Onismo Rutsito v Delta Beverages, a division of Delta Corporation Limited

HH 194-2011
                                                                               HC 3463/2010
ONISMO RUTSITO
versus
DELTA BEVERAGES, a division of
DELTA CORPORATION LIMITED


HIGH COURT OF ZIMBABWE
BERE J
HARARE, 7, 8, 9 March 2011


Civil Trial

I.E.G. Musimbe, for the plaintiff
Adv T. Mpofu, for the defendant


       BERE J: At the close of the plaintiff’s case the defendant swiftly moved to make an
application for absolution from the instance.

       What runs through the plaintiff’s declaration is the allegation that the defendant
lacked due diligence and care in the manufacturing of its product to the extent that the
product itself is not safe, clean, health and fit for human consumption.

       The plaintiff testified himself and called two more witnesses one of whom testified to
corroborate the plaintiff’s evidence that he had partaken of contaminated coke. That the
plaintiff drank coke which was not safe for human consumption could not have been
successfully challenged by the defendants as none of its representatives were present when
the partaking took place. The thrust of the defendant’s defence as demonstrated by the cross-
examination was the source of the drink in question.

       The second witness called by the plaintiff alleged he was also a victim of
contaminated coke on an entirely different occasion and in the court’s view, his unsolicitated
testimony tendered to corroborate the plaintiff’s contention that all was not well in the
defendant’s manufacturing of the product in question.

       Exhibits 8 and 9 which were produced by the plaintiff again tended to show that there
were some foreign substances in the defendant’s coke and this appeared, in the eyes and mind
of the court to show that there was something amiss with the defendant’s product.
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          The plaintiff testified that as a result of drinking the contaminated coke he ended up
incurring medical expenses some of which even the defendant’s counsel was unable to
challenge at the time he made an application for absolution from the instance.

          It appeared the defendant’s counsel’s position was that the plaintiff ought to have
used the defendant’s testing facilities at the defendant’s place if he felt there was something
wrong with the coke that he drank. I was not persuaded to accept this argument. In fact it
raises quite an interesting debate for one to argue that it would have been reasonably
expected for the plaintiff, being a victim of the alleged negligence of the defendant to make
use of the defendant’s facilities to either confirm or exonerate the defendant’s alleged lack of
care and due diligence.

          The plaintiff alleged in his declaration that he had suffered general damages in the
sum of US$20 000.00 for distress and anxiety.             The defendant counsel argued that in
acquilian action distress and anxiety are not recognisable. This obviously is a legal issue
which both the plaintiff and the defendant would have to deal with when all the evidence in
this case (including the defendant’s) have been gathered.

          Authorities are agreed on the test to be applied in deciding an application for
absolution from the instance. GUBBAY CJ eloquently laid down the legal position in the
following:

          “ A plaintiff will successfully with stand such an application if, at the close of his case
          there is evidence which a court, directing its mind reasonably to such evidence could
          or might (not should or ought to) find for him. See supreme SVC Station (1969)
          (Pvt) Ltd vs Fox and Goodridge (Pvt) Ltd 1971 (1) RLR (A) at SD – E ; Lowrence vs
          Ragar Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (s) at 158/B –
          E.”1
          Could or might the court in the instant case find for the plaintiff?   In the court’s view
the answer must be in the affirmative. The totality of the pieces of evidence put together by
the plaintiff appear to me to establish a prima facie case of negligence on the part of the
defendant. The defendant must not be denied the opportunity to explain its manufacturing
process to court by this application for absolution from the instance.

          In both cases2 cited by counsel for the defendant, the enquiry was allowed to run its
full course and the court was only able to make a proper determination after assessing the
1
    United Air Charterns v Jarman 1994 (2) ZLR 341 (S) at 343
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                                                                                   HH 194-2011
                                                                                    HC 3463/10

defendant’s evidence together with that of the plaintiff. It is clear to me that in both cases the
courts made a specific finding that there was a likelihood or probability of interference with
the defendant’s process after the product had left the production and distribution line on its
way to the retailer.

        These findings were not made as a result of conjencture but followed a thorough
analysis of the evidence placed before the court by both parties. I am unable to speculate on
such finding at this stage.     The defendant must give evidence to rebut the plaintiff’s
allegations which have been reasonably corroborated by the witnesses who testified.

        Consequently, the application for absolution from the instance is dismissed with costs
in the cause.




IEG Musimbe & Partners, Plaintiff’s legal practitioners
Messrs Dube, Manikai & Hwacha, defendant’s legal practitioners




2
   Delta Operations (Private) Limited t/a National Breweries v Charles Maraura Judgment No. SC
   106/99
2. Seliphias Musiyiwa vs Delta Corporations Limited t/a United Bottlers HH 64 - 2004