T N Zunzanyika Associates v TSL Properties (Pvt) Limited

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T N ZUNZANYIKA ASSOCIATES
versus
TSL PROPERTIES (PVT) LIMITED


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 27 May, 1 June and 30 June 2021


Trial

A.Muchandiona, for the plaintiff
S. Bhebhe, for the defendant


        CHIRAWU-MUGOMBA J: The matter before me is an application for absolution
from the instance at the close of the plaintiff’s case. The brief facts of the case are as follows.
The plaintiff seeks payment of the Zimbabwean dollar equivalent of US$607, 453, 35
calculated at the interbank rate prevailing as at the date of payment. After initial denial of
liability by the defendant, the only issue that remained for trial was couched in the joint pre-
trial conference minute as follows, “Whether or not the obligations that gave rise to this
action were caused before or after 22 nd February 2019”. The date is significant in view of the
interpretation by the Supreme Court of the meaning and impact of S.I 33/19. See Zambezi
Gas (Pvt) Ltd v N.R Barber (Pvt) Ltd and anor, SC 3-20 and Breastplate (Pvt) Ltd v Cambria
Africa PLC, SC -66-20.      Essentially if the debt accrued before 22 nd of February 2019, the
amount to be paid would be on the basis of one to one between the United States and the
Zimbabwean currency. If after 22 February 2019, the debt must be paid at the prevailing
exchange rate as at the time of payment.
        The law on absolution from the instance has been set out in a plethora of cases. There
is a difference as stated in the cases on an application at the close of the plaintiff’s case and
the defendant’s case. See Danha v Mudzongachiso and anor, 2018(1) ZLR 74(H) and the
cases cited. See also Moyo and anor v Methodist Church (Greendale) 2018(1) ZLR 375(H).
        The plaintiff located its claim squarely in the law of contract, that after completion of
some work for the defendant, it presented an invoice and it was not paid and therefore it was
suing for specific performance. In support of its claim, at the trial the witness for the
plaintiff, one Norman Zunzanyika told the court that since 2017 it has entered into various
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agreements with the defendant to work on various estates as in properties. During the
currency of the first job, the defendant contracted the plaintiff for two other projects. For the
dispute in casu, the defendant’s representative contacted the plaintiff via email with a
subsequent meeting held at the defendant’s offices. The contract was for the construction of a
warehouse, a steel structure, cladding, brick work and concrete floor. The job was completed
in May 2019. Sometime in June or July 2019, the plaintiff billed the defendant and were paid
in part in RTGS$ for the amount in dispute. In support various documents were produced as
exhibits and accepted into evidence. Under cross examination Mr Zunzanyika stated that the
contract was not in writing. He admitted that a previous non-paid fee of $75 000 was
deducted from an invoice send to the defendant that essentially reduced the amount owed to
$607 453.3
       The task before the court is therefore to consider whether or not the plaintiff has set
out a prima facie case, one which the court can say, needs to be explained or rebutted by the
defendant. It is trite that courts are loath to grant applications for absolution from the instance
at the close of a plaintiff’s case since this potentially infringes upon a litigant’s
constitutionally protected right to equality and right to equal protection and benefit of the law
and the right to a fair hearing – see sections 56(1) and 69 of the 2013 constitution. It also
infringes potentially on the right to be heard under the rules of natural justice. That is why
the standard of proof is the less onerous one of a prima facie case. To that end, it is worth
repeating the test that has stood the test of time as enunciated in Gascoyne v Paul and
Hunter 1972 TPD170 at p 173, and quoted with approval in the Danha case (supra as
follows;
       “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’.”

       In my view, for the plaintiff to successfully establish a prima facie case and having
located its dispute in contract and in view of the only issue for trial being the date on which
the obligation to pay arose, ought to establish the following- that there was a contract, the
clear and unambiguous terms of the contract including the issue of payment, i.e. when was it
due. To that end, reference is made to Stratus Consulting (Pvt) Ltd v Zimbabwe Assemblies
of God Africa, HH-494-19. Citing Gordon Lloyd Page and Associates Ltd v Rivera &
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another, 2001 (1) SA 88 (SCA), DUBE J had this to say on what a plaintiff who relies on
breach of contract have to prove at the close of his case;-
   a. The contract relied on
   b. Breach of the contract or repudiation of the contract
   c. The damages suffered
   d. A causal link between the breach and repudiation and the alleged damages
   e. Loss, which must not be too remote


       More importantly she said as follows, ‘What the Gordon Lloyd Page case illustrates
is that in a case where the cause of action is breach or repudiation of a contract, the plaintiff
must lead evidence regarding the existence of a valid contract sought to be relied on and its
material terms. (my emphasis).
       In my view, the plaintiff failed to make out a prima facie case that the defendant
ought to answer. Given the fact that the plaintiff and the defendant had been engaged in other
contracts, there was no evidence as to when exactly the contract giving rise to the obligation
to pay was entered into. There was no evidence of what the clear terms were including
payment. None of the exhibits tendered support the requirements as stated above. As a matter
of fact, exhibit number 9 threw the plaintiffs case into disarray because it included a figure of
‘less $75000’ from the previous invoice. The question would be why include this figure in a
‘new contract’? The witness failed to explain and put it to ‘semantics’. Courts operate on the
basis of the law as applied to the facts and not on suppositions. Establishing the clear terms
would have enabled the plaintiff to also deal with the pertinent issue, that of the dates of
payment. It was crucial for plaintiff to have dealt with each alleged contract one by one so
that there could be a distinction with the disputed one. Instead, the evidence leads to the
conclusion that there were a series of ongoing contracts but with the terms not clarified. The
plaintiff submitted that the documents i.e drawings in relation to the work contracted were
‘available’ but these were never discovered or tendered into evidence.
       In answer to the test and standard enunciated above, there is no evidence placed
before the court upon which a reasonable person would give judgment in favour of the
plaintiff. Even if the defendant would close its case and not call witnesses, the prima facie
evidence that is expected in a case of alleged breach of contract, one in which dates are
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crucial was simply not placed before the court. It would be therefore be an exercise in futility
to hear the defendant’s side of the matter.
       Costs usually follow the cause and I see no reason why the defendant should not be
awarded its costs.
DISPOSITION

        1.     Absolution from the instance is hereby granted to the defendant.

       2.      The plaintiff shall pay costs of suit




Danziger and Partners, plaintiff’s legal practitioners
Kantor and Immerman, defendant’s legal practitioners