ASP Marketing CC v Lunar Chickens [Pvt] Ltd & Ors

The plaintiff, a South African close corporation, sued the defendants (four Zimbabwe-registered entities including companies and an individual, Gideon Gono) for payment of US$2,201,044.05, being the balance of the purchase price for maize grain and soya beans sold and delivered between 2009 and 2010. The grains were delivered pursuant to contracts between the plaintiff and the first defendant (Lunar Chickens), represented by the second defendant (Gideon Gono). The plaintiff sought to pierce the corporate veil to hold Gideon Gono personally liable, alleging the companies were his alter egos and that he conducted their affairs recklessly or fraudulently. Alternatively, the plaintiff claimed unjust enrichment. The defendants raised special defences (prescription, arbitration, illegality, lack of authority, currency issues, and misjoinder) which were dismissed in a previous judgment (HH535-23) upheld on appeal. The defendants pleaded on the merits that the real agreement was an equity-debt-swap where the plaintiff would acquire equity in the first defendant through grain supply, not a sale contract. After the plaintiff closed its case following testimony from its sole witness (Vandeyar), the defendants applied for absolution from the instance, arguing the plaintiff had led insufficient evidence on liability and quantum.

• Whether absolution from the instance should be granted at the close of the plaintiff's case
• Whether a defendant who bears the onus of proof on the remaining issues for trial can properly apply for absolution from the instance
• The effect of findings made in a previous interlocutory judgment on special pleas
• The legal test for absolution from the instance in civil proceedings
• The significance of a joint pre-trial conference minute allocating the burden of proof

The application for absolution from the instance was dismissed with costs. The trial was ordered to resume on a date and time to be advised by the Registrar.

A defendant who bears the onus of proof on the remaining substantive issues for trial cannot properly apply for, nor be granted, absolution from the instance at the close of the plaintiff's case. Where a defendant pleads confession and avoidance (admitting certain facts but alleging other facts to avoid liability), the burden of proof lies on the defendant to establish the facts constituting the avoidance. An application for absolution from the instance in such circumstances is impermissible. A joint pre-trial conference minute allocating the burden of proof between parties is binding and determinative of who must adduce evidence on particular issues. Where comprehensive findings of fact have been made in a previous interlocutory judgment dealing with special pleas, and that judgment has been upheld on appeal, those findings stand and the plaintiff is not required to re-prove those matters at the trial on the merits.

The court observed that courts are generally reluctant to grant absolution from the instance at the close of the plaintiff's case, preferring to hear all evidence before deciding questions of fact. The practice in South Africa and Zimbabwe has been that in cases of doubt, judicial officers should lean towards allowing cases to proceed. A defendant who might be afraid to testify should not be permitted to shelter behind the procedure of absolution from the instance. The court suggested that the application for absolution may constitute a stratagem to stall progress of the trial and potentially an abuse of court process. The court also reiterated the well-established distinction between the test for absolution at the close of the plaintiff's case (whether evidence exists upon which a court might find for the plaintiff - a prima facie case) versus the test at the end of the entire case (whether the plaintiff has established its case on a balance of probabilities - what the court ought to decide). The court noted that a joint pre-trial conference minute, while binding on parties regarding procedural matters and allocation of proof, is not a pleading in the strict sense.

This case is significant in Zimbabwean civil procedure (applicable to South African jurisprudence by analogy given the shared legal heritage) as it clarifies that absolution from the instance cannot be granted where the party applying for it bears the onus of proof on the remaining issues for trial. It reinforces the principle that where a defendant pleads confession and avoidance, they bear the burden of proving the avoidance. The judgment also demonstrates the binding effect of findings made in interlocutory judgments on special pleas, and the importance of joint pre-trial conference minutes in allocating the burden of proof. It serves as authority against abuse of procedural mechanisms to delay proceedings, particularly where previous comprehensive judgments have already addressed evidentiary issues and been upheld on appeal.