G & G Preserves v Themba Sibanda t/a Bit Resources PBC Quarry Mine

### Preamble
1
HB129/19
HC1430/17
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G & G PRESERVES

Versus

THEMBA SIBANDA t/a BIT RESOURCES PBC QUARRY MINE

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 27 MARCH and 20 MAY 2019

Civil Trial – Ruling on the application for absolution from the instance

Advocate I. Phulu, for the plaintiff

T. Tavengwa, for the defendant

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

The plaintiff in short seeks an order that defendants vacate the remaining extent of Lot `B` Lower Rangemore, Umguza  being the property of the plaintiff who is the registered owner of the of the property (rei vindication).

The defendants have claimed that they have authority to occupy the property for mining purposes although they do not deny plaintiff’s ownership of the land.

At the close of the plaintiff`s case the defendants made an application for absolution from the instance.

The Law

In Munhuwa vs Mhukahuru Bus Services (Pvt) Ltd -1994(2) ZLR 382(H) per CHATIKOBO J it was pointed out that:

“It is axiomatic that an application for absolution from instance stands much on the same footing as an application for application for the discharge of an accused at the end of the state case in a criminal trial.”

The court went further to quote with approval BEADLE CJ (as he then was)in Supreme Service Station (1969) (Pvt) Ltd  vs Fox and Goodridge (Pvt) Ltd -1971(1) ZLR (1) A

“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 a 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.”

It should be remembered that in criminal cases, the standard of proof to found conviction is beyond reasonable doubt and once there is a prima facie case (which is establishment of a case on a balance of probabilities), the accused would not be entitled to a discharge at the close of state case.

In civil matters, the ultimate standard of proof to found liability, or in this case the relief sought of ejectment, is itself on a balance of probabilities. It follows that the standard of proof therefore at the end of the plaintiff’s case is even lower.

It has often been said that even in criminal matters, cases of discharge at the close of the state should be very rare, only where the court finds that the evidence led by the state is completely worthless and devoid of any probative value that it is not worth any answer by the accused, should the relief be granted. It must be for an even stronger reason- (a fortiori) in a civil case.

The case of Bailey (NO) vs Trinity Engineering (Pvt) Ltd and Ors -2002 (2) ZLR.484 (H). Also lays down the principles under which a court may or may not grant absolution.

“The plaintiff, who was the liquidator of a merchant bank, issued summons against defendants, claiming monies plus interest owed as a result of the bank having advanced money to the first defendant.  In their plea, the defendants, admitted that the bank had advanced the money, but   claimed that the interest charged breached the in duplum rule and that the money had been repaid.  After the plaintiff’s main witness had given evidence, the plaintiff reduced the amount of its claim.  At the close of the plaintiff’s case, the defendants applied for absolution from the instance, alleging that the plaintiff’s evidence was unreliable because, among other things, some of the documents produced were copies, not originals.”

It was held that, in an application for absolution from the instance, the test to be applied is whether there is evidence upon which a reasonable court might find or the plaintiff .If so, and particularly if the defence is something peculiarly within the knowledge of the defendant, the plaintiff should not likely be deprived of his remedy without first hearing what the defendant has to say in his defence. A defendant who might be afraid to go into the box must not be permitted to shelter behind the procedure of absolution from the instance.

Courts have been urged, unless in very clear cases which are rare anyway, to lean in favour of the case continuing to its logical conclusion with both sides having given their versions.As already stated above, the case in casu is one for rei vindicatio. That being the case, all that plaintiff needs to prove is that it is the registered owner of the property in question and that the defendants are in possession or occupation of that property and were so in possession before the action was instituted.

Mr Dumisani Sibanda foir the plaintiff company in simpler terms testified that he, his wife and children as a family own the plaintiff company.  He produced the Deed of Transfer in respect of the property to prove ownership.  He also produced the certificate of incorporation showing the articles of  association and the CR 14 form showing the list of the company directors.

He said he noticed at one time that there was some machinery, some of it very heavy machinery at the plaintiff’s premises.  He did not know the owners of the machinery.  The owners, whoever they were, had not consulted or engaged the plaintiff in any way before installing their machinery on the said premises.  There was no dispute and there still is no dispute that the plaintiff company owns the premises.

Further, Mr Sibanda indicated that his company has a massive housing scheme that was approved on 13 December 2017 that they are set to carry out on the same premises.  He later learnt that the defendants owned the machinery and invited them to the G and G Preserve (Pvt) Ltd offices.  He met 3 people who all introduced themselves as “Sibandas” and were possibly brothers.  On asking them they told him that they had been given permission by the Umguza Rural District Council and Environmental Management Authority to extract quarry from the premises.

Having advised them that the premises were owned by the plaintiff company, they initially looked surprised and apologetic but later on they seemed content to argue that they had documents entitling them to carry on with their presence and business at the premises.  Mr Sibanda in fact also stated that closely checking the documents the defendants had, it appears they were not mining at the place directed by the Rural District Council and that some of the documents were possibly not authentic.

Be that as it may and whatever the case may have been with the Rural District Council, Environmental Management Authority, the Ministry of Mines, etc, the important part was that the plaintiff owned the property and had not been contacted at all about the occupation by the defendant and had not consented to it.

He said according to the special permit relied upon by the defendants, the physical addresses of the development project was given as “Dustale Farm, Umguza, Matabeleland North”.  He said Dustale Farm, though also under Umguza Rural District Council, is in fact a farm that is in the Lower Rangemore area further away from the plaintiff’s farm.  When the plaintiff’s management confronted Umguza Rural District Council over the issue, the Rural District Council said the defendants had been granted permission to prospect at Dustale Farm not at the plaintiff’s farm.

He reiterated that plaintiff wants the defendants evicted from their farm.

The onus is therefore on the defendant to rebut that assertion more so where it does not deny both the plaintiff`s ownership and its possession or occupation of the property at the relevant time. Defendant is unlikely to make that rebuttal at the close of the plaintiff`s case.

Cases on rei vindicatio

Hannex Investments (Pvt) Ltd vs King ZLR (2) 334

John Sisk & Son (Zimbabwe) (Pvt) Ltd vs Alten Enterprises (Pvt) Ltd & Anor (HC 1884/10) [2011] [ZWHHC 83]

Spencer & Anor vs Minister of Lands & Ors 2010 (1) ZLR 144 (HB-11-10)

In their application for absolution, defendants have premised the application on two (2) points or issues;

Defendant does not dispute that plaintiff owns the property.

The ownership of the property

b) 	Possession of the property.

On this second issue, the defendants put the plaintiff to strict proof of the fact that their occupation or possession of the property was unlawful.  This is a question of evidence of which therefore, the court should hold first that the evidence is worthless and completely devoid of any probative value in order to grant absolution

Differently put, is this the kind of case wherein even placed on its defence, the defendant may well close its case without leading any evidence and yet still get judgment in its favour? Is this the kind of case where the court should simply take the assertions by counsel in cross-examination and grant absolution from the instance without hearing the explanations of the defendants –does that not leave the evidence of the plaintiff uncontroverted?  Would the defendants under those circumstances have sufficiently rebutted the plaintiff`s rights and assertions in view of the rei vindicatio principle?  In light of the plaintiff’s undisputed ownership of the property in question and also in light of Mr Dumisani Sibanda’s, testimony, it cannot be enough for the defendant to simply file documents which they interpret to mean that they have permission to occupy and mine quarry in the farm, and then apply for absolution on that basis.

It is the court’s finding that this is not a proper case for the granting of the relief sought in the form of absolution from the instance.

Accordingly, absolution from the instance at the close of the plaintiff`s case is denied. Defendant is put on its defence.

Vundhla-Phulu & Partners applicant’s legal practitioners

Mutuso,Taruvinga & Mhiribidi Attorneys , respondent’s legal practitioners