Boarder Transport v Tectrans (Private) Limited

Boarder Transport (plaintiff) was in the transport business and downsized operations around 2010-2011 by leasing some tankers. One tanker (registration ABS 1305) was leased to Tectrans (defendant). In 2011, when Boarder decided to sell vehicles to pay outstanding worker salaries, it discovered six vehicles were missing from its premises. An investigation in mid-2012 revealed Tectrans was using these vehicles. Tectrans' managing director, Webster Samhembere, was a former Boarder employee. The vehicles were allegedly acquired through agreements with Boarder's late Managing Director, Mr. B. Chikumbo, who committed suicide on 8 September 2011. Boarder alleged the agreements were forged based on: (1) a forged company logo; (2) forged signatures of the late Mr. Chikumbo; and (3) no purchase price being deposited into its account. Tectrans claimed it validly purchased the vehicles, with payment made to Boarder's Finance Manager, Mr. Mandizvidza, in the presence of Mr. Chikumbo. Mandizvidza was subsequently reported to police by the late Mr. Chikumbo for fraud and remained on the run. At the close of plaintiff's case, defendant applied for absolution from the instance.

• Whether the plaintiff led sufficient evidence upon which a reasonable court might find in its favor
• Whether absolution from the instance should be granted at the close of plaintiff's case
• Whether first-hand hearsay evidence was admissible under section 27 of the Civil Evidence Act
• Whether the agreements of sale for the vehicles were valid or void/voidable due to alleged forgery
• Whether circumstantial evidence and forensic expert evidence established a prima facie case

The application for absolution from the instance was dismissed with costs. The defendant was put to its defense.

In an application for absolution from the instance, the test is not whether the court should or would find for the plaintiff, but whether a reasonable court might find in favor of the plaintiff based on the evidence presented. First-hand hearsay evidence is admissible under section 27(1) and (3)(a) of the Civil Evidence Act where the person giving evidence saw, heard, or otherwise perceived the statement being made, and where direct oral evidence from the person who made the statement would have been admissible. Where peculiar circumstances prevent a plaintiff from leading the most direct evidence (such as death of key witnesses), the court must consider whether a prima facie case has been made out that justifies hearing the matter to its conclusion. Absolution from the instance should not be granted where there remains a possibility that cross-examination of defense witnesses might establish facts supporting the plaintiff's case.

The court observed that applications for absolution from the instance should not be motivated by a desire to protect defendants from cross-examination. The court noted that courts generally adopt an approach that leans toward allowing cases to continue rather than granting absolution prematurely. Tsanga J remarked that the court should avoid taking an "armchair approach" in determining matters before it, suggesting that full hearing of evidence is preferable to premature determination. The court also noted that while the plaintiff's case did not stand on the firmest ground, the peculiar circumstances of the case (including the suicide of the managing director and the unavailability of the finance manager who was on the run from police) warranted allowing the matter to proceed to enable the court to arrive at a just and informed decision.

This case illustrates the Zimbabwean courts' approach to applications for absolution from the instance, emphasizing that the threshold is whether a court might reasonably find for the plaintiff, not whