Kennedy Chibva v Masakhane Traders Association & 3 Ors

### Preamble
1
HB 263/20
HC 2540/18
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KENNEDY CHIBVA

Versus

MASAKHANE TRADERS ASSOCIATION

And

BENSON MUBURE

And

JAQUELINE MATSIKA

And

SIPHOKUHLE SIBANDA

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 26, 27; 29 OCTOBER &; 6, 19 NOVEMBER 2020

Absolution from the instance

Plaintiff in person

N. Mangena, for the defendants

DUBE-BANDA J:	This is an application by the defendants for absolution from the instance at the close of the plaintiff’s case. The plaintiff’s claim which was instituted by way of summons is for payment of a sum of US$150 000, being damages for malicious allegations against the plaintiff, resulting in pain, inconvenience, injury to reputation, self-esteem and serious depression; US$10 000 being loss of income as a result of unlawful closure of plaintiff’s business stand from 6 October 2015 to 22 October 2015; US$12 460 being loss of income as a result of the unlawful closure of plaintiff’s business stands for the whole of January 2016; US$560.00 being for two shares of his groceries which were not allocated to him; US$840 being sitting allowances of committee members and general meetings done in the association from 2015 to 2018; payment of the sum of US$500 being the money paid for insurance and hospitalization of every member which was not allocated to him by the defendant; interest at the prescribed rate from the date of issue of summons to date of final settlement; with costs of suit on a legal practitioner and client scale.

The plaintiff presented oral evidence and called two witnesses, Zazinhle Tshuma and Teresia Sibanda.

In his testimony, plaintiff testified that he is a shareholder of 1st defendant, Masakhane Traders Association (Association). He was elected to the management committee of the Association. He became the Treasury of the Association. The 2nd, 3rd and 4th defendants were also elected to the management committee of the Association. 2nd, 3rd and 4thdefendants alleged that he had stolen money from the Association. According to the plaintiff, the audits carried out, first internally, and second by PNA Chartered Accountants, were not authorized by the Association. It was at the instance of the 2nd, 3rd and 4th defendants who were on a frolic of their own. He says the external audit was not carried out properly, in that he was not given an opportunity to place his version before the auditors. It was calculated to conclude that he had stolen funds. He alleges that he was forced to sign an admission of theft of the funds. He was told that if he refused to sign, the police would arrest him for theft. Notwithstanding the admission he was reported to the police, prosecuted and acquitted of the crime of theft. Again, the report to the police was not authorized by the members of the Association. According to the plaintiff the report to the police was caused by the hatred, the 2nd, 3rd and 4th defendants harbored towards him because they were jealous that he was the Treasury of the Association. He was forced to resign from the management committee of the Association.

Plaintiff told the court that the 2nd; 3rd and 4th defendants wanted to see him suffer. He avers that 4th defendant caused the publication of a newspaper story with the title ‘Flea market boss steals $9000.00.’He is a church member, and people were asking why he stole the money. He was embarrassed by the publication of the newspaper article.

Plaintiff presented the oral evidence of the Zazinhle Tshuma. He attends the same church with plaintiff. He knows plaintiff as a trusted member of the congregation. Plaintiff was a Church Elder, when his term as Elder came to an end, he (plaintiff) became the church Treasurer. When the church members saw the newspaper story speaking to the allegations of theft, the church asked plaintiff to resign from his position as Treasurer. He alleged that church members shunned him and considered him an untrustworthy person.

The last witness for the plaintiff was Teresia Sibanda. According to this witness, she was the last elected chairperson of the management committee of the Association. She neither authorized the internal nor the external audit of the Association books of accounts. The Association was not notified about the audits. She did not authorize the making of the police report which resulted in the arrest of the plaintiff. 2nd, 3rd and 4th respondents were just doing their own things, i.e. on a frolic of their own. She was locked out of the office of chairperson. She told the court that the 3rd defendant, without an election, has assumed the office of chairperson of the Association.

The law

It is a principle of our law that where a plaintiff in a civil trial has failed to establish a prima facie case at the close of his case, the defendant may apply for absolution from the instance.  Such an application is akin to an application for a discharge at the close of the state case in a criminal trial.  The test for an application for absolution from the instance is well settled in this jurisdiction and has been discussed in a number of authorities.

