Ubuntu Bethu Mining (Pvt) LTD V a B J Engineering (Pvt) LTD

### Preamble
1
HB 122/19
HC 2478/17
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UBUNTU BETHU MINING (PVT) LTD

Versus

A B J ENGINEERING (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 18 & 20 JUNE & 29 JULY 2019

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

Professor W. Ncube & L. Ngwenya for the plaintiff

Advocate P. Dube for the defendant

MABHIKWA J:	In this matter, plaintiff issued summons on 15 September 2017 where it claimed:

The refund of the US$21 700 being the balance of the purchase price for a stamp mill which the parties agreed that defendant would refund to the plaintiff following the parties’ agreement to cancel the contract of sale.  Plaintiff had allegedly bought a stamp mill from the defendant.

Costs of suit.

In its plea, defendant admitted that the parties entered into an agreement of sale, save to say that such agreement was oral.  Defendant also admitted that plaintiff paid $26 700 towards the purchase price.

However, defendant denied that there was an agreement to cancel the sale or that plaintiff would be refunded the US$26 700,00 paid towards the purchase price.  Defendant denied paying the total sum of US$5 000 as a refund of a part payment of the $26 700.  In the contrary, defendant averred that the $5 000 was an ex-gratia payment by defendant towards the death bed, and funeral expenses of a relative of one of plaintiff’s directors.

At the commencement of trial, it was agreed as common cause that there was an agreement of sale in terms of which plaintiff purchased a stamp mill from the defendant company.  Secondly, it was also common cause that plaintiff paid US$26 700,00 towards the purchase price.  Thirdly, it was common cause also that at some stage, defendant paid $5 000,00 to plaintiff although the parties do not agree on the reason for the said payment.  It was also agreed that the issues to be determined by the court were:

Whether the parties agreed that the agreement of sale be cancelled.

Whether or not it was a term of such cancellation agreement that defendant would sell the stamp mill to someone else, and from the proceeds thereof, refund the deposit paid, and

Alternatively, whether or not the defendant has been unjustly enriched at the plaintiff’s expense to the extent of US$21 700,00 being the unrefunded part of the deposit of US$26 700 paid.

Plaintiff led evidence from Sebastian Ncube who also represented the plaintiff company as its director.  In short his evidence was that in early 2013, he and his colleague, one day got to the defendant company and liked the mining machinery and equipment they saw there.  They spoke to one Ephraim, who took them through a range of company products.  Ultimately they decided to buy a stamp mill.  They agreed with Ephraim to pay in instalments as and when plaintiff got substantial amounts to pay.

The total purchase price for the mill was US$43 700.  Mr Sebastian Ncube’s evidence was that he made a number of instalments totaling US$26 700,00.  In short, and from his evidence, there developed challenges at the defendant company in respect of the stamp mill.  After some time, there were challenges also at the plaintiff company.  This ruling will not get into the minute details of the challenges faced by both companies.

It appears then that the said challenges largely led to, according to Mr Ncube representing the plaintiff company, a cancellation agreement in terms of which the plaintiff would be refunded the US$26 700,00 deposit paid towards the purchase price.

Right up to that stage, Mr Ncube told the court that he dealt with the defendant company’s staff particularly Ephraim and what he believed was the accountant or accounting department of the that company.

According to Ncube, after the cancellation agreement, plaintiff was refunded $5 000,00 being part of the US$26 700,00 refund.  In fact, one document, with a payment of $3 000,00 from defendant apparently describes  the payment as a “refund”. (see exhibit 1e).

It was apparent from the evidence, and when asked by the court, Ncube stated that Mr Michael Querl only got involved much later in the matter.  It is clear also from the correspondence between the parties filed as exhibits that Mr Querl got involved much later as he sought, in my view to “correct” what Ephraim and others had done. At that stage, Ephraim disappears from the scene and Querl also takes over the dispute over the “refund”.

Ncube was subjected to intense cross-examination and remained adamant that there was an agreement of sale, which was later on cancelled by agreement of both parties, and that in fact ABJ Engineering went on to make two (2) payments towards the refund as agreed.  The total of $21 700,00 according to Ncube remains outstanding.  It is worth noting and mentioning that even from the cross-examination, it is clear that Mr Querl gets involved much later in the failed transaction.

After Mr Ncube’s testimony, the plaintiff closed its case.  The defendant then made a written application for absolution from the instance which was vigorously opposed by the plaintiff.

The Law

Both parties sufficiently covered and laid down the law relating to an application for absolution from the instance at the closure of the plaintiff’s case, citing relevant and incisive case authorities.  The court will not go overdrive repeating the authorities referred to in all the submissions by both counsel.

Suffices to add that in Munhuwa vs Mhukahuru Bus Services (Pvt) Ltd 1994 (2) ZLR 382 (H) CHATIKOBO J, pointed out that:

“It is axiomatic that an application for absolution from the instance stands much on the same footing as an 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 facts 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.”

In casu, the court finds that although defendant refers to the alternative claim of unjust enrichment in its submissions, it is true that throughout the plaintiff’s case, that claim was not contested, and therefore may be taken as admitted.  Defendant cannot therefore seek absolution from the instance in those circumstances.

Further, there were contentious issues (facts) in plaintiff’s case, especially in cross-examination, which can only be determined by the court after hearing both sides.  Chief among such contentious facts are the meaning and interpretation of exhibits 1(e), 3(b) and 4(b).  There is need also for the court to hear from the defendant’s side what transpired at the early stages of the transaction before Querl’s involvement.  The plaintiff at this stage is not being called upon to prove its case against the defendant or prove liability.  It is merely being called upon to show prima facie, that it has a valid claim against the defendant.

It is only in the most exceptional cases where the credibility of a witness or the plaintiff’s case is so patently and utterly destroyed that no part of his/its material evidence can possibly be believed that the court will grant absolution.

Ultimately in my view, it boils down to this, is this the kind of case wherein if placed on its defence, the defendant company can simply close is case without leading evidence and yet still get judgment in its favour at the end of the trial.  This appears to me to have been the reasoning in a number of case authorities relating to an application for absolution from the instance.

I am convinced that this is not a proper case for the granting of absolution from the instance.  The scrutiny of the plaintiff’s evidence in microscopic detail, as has been thoroughly done in this application, unfortunately does not translate to absolution, though proper at the close of the trial as closing submissions.

Accordingly, the application is dismissed and the defendant is put to its defence.

Mathonsi Ncube Law Chambers, plaintiff’s legal practitioners

Longhurst, Bruce & Company, defendant’s legal practitioners