Ethical Leaf Tobacco (Pvt) Ltd v Sam Jabulani Chisoro t/a Simbamukaka Farm

### Preamble
1
HH 617-25
HCHC 122/23
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ETHICAL LEAF TOBACCO (PVT) LTD

Versus

SAM JABULANI CHISORO t/a

Simbamukaka Farm

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

CHILIMBE J

HARARE 18 March & 3 October 2025

Application for absolution from the instance

I. Nderere for the plaintiff

G.R.J. Sithole for the defendant

CHILIMBE J

BACKGROUND

[1] Plaintiff (“ELT”) structured a credit facility against the fruits of, rather than the land itself. Defendant (“Mr Chisoro”) the debtor/borrower under that facility, is a tobacco farmer from Darwendale, Zvimba District, in the Mashonaland West Province of Zimbabwe.

[2] The credit tobacco financing arrangement (commonly known as “contract farming”) was concluded in 2021.I will detail its terms hereunder. Meanwhile -I set out the dispute between the parties which arose over the performance of the contract leading to the present suit.

[3] ELT thus claims a sum of US$43,056.04 and interest at the rate of 70% per annum with effect from 1 November 2022 up to date of payment in full. The suit was defended with Mr Chisoro contending, among other factors, that he settled all obligations arising under the financing contract.

[4] The matter progressed to trial. ELT led evidence from 2 witnesses and closed its case. Mr. Sithole, (for Mr Chisoro), applied for absolution from the instance. Before turning to the arguments, I will dwell briefly on the main claim, its issues as well as the evidence led up to the closure of the plaintiff` case.

THE CLAIM IN DETAIL

[5] In its declaration, ELT averred that it concluded a financing arrangement with Mr Chisoro whose terms were recorded in the Tobacco Farming Contract. In essence, ELT financed- in cash as well as materials such as seed, diesel, fertilisers, and chemicals-the inputs necessary to support Mr Chisoro`s 2021 tobacco season. According to the claim, the total value advanced “inclusive of interest” was US$64,138,93.

[6] It was a material term of the agreement, according to the declaration, that Mr Chisoro would repay the sums and value advanced from the proceeds of sale of tobacco at the end of the 2022 tobacco farming season. ELT alleged default on the part of Mr. Chisoro who allegedly on repaid US$21 082,89.

[7] In paragraph 11 of the said declaration, ELT stated that “On 18 January 2022 the defendant acknowledged the debt when the sum due was US$55 248,78.”  Based on these averments, ELT prayed for an order directing Mr. Chisoro to pay the amount stated earlier of US$43,056.04 and at an interest of 70% per annum.

[8] Mr Chisoro`s defence on the other hand, was multi-pronged. Firstly, he disputed having executed the Tobacco Farming Contract although he admitted that the parties indeed concluded a financing agreement. Secondly, he denied the value of the inputs delivered under the arrangement although he conceded having received part of the consignment. Thirdly. Mr Chisoro strongly disputed the averment that he delivered tobacco valued at only at US$21,082,89 to ELT`s credit.

[9] With similar vehemence, Mr Chisoro insisted that there was either a mishap or malfeasance on the part of Ethical Leaf resulting in under-weight-poor-quality tobacco from other producers being attributed to his consignment. Fifthly, Mr Chisoro`s position was that the value of tobacco which he delivered to ELT`s account extinguished any obligation he had toward the financier.

[10] Finally, Mr Chisoro condemned the interest rate of 70% per annum claimed by ELT on the capital as outrageously high since the “normal interest rates for contract farming ranged between 9% to 12% per annum.

THE ISSUES FOR TRIAL

[11] With the replication taking the factual contentions no further, the matter was referred to trial on the following issues; -

Whether the defendant was advanced the sum of US$49,139,01 as inputs and labour costs.

Whether the plaintiff recovered the sum of US$21,082,89 from the defendant for 201 to 2022 season.

Whether the defendant delivered to the plaintiff was sufficient to discharge indebtedness to the plaintiff.

The sum owed by the defendant

[12] Much will turn on these issues which- I must confess, represented a faithful rendition of the parties` controversy as defined in the pleadings filed of record.

THE EVIDENCE LED

[13] ELT led evidence from 2 witnesses; -Mr Shingirai Tanyanyiwa, the Financial Accountant, and Mr Christopher Matimba Dewe, its former Field Officer. Mr Tanyanyiwa`s evidence basically tracked ELT`s contentions in the summons and declaration. He testified that as Financial Accountant, he had oversight of ELT`s financial affairs.