The law relating to absolution from the instance is settled in this jurisdiction. The locus classicus on absolution from the instance is the case of Gascoyne v Paul & Hunter 1971 TPD 170 where, at p 173 the following is stated:

At the close of the plaintiff’s case, therefore, the question which arises for consideration of the court is, is there evidence upon which a reasonable man might find for the plaintiff? And if the defendant does not call any evidence, but closes his case immediately, the question for the court would be, is there such evidence upon which the court ought to give judgment in favour of the plaintiff.

The above test, which has stood the test of time, has been consistently restated and applied in this jurisdiction. In another leading statement on the applicable principles, the court in Supreme Service Station (Pvt) Ltd (1969) v Ford Gooldridge (Pvt) Ltd 1971 (1) RLR 1 (A) at p.5D, Beadle CJ said:

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 saying that it is the sort of mistake a reasonable court might make….

The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff. Put differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. See Edmond Totri and George Patrinos v Phathisani Nkomo HB 222/20.

The above test enjoins the court to consider whether on the evidence led on behalf of the plaintiff, the court could or might (not should or ought to) find for the plaintiff. A plaintiff, as illustrated by the authorities from this jurisdiction, will successfully withstand such an application if, at the close of its case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might find for it. See Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S) at 94 C, Supreme Service Station (supra) at 4C-D, United Air Carriers (Pvt) Ltd v Jaruan 1994 (2) ZLR 341 (S) at 343 B – C.

If at the close of the plaintiff’s case there is no evidence to support the plaintiff’s claim, or there is insufficient evidence upon which a court, acting reasonable, might find for the plaintiff then the defendant must be absolved from the instance. See Principles of Evidence (2000) by Shwikkard and Van de Mewrwe p 543. The test was clearly set out in Claude Neon Lights v Daniel 1974 (4) SA 403 (A) where the court held that;

“When absolution from the instance is sought at the close of plaintiff case, the test to be 	applied is not whether the evidence led by the plaintiff established what would finally be 	required to be established, but whether there is evidence upon which a court applying its mind 	reasonably to such evidence, could or might find for the plaintiff (409 G-H)”

In Gordon Lloyd Page & Associates v Revira 2001 (1) SA 88 (SCA), the court held that the test requires the court to establish whether there is evidence relating to all the elements of the claim. In Supreme Service Station Pty Ltd v Fox and Goodridge Pty Ltd 1971 (4) SA 90 (RA), the court said the purpose of an application for absolution is to realise justice for a defendant where no prima facie case has been established for the plaintiff. However, the court noted that there was nothing amiss for a court refusing absolution after close of the plaintiff’s case and granting it at the end. The order should be granted when the plaintiff’s claim is hopeless at the close of the plaintiff’s case. See also De Klerke v Absa Bank Ltd and Ors 2003 (4) SA 315 (SCA), Madombwe v Rumbi HH 354/15.

The court should be extremely chary of granting absolution at the close of the plaintiff’s case. The court must assume that in the absence of very special considerations, such as inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject plaintiff’s evidence. Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim. See Edmond Totri and George Patrinos v Phathisani Nkomo HB 222/20.

The issue at this stage of the proceedings, is not whether plaintiff has proved his case, but whether there is evidence on record that supports his claim. Again, it is not about the contents of the synopsis of evidence, it is about whether there is evidence, adduced in the trial that supports the claim. In determining whether to grant or refuse absolution, the court is enjoined to consider the evidence and the evidence alone. The evidence constitutes, e.g. oral evidence, documentary exhibits and real exhibits, if any.

