Africa Albida Tourism (Pvt) Ltd and Victoria Falls Safari Lodge Hotel (Pvt) Ltd v Zimnat General Insurance; Spencers Creek (Pvt) Ltd v Zimnat General Insurance

The plaintiffs operated tourism businesses in Victoria Falls, Zimbabwe, holding insurance policies with the defendant covering business interruption due to notifiable contagious or infectious diseases at their premises. In March 2020, two elderly UK tourists (Mr. and Mrs. O'Shaughnessy) stayed at Ilala Lodge from March 7-10, 2020. During their stay, they exhibited COVID-19 symptoms and sought medical attention. They were cleared by local doctors (Dr. Ndikudze and Dr. Musinami-Mvura) and returned to the UK, where they allegedly tested positive for COVID-19. Several employees at Ilala Lodge and the plaintiffs' premises subsequently developed COVID-19-like symptoms through a chain of contacts, though none were tested for the virus. Following a national lockdown directive issued by the President on March 27, 2020, the plaintiffs closed their premises for approximately three months from March 30, 2020. Africa Albida Tourism claimed losses of US$1,066,239.00, while Spencers Creek claimed US$1,400,000.00 under their respective insurance policies. The defendant rejected the claims. At the close of the plaintiffs' case, the defendant applied for absolution from the instance, arguing that the plaintiffs failed to prove that COVID-19 actually occurred at their premises, particularly given the absence of positive COVID-19 tests and the failure to call the O'Shaughnessy couple as witnesses.

• Whether the plaintiffs established a prima facie case for business interruption claims based on the occurrence of a notifiable disease (COVID-19) at their premises
• Whether absolution from the instance should be granted at the close of the plaintiffs' case
• Whether proof of COVID-19 occurrence required conclusive testing or could be established on a balance of probabilities through circumstantial evidence and expert opinion
• Whether the failure to call key witnesses (the O'Shaughnessy couple) was fatal to the plaintiffs' case
• Whether notice of the claim was given within a reasonable time
• The proper test to be applied when determining an application for absolution from the instance

The defendant's application for absolution from the instance at the close of the plaintiffs' case was dismissed. Costs were ordered to be in the cause.

The binding legal principles established are: (1) In an application for absolution from the instance at the close of the plaintiff's case, the test is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff - whether a prima facie case has been made out; (2) A court should be extremely chary of granting absolution at the close of the plaintiff's case and must assume, in the absence of very special considerations such as inherent unacceptability of evidence, that the evidence is true; (3) The court should not at this stage evaluate and reject the plaintiff's evidence or assess credibility; (4) Where a plaintiff relies on inferences, the court will refuse absolution unless satisfied that no reasonable court can draw the inference for which the plaintiff contends; (5) Absolution may be granted if the plaintiff has failed to establish an essential element of the claim; (6) There must be some evidence on all essential averments for a plaintiff to survive absolution - if there is evidence on some but not all essential averments, absolution may be granted; (7) In the context of insurance claims for business interruption due to notifiable diseases, the occurrence of the disease may be proven on a balance of probabilities through circumstantial evidence, expert medical opinion, and chains of contact, and does not necessarily require conclusive diagnostic testing; (8) The failure to call particular witnesses, even key witnesses, does not automatically warrant granting absolution if other evidence supports the essential elements of the claim.

The court made several non-binding observations: (1) The court noted that COVID-19 was described as "novel" and that "the world is never as we knew it before," acknowledging the unprecedented nature of the pandemic; (2) The court commented on counsel's conduct in attaching a sworn statement with submissions, noting that opposing counsel characterized this as "smuggling of evidence" but ultimately appeared to accept and use the evidence; (3) The court observed that as a matter of professional courtesy, senior counsel should ideally not take each other by surprise with procedural applications, though there was nothing legally improper in doing so; (4) The court noted it would not comment in detail on the credibility of witnesses at this stage, as credibility was not the issue before it on the absolution application; (5) The court observed that questions and propositions put to witnesses in cross-examination are not evidence and remain propositions of fact unless admitted or proven; (6) The court acknowledged being placed in an "invidious position" when determining absolution applications, having to decide a dispute after hearing only half the case; (7) The court expressed the view that it would "greatly benefit from hearing the case of the Defendant and the closing submissions of both parties" before conducting an in-depth analysis of the evidence.

This judgment is significant in Zimbabwean jurisprudence for several reasons: (1) It demonstrates the courts' application of established principles on absolution from the instance in the novel context of COVID-19 insurance claims; (2) It confirms that courts should be extremely reluctant to grant absolution at the close of a plaintiff's case, particularly where the plaintiff's case rests on inferences from circumstantial evidence; (3) It establishes that in insurance claims for business interruption due to notifiable diseases, proof of the disease's occurrence need not necessarily be established through conclusive diagnostic testing but may be proven on a balance of probabilities through circumstantial evidence, expert testimony, and chains of contact; (4) It confirms that the absence of key witnesses does not automatically defeat a plaintiff's case at the absolution stage; (5) The judgment provides important guidance on how courts should approach COVID-19-related insurance claims where direct proof may be difficult to obtain due to testing limitations and witness availability; (6) It reaffirms the high threshold for granting absolution and the principle that credibility and evidential weight are matters to be determined after hearing the entirety of the evidence.