[14] The witness outlined the contractual relationship between the parties, their respective obligations, performance as well as applicable terms and conditions. ELT structured, according to Mr Tanyanyiwa, a credit facility for Mr Chisoro`s 2021 season under a contract titled “Tobacco Growing Contract” executed on 6 July 2021. ELT`s obligation was the delivery to Mr Chisoro, farming inputs, including fuel and cash. Mr Chisoro was supposed to repay, on his part, the value advanced from his tobacco crop sale proceeds.

[15] In addition to credit extended under the main Tobacco Growing Contract, it was Mr Tanyanyiwa`s uncontested evidence that Mr Chisoro approached ELT with requests for further funding. Two letters dated 6 August 2021 and 18 January 2022 addressed by Mr Chisoro to ELT were produced to that effect. I may draw attention to the following details borne in the two letters; -

Application to request for Inputs for the 2021-22 tobacco farming season

6 August 2021

P.O. Box 95

Darwendale

Simbamukaka

[Signed] Sam Jabulani Chisoro.

Application for Additional Working Capital and Ammonium Nitrate Fertiliser (Incremental Cost)

18 January 2022

Simbamukaka Pvt Ltd

P.O. Box 95 Darwendale Zvimba

[Signed] Sam Jabulani Chisoro

[16] The witness then detailed the procedure in place for delivering harvested and cured tobacco to the market (known as “the tobacco sales floors”). Further, the witness contended that it was the responsibility of the farmer to convey his crop to the sales floors even though ELT assisted in that regard.

[17] In addition, Mr Tanyanyiwa testified that the identification, correct grading and custody of the crop up to the sale point at the floors also formed part of the farmer`s obligations. On that point, the witness state that tobacco crop delivered to the sales floors was managed by an entity named TSF, under regulatory oversight of the Tobacco Industry Management Board (“TIMB”).

[18] He told the court that the crop management framework at the sales floors was quite stringent. The intent being to avert malpractices to falsify the quality or quantity of the famer`s crop through switching or blending the contents of deliveries. Mr Tanyanyiwa`s further evidence was that Mr Chisoro`s crop realised insufficient funds to cover his indebtedness to ELT. The latter was paid only US$21,000 leaving a shortfall of US$43,000. Mr. Sithole subjected this witness to a searching cross examination.

[19] The witness was challenged on the applicable currency governing Mr Chisoro`s obligations under the contract. He was also tested at length on why the sales sheets at the tobacco floors bore the tobacco farmer/seller`s name as “Simbamukaka” rather than Mr Chisoro. Mr Sithole contended during cross-examination of this witness, that the crop was either contaminated and or interfered with before delivery to market. Counsel also grilled the witness on how the sale proceeds were calculated, processed and disbursed.

[20] The next witness for plaintiff was Mr Dewe- a Gwebi Agricultural College-trained agronomist specialising in the tobacco industry. As ELT`s Field Officer at the time, his task was to follow up on the company`s farmer-borrowers in order to monitor performance of the crop. He was closer to Mr Chisoro insofar as the farming operations were concerned. As such, he related details of Mr Chisoro `s farming activities.

[21] A number of colour photographs depicting various scenes at Mr Chisoro`s farm were produced through the witness. Important out of these was the witness`s testimony that Mr Chisoro`s crop was adversely impacted by the year 2021-22 farming season`s erratic rains. Mr Dewe also testified that the prospects of Mr Chisoro`s crop being interfered with en route to the sales floors were minimal. A truck was allocated specifically to ferry Mr Chisoro`s produce.

[22] This was a special arrangement peculiar to Mr Chisoro because other growers` tobacco bales were all piled up and ferried to the market in one lorry. The witness was quizzed on his qualifications, observations at the farm as well as the intricacies of the tobacco grading system. Thus concluded the evidence led by the plaintiff. Before commenting on it, I will retrace briefly, the legal principles governing treatment of the evidence in applications for absolution from the instance.

THE LAW ON ABSOLUTION FROM THE INSTANCE

[23] Counsel from both sides drew my attention, in their closing submissions, to what ZHOU J described-in Paperhole Investments (Pvt) Ltd v Pioneer Hi-Breed Zimbabwe (Pvt) Ltd HH  485-15 -as a “welter of authorities” on absolution from the instance.  In that “contract farming” decision whose facts were largely similar to those in the present matter, ZHOU J cited the locus classicus on the subject; - Gascoyne v Paul & Hunter 1917 TPD 170, in which the court held as follows at page 173; -

“At the close of the plaintiff’s case, therefore, the question which arises for the 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.”

[24] See also Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A), United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S), Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88 (SCA), Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) and Indium     Investments (Pvt) v    Kingshaven (Pvt) Ltd   & 2 Ors SC 40-15 among others.