The claim for malicious allegations

Plaintiff claims damages for malicious allegations. This is the claim made in the summons. Mr Mangena, for the defendants argued that there is no recognizable claim at law known as claim for malicious allegations. I agree. In our law there is no delict answering to the name of malicious allegations. An allegation is defined as a claim or assertion that someone has done something illegal or wrong, typically one made without proof. The term ‘malicious’ implies that an allegation, either wholly or in part, has been made with a deliberate intent to deceive or cause harm to the person subject to the allegation. It is not an actionable delict in our law. It is different from malicious prosecution which entails the malicious institution and conducting of legal proceedings against someone in respect of a criminal charge. Malicious allegations cannot be stretched to mean the malicious institution of legal proceedings. This court cannot substitute malicious allegations and replace it with malicious prosecution. Plaintiff argued that malicious allegations is the same as malicious prosecution, it is not. The requirements for a delict of malicious prosecution are clearly set out in case law, these are that the plaintiff must prove that the prosecution was (1) initiated by the defendant; (2) terminated in his/her favour; (3) undertaken without reasonable and probable cause and (4) motivated by malice or improper motive or carried out with a primary purpose other than that of carrying the law into effect, to injure the claimant. Malicious allegations have nothing to do with prosecution, which is the key word, in a claim for malicious prosecution.

Defendants cannot be put to their defense, to defend themselves against a claim that is not an actionable delict in our law.  Even if plaintiff led evidence before court that the allegations were malicious, still this court cannot, applying its mind reasonably to such evidence, make a reasonable mistake and find for the plaintiff. This is so because such a delict does not exist. This court cannot start to consider the requirements of malicious prosecution, because it is not what the plaintiff anchored his claim on. It is settled law in this jurisdiction that a court is strictly bound by the issues pleaded by the parties. Going outside those issues and determining issues not pleaded by the parties constitutes a fatal procedural irregularity. See Chiwenga v Mubaiwa SC 86/20. This is neither splitting hairs nor placing form over substance, this is merely applying the law of the land.

On the facts of the present case, the evidence of the plaintiff was at variance with his pleaded case. There has been no amendment to the summons. A case stands or falls on its summons. This claim was referred to trial and the issues crystalized as follows: whether or not defendants made malicious allegations against the plaintiff; if so, whether or not plaintiff suffered any damage, and if so; whether or not defendants are liable for such damage; and the quantum of such damage.   Again, in his synopsis of evidence filed in preparation of the pretrial conference, plaintiff causes more confusion to his claim, he avers that:

Plaintiff believes that an amount for general damages for him caused by the defendants on reputation, dignity, self-esteem and psychological makeup of the plaintiff in the sum of $150 000 will meet the justice of this case. Plaintiff breaks the quantification as follows: malicious allegations $50 000; pain and suffering $50 000; psychological trauma $10 000; defamation   $20 000; serious inconvenience $20 000; total damages $ 150 000.

In his oral testimony before court, plaintiff was directing his evidence to speak to pain and suffering; psychological trauma; defamation and serious inconvenience. He testified at length about the newspaper story which said Flea market boss ‘steals’ $9 000.00, to show that he was defamed. I take the view that this claim should not have passed at the pre-trial stage. See Doelcam (Pvt) Ltd v Pichanick and Others 1991 (1) ZLR 390 (H). It should not have been referred to trial, on the simple basis that a claim of malicious allegations is not known in our law of delict. With such pleadings and evidence, this court could or might not find for the plaintiff, put differently, this court could not make a reasonable mistake and find for the plaintiff.

Claim for loss of income from 6 to 22 October 2015 and January 2016

These claims seem to emanate from the allegations that defendants illegally locked plaintiff’s vending stalls, i.e. from 6 to 22 October 2015, and January 2016.  The issue whether the vending stalls were illegally locked cannot be resolved at this stage of the proceedings. At this stage, the inquiry is whether there is evidence to support the claim for damages.

According to plaintiff, the defendants wanted to see him suffer. They locked his vending stalls, until, in the first instance the magistrates’ court ordered that the stalls be re-opened. In the second instance, the vending stalls were locked again, until he took it upon himself to re-open them by breaking the keys put by the 2nd, 3rd and 4th defendants. During the time the stalls were closed, he could not work.

Plaintiff argues that the closure of the stalls led to a serious loss of income. In his written submission he contends that:

The plaintiff will leave the issue of proper calculation of quantum to the court’s direction. What is important is that plaintiff has established that he suffered loss of business as a result of the defendants.

Witness Teresia Sibanda testifies that plaintiff sells clothes at his vending stalls. She did not authorize the locking of the stalls. Plaintiff lost income as a result of the closure of his stalls. She did not tell the court the amount lost by the plaintiff.

