Afesi Mkhweli v Shingirai Marufu and Postal and Regulatory Authority of Zimbabwe

On 31 December 2016, the plaintiff was a passenger in a commuter omnibus, seated next to the driver. The first defendant, an employee of the second defendant, was driving an oncoming vehicle. The vehicles collided on a narrow stretch of road where vehicles passing each other should move to the extreme left. The plaintiff sustained a fractured right leg, was hospitalized for four months, received treatment for a year, and sustained 40% permanent disability. The plaintiff claimed the first defendant was speeding and encroached into the commuter omnibus's lane. However, during cross-examination, the plaintiff made critical concessions: he admitted the commuter omnibus driver did not move to the extreme left as required; the first defendant did move to the extreme left; the first defendant's vehicle skidded on clay/mud on the road; and the skidding occurred when the first defendant tried to move further left to avoid the commuter omnibus that had not properly shared the road.

• Whether the plaintiff established a prima facie case of wrongful conduct (negligence/recklessness) by the first defendant sufficient to resist absolution from the instance
• Whether the essential elements of a delictual claim were satisfied: harm suffered, wrongful conduct, and causal link
• Whether the plaintiff's concessions during cross-examination fatally undermined his claim
• Whether there was sufficient evidence upon which a court might reasonably find for the plaintiff

Absolution from the instance granted in favour of both defendants. The plaintiff was ordered to pay the costs of suit.

In an application for absolution from the instance in a delictual claim, where the plaintiff during cross-examination concedes to the defendant's version of events that negates the element of wrongful conduct, the plaintiff fails to establish a prima facie case and absolution must be granted. The three essential elements of a delictual claim are: (1) harm suffered by the plaintiff; (2) wrongful conduct by the defendant; and (3) a causal link between the defendant's conduct and the plaintiff's harm. All three elements must be established before the court can proceed to assess quantum. A plaintiff cannot simultaneously accept a defendant's exculpatory defence and maintain a claim based on that defendant's wrongful conduct, as these positions are mutually exclusive. The test for absolution is whether there is sufficient evidence upon which a court might make a reasonable mistake and give judgment for the plaintiff; where concessions destroy an essential element of the claim, this test is not satisfied.

The court noted that there were also problems with the lack of evidence to support some of the heads of damages claimed by the plaintiff, particularly regarding proof of discharge from employment on medical grounds and evidence justifying the quantum of various claims. However, the court stated it would not deal with these issues in detail as they were only relevant where liability (wrongfulness) had been established, which was not the case here. The court also observed that the plaintiff's evidence on excessive speed was not properly substantiated - the plaintiff merely used his eyes to deduce speed, and even if the police officer's evidence was accepted as corroboration, this claim was destroyed by the plaintiff's concessions regarding the commuter omnibus driver's improper conduct and the first defendant's vehicle skidding on mud while trying to avoid a collision.

This case illustrates the critical importance of consistent testimony in civil litigation and the potentially fatal consequences of concessions made during cross-examination. It demonstrates that where a plaintiff concedes to the defendant's version of events that negates an essential element of the claim (in this case, wrongful conduct), absolution from the instance will be granted. The case reinforces that for a delictual claim to succeed, all three elements (harm, wrongful conduct, and causation) must be established at least prima facie. It also confirms the application of the Supreme Service Station test for absolution from the instance in Zimbabwean law, requiring assessment of whether there is sufficient evidence upon which a reasonable court might find for the plaintiff. The case serves as a cautionary example for litigants about the danger of making admissions during cross-examination that undermine the foundation of their own case.