[25] In the same vein, CHIGUMBA J traced the Roman-Dutch origin of the doctrine of absolution from the instance whose purpose she summarised as follows in MC Plumbing (Pvt) Ltd v Hualong Construction (Pvt) Ltd 2015 (1) ZLR 138 (H) at 144 C-D; -

“Absolution from the instance means that the plaintiff has not proved a case against the defendant, and it is to be distinguished from a positive finding that no claim exists against the defendant. Where a defendant has been absolved from the instance, the plaintiff may reinstitute the action, provided that it has not prescribed. The rationale behind absolving a defendant from the instance is that, due to the insufficiency of the plaintiff’s evidence and failure to establish an essential element of its claim, the defendant should be spared the trouble and the expense of continuing to mount a defence to a hopeless claim.” [ for emphasis]

[26] More recently, the Supreme Court in Tizai Chiswanda v OK Zimbabwe Limited SC 84-20, per GOWORA JA (as she then was) examined the leading authorities and issued the following guidance at [17]; -

“Crucially the test to be applied is not whether or not the evidence for the plaintiff establishes what would finally be required to be established to obtain judgment. The evidence required at this stage is whether or not the plaintiff has made out a prima facie case to prove the claim. The correct approach to an application for absolution from the instance was set out in Gordon Lloyd Page & Associates v Rivera 2001(1) SA 88, at pp92-93 by HARMS JA. He stated:

“The test for absolution to be applied by a trial court at the end of a plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes 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), nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)).’

This implies that a plaintiff has to make out a prima facie case-in the sense that there is evidence relating to all elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-92) As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is ‘evidence upon which a reasonable man might find for the plaintiff’ (Gascoyne (loc cit))-a test which has its origin in jury trials when the ‘reasonable man’ was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue.  The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another ‘reasonable’ person or court.

Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interest of justice.”   [ Underlined and marked in bold for emphasis]

[27] The Learned Judge of Appeal proceeded to cite the remarks of BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd at 5-6:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that there is justice between the parties, and, so far as is possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not be lightly deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance. I might usefully quote here what was said by SUTTON J in Erasmus v Boss 1930 CPD 204at 207:

“In Theron v Behr 1918 CPD 443, JUTA J, at p451 states that according to the practice in this court in later years judges have become very loath to decide upon questions of fact without hearing all the evidence on both sides.”

“We in this territory have always followed the practice of the Cape courts. In case of doubt at what a reasonable court might do, a judicial officer should always, therefore, lean on the side of allowing the case to proceed.” [Underlined for emphasis]

[28] The authorities issue clear guidance on how a court faced with an application for absolution from the instance must approach its task. The following considerations are apt; -

Has plaintiff established a prima facie case against the defendant

Has plaintiff addressed (not proven) in evidence all elements of its claim

The court applies a lower threshold of scrutiny of plaintiff`s evidence

Unless manifestly discredited, the court presumes veracity of plaintiff`s evidence

The courts are loathe to dismiss a case on the basis of one side

As a legal principle, absolution from the instance derives from the need to do justice between the parties.

APPLYING THE LAW TO THE FACTS

Items (i), (ii) and (iv) from the list in paragraph [25] above; -

[29] I will focus on the key considerations emanating from the evidence as well as arguments in the written submissions on the point. I start with Mr Sithole`s summary of what constitutes the prima facie case in paragraph 6 of his closing submissions that; -

“From a reading of the abovementioned issues, it is quite clear that the issues demanded that the plaintiff adduces evidence to establish that it advanced a facility which was sounding in USD currency and the money of payment and or account had to be in USD currency such that the defendant, if liable would have to pay the plaintiff the amount claimed in USD per the summons and declaration.” [emphasis mine]

[30] I am unable to agree. The stress and emphasis which counsel placed on the currency aspect of claim distorted, with respect, the essential elements forming the prima facie case before the court. I must return to the issues flagged for trial referred to in paragraph [8] above. These clearly articulated the controversy before the court. The matter, according to the pleadings, may be broken down into its constituent parts by asking a few questions to Mr Chisoro; -

[31] These being- did you borrow? Did you repay? And if not, why must you not be ordered to repay? These are the fundamental matters constituting the creditor-debtor-lender-borrower dispute before the court. I was referred to the seminal decision of Magodora & Ors v Care International 2014 (1) ZLR 397 (S) on how a court faced with a contractual dispute must address the issues before it.

[32] This authority has been followed consistently in our jurisdiction. The Supreme Court returned to it a few years later in Ashanti Goldfields Zimbabwe Limited v Jafati Mdala SC 60-17 and held at page 4 that; -

“It is an accepted principle of our law that courts are not at liberty to create contracts on behalf of parties, neither can they purport to extend or create obligations, whether mandatory or prohibitory, from contracts that come before them. The role of the court is to interpret the contracts and uphold the intentions of the parties when they entered into their agreements provided always that the agreement meets all the elements of a valid contract.”  [ underlined and bolded for emphasis]

[33] Before the court is a loan agreement. The learned author J.T.R Gibson reduced the essential elements of such contract as follows at page 441 of his work, Wille`s Principles of South African Law citing Grotius and Voet; -

“Mutuum, Verbruiklening, or loan for consumption, is a contract whereby one person delivers some fungible thing to another person who is bound subsequently to return to the former a thing of the same kind, quality and quantity. There must be an obligation on the part on the receiver to return an equivalent to what he has received….”