It is not for this court to calculate the quantum of damages. It is for the litigant to adduce evidence to support his claim. There is no aorta of evidence to support this claim. Plaintiff did not present evidence concerning the amount of income his business generates on a daily, weekly or monthly basis. No bank statements to show his income generated from his sales. No evidence of what he was selling. No evidence to show the amount he could have made from sales in seventeen days, for the October claim, and for a period of one month for the January claim. In his oral evidence, he did not tell the court how much he could have made in the period from 6 October to 22 October 2015, and January 2016. He could have simply produced his receipts books for the equivalent periods, he could have produced his Zimbabwe Revenue Authority tax returns for an equivalent period, or some evidence to show the amount he generates in equivalent periods. The amounts of US$10 000 and US$12 460, were just plugged from the air as it were, it has no foundation or basis in evidence. Obviously, if he makes such kind of money, he must be paying tax and having his tax returns, why not produce them? These claims cannot be related to any evidence before court. On these claims there is no evidence before court upon which a court might find for the plaintiff.

Claim for two shares of groceries

Plaintiff claims US$560.00 being for two shares of his groceries which were not allocated to him i.e. US$70.00 per year from 2015 to present 2018. Plaintiff argues that it is common knowledge in the Association that every member was entitled to get groceries at the end of the year. It might well be common knowledge to the plaintiff and the members of the Association, but it is not common knowledge to this court. This court decides matters on the basis of evidence, not common knowledge. Plaintiff did not lead evidence on these claims. There is simply no evidence on this claim upon which this court could or might find for the plaintiff.

Claim for sitting allowance

Plaintiff claims US$840 being sitting allowances for committee members and general meetings done in the association from 2015 to 2018. He argues that it was agreed that every committee member is entitled to sitting allowance for every meeting and general meetings held in the Association. Witness Teresia Sibanda, told the court that as chairperson, she was paid all her allowances by the Association. She was paid in cash. She would sign for such payment.

There is no evidence of the number of meetings held between 2015 and 2018. There is no evidence of the allowance he could have been paid per meeting. There is no evidence of the amount of allowances other committee members were paid. Plaintiff presented no evidence to support this claim. He did not produce his tax returns to show the amount of allowances he was being paid before the payments were stopped.  There is no evidence upon which this court might make a reasonable mistake and find for the plaintiff on this claim.

Claim for insurance

Plaintiff claims payment of the sum of US$500 being the money paid for insurance and hospitalization of every member which were not allocated to him by the defendant. He contends that it was agreed that the Association will pay for the death and hospital insurance for every member. He argues that as a member he is entitled to that payment. There is no evidence to support the amount claimed. There is no evidence of the amount that should have been paid on his behalf for death and hospital insurance. There is no evidence to show separately the breakdown of the amounts that should have been paid for the insurances. There is no aorta of evidence on which this court could or might find for the plaintiff on this claim.

Conclusion

What could not escape the immediate observation of this court is that there are two factions battling for the control of the Association. One faction is fronted by the 2nd; 3rd and 4th defendant, while the other is fronted by the plaintiff and Teresia Sibanda.

Plaintiff is without legal representation. He argued that this application for absolution must be dismissed with costs as it has been made to harass him as a self-actor with technicalities.  It is quite apparent from the nature of the documents filed in these proceedings that the plaintiff is being assisted by some bush lawyer with very limited knowledge of the law and the procedures of this court. See Fuyana v Moyo SC 54/06.Be that as it may, he must meet the same standard met by litigants with legal representation. There cannot be law for litigants without legal representation and law for litigants with legal representation. This is what it is.

In Claude Neon Lights (SA) v Daniel 1976 (4) SA 405, the court held that when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might not (should or ought to) find for the plaintiff. In the circumstances, I have no difficulty in concluding that the evidence led at the close of the plaintiff’s case falls far short of what is expected to establish a prime facie case.  There is no evidence on which the court could or might find for the plaintiff on all the claims.

Consequently, the application for absolution must succeed. There are no special reasons warranting a departure from the general rule that costs should follow the result. Defendants are therefore entitled to their costs of suit.

Disposition

In the final result, the defendants’ application for absolution from the instance is hereby granted with costs.

Coghlan and Welsh, defendants’ legal practitioners