lost profits or revenues, a claimant must ordinarily provide a factual foundation, often in the form of financial records, contracts showing expected income, or at least a rational calculation grounded in past performance. In Dururu Transport (Pvt) Ltd v Mutamuko & Anor, HH 95-2011, the court made it clear that a claim for loss of use of a commercial vehicle should be supported by a “revenue analysis” with invoices, receipts or other documentary evidence of the income the vehicle was generating. The plaintiff here produced Exhibit P4, which was supposed to be such an analysis, but as examined above, that document was fundamentally flawed and uncorroborated. It did not even pertain to the correct truck and was unsupported by source data. No customer invoices for the purported freight jobs were produced, no ledger entries or bank deposits were shown, and no tax returns reflecting the alleged income (or its loss) were presented. In fact, the witness admitted that the company’s normal practice is to issue invoices and receive payments into the bank for each job – yet not a single invoice or bank statement was tabled for the court. This glaring omission must be interpreted against the plaintiff, given that such evidence ought to be readily available if the claimed income was real. The unavoidable inference is that the plaintiff either did not have US$22,000 per month in actual revenue from that truck, or it chose not to disclose the true figures. In either event, the court has been given no acceptable evidentiary basis to quantify any loss of income. Courts cannot award damages on conjecture or ex gratia; there must be proof. As was succinctly put in Sibanda v Mwonzora, HH 713-20, “he who alleges must prove” – a principle the plaintiff has failed to satisfy here.

(d) Admissibility and weight of evidence

It is important to note that much of the plaintiff’s case suffered not only from lack of evidence, but also from the inadmissibility or unreliability of what little evidence was presented. I have already discussed the hearsay nature of the critical parts of Mr. Tafirenyika’s testimony. The Civil Evidence Act [Chapter 8:01] does permit hearsay to be admitted under certain circumstances, but even when admitted, the court must treat it with caution and consider its weight in light of factors like whether the declarant is available to be cross-examined, the contemporaneity of the statement, and whether it makes sense in context. Here, the hearsay statements (e.g. that “Mr. Noah works for Matrix Fertilizers” or that “the truck was beyond economic repair”) were not corroborated by any other evidence and the persons who made those assertions (Mr. Zwart and the author of the damage report) were not brought to court. Such evidence carries negligible or no weight. In effect, once the inadmissible or untrustworthy parts are set aside, the plaintiff is left with virtually no evidence on the key issues of liability and quantum.

In the final analysis, even taking the evidence at its highest in the plaintiff’s favour, there is a profound evidentiary failure in this case. There is no credible evidence that the first defendant is liable at law since employment/agency was not proved, and no reliable evidence that the plaintiff suffered the specific financial losses claimed since the quantum of both the property damage and the business loss was not proved. The plaintiff needed to make out at least a prima facie case on these points to avoid absolution. It failed to do so. The present matter is precisely the type of case where absolution from the instance is appropriate. The plaintiff has not led evidence upon which a reasonable court might, even if the evidence were uncontradicted, find for the plaintiff. To borrow the phrase of Lord Denning in MacFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC), the plaintiff has attempted to put something on nothing and expects it to stand, but it will collapse under its own weight of nothingness. The law will not permit the case to proceed in the mere hope that the defence might somehow fill in the gaps of the plaintiff’s case. Doing so would be inimical to the fundamental rule that the burden of proof rests on the plaintiff from the outset.

Before concluding, I also take note of the argument that courts should be slow to grant absolution if the defendant is sheltering behind procedure to avoid giving evidence on matters particularly within its knowledge. That is a sound principle. In this case, however, the first defendant’s “knowledge” is not what is lacking; what is lacking is any case to answer in the first place. The plaintiff did not produce evidence on matters which were peculiarly within its own knowledge or ability to prove – such as how much money it was making from its trucking operations, or what arrangements it made (through its director) with the defendants. Those are not mysteries that only the defendant can clarify; they are the very basics of the plaintiff’s claim, and the plaintiff is the one who needed to place that material before the court. It did not do so. This is not a matter of a defendant ambushing a plaintiff by withholding evidence; it is a matter of a plaintiff failing to put forward the evidence that was required to begin with. In such circumstances, the court has no warrant to speculate or to compel a defendant to testify just to cure a plaintiff’s evidentiary omissions.

Disposition

In the result, the first defendant’s application for absolution from the instance is granted. The plaintiff has not established a prima facie case against the first defendant, and accordingly the claim against the first defendant is absolved at this stage. The plaintiff’s evidence was so inadequate on the issue of damages that, even aside from the question of the employment relationship, the claim would fail in any event – thus the issue of the second defendant’s employment status becomes moot. Put differently, the plaintiff has failed to prove any recoverable loss for which any defendant could be held liable on the evidence led. In the premises, the claim against the first defendant is dismissed due to want of evidence. The plaintiff must bear the costs of the first defendant’s suit, as a party that drags another to trial without sufficient evidence must face the consequences.

In the result;

Absolution from the instance is granted in favour of the first defendant, with costs.

Mambara J: …………………………………………………..

Farai Nyamayaro Law Chambers, plaintiff’s legal practitioners

AB & David, defendant’s legal practitioners