[34] The question becomes; - how were these essential elements framed in the pleadings? And the evidence? I say so because my reading of the authorities especially Tizai Chiswanda, Indium     Investments (Pvt) v    Kingshaven (Pvt) Ltd   and MIPF v DAB Marketing (Pvt) Ltd SC 25-12 is that careful heed must be paid, in applications for absolution from the instance, to the manner in which a matter was pleaded.

[35] In MIPF v DAB, MAKARAU JA (as she then was) resolved-to a significant extent-the dispute before her on the basis of admissions made in the pleadings. Similarly, the following crucial observation founded part of the Supreme Court`s ratio in Tizai Chiswanda; -

“[21]	It seems to me that by pleading in the manner that it did, OK Zimbabwe alleged that it had knowledge of facts surrounding the collapse of the shelf. It pleaded that the child had climbed the shelf. It stated that the shelf collapsed due to the weight of the child. In my view it has offered a defence as to why the child got injured.”

[36] I return to the present matter and how it was pleaded. I summarised the parties` respective positions as borne out in the pleadings above .Essentially, ELT alleged an unpaid loan that was now due by Mr Chisoro. But the defendant Mr Chisoro was, to say the least, rather fluid in his plea. He challenged executing an agreement with terms and conditions, protested that his tobacco “bails” (sic) were interfered with, before dismissing the interest claimed as scandalously atrocious. These 2 positions founded the prima facie case before the court.

[37] Evidence was led by ELT that a contract was concluded by the parties. There was performance in the form of delivery of inputs, cash and fuel to Mr Chisoro. This evidence was not disputed. The question of currency and quantum were not specifically pleaded. They become, in my view, secondary to the prima facie case.

[38] Another key aspect of the defence suggested that Mr Chisoro`s tobacco crop carrying a sufficient value to offset the indebtedness was despatched from his farm to the sales floors. And to ELT`s credits, thus liquidating Mr Chisoro`s obligation. Except that Mr Chisoro blamed ELT and or its agents for interfering with this crop quality- to his prejudice.

[39] The second plaintiff witness Mr Dewe`s testimony was that Mr Chisoro`s crop was afflicted by adverse weather (insufficient rains) on the field. As such, it was unlikely to yield an excellent grade at the sales floors. Like Mr Tanyanyiwa, Mr Dewe also testified on the conveyance, receipt, storage, grading, sale and settlement of sale proceeds.

[40] Whilst the evidence was rigorously tested in cross examination, I cannot say that it was thoroughly discredited. It still remains that a loan was advanced and remains partly due and outstanding.  Having regard to the aforegoing testimony, it is clear that plaintiff laid evidence addressing the key elements of its claim.

Items (iii), (v) and (vi).

[41] Based on the threshold fixed in the authorities above, I am satisfied that the plaintiff has placed before me, and to the requisite threshold -the essential elements of a prima facie case. It will be necessary to hear from defendant on matters such as his understanding of the terms and conditions of the contract, the import of his correspondence with ELT, as well as the steps taken in the harvest, curing, grading, packing and conveyance of his crop.

[42] The sting of Mr Sithole`s arguments (on currency, terms of the contract and alleged concessions) in the closing submissions is rendered meretricious by the above observations regarding the prima facie case. I need not therefore detail counsel`s said arguments because the findings on the prima facie case largely dispenses with them.

[43] Similarly, it will be just and proper that Mr Chisoro addresses the court in evidence on the proceedings at the sales floor including the total payments made. Much was also made out of the distinction between defendant Mr Sam Jabulani Chisor and an entity known as Simbamukaka (Pvt) Ltd.

[44] As indicated above, evidence was led that Mr Chisoro addressed correspondence routinely associating himself with Simbamukaka. The summons cited him as trading as Simbamukaka. Only Mr Chisoro can unravel his relationship with this entity whose inspiring name simbamukaka extols, in Zimbabwean vernacular, the virtues of unrelenting industry.

DISPOSITION

[45] In view of the aforegoing, it is my conclusion that the defendant failed to meet the threshold set in applications for absolution from the instance. I thus issue the following order; -

The application for absolution from the instance be and is hereby dismissed with costs.

Scanlen & Holderness-plaintiff`s legal practitioners

Mabuye Zvarevashe-Evans-defendant`s legal practitioners

[CHILIMBE J___31/10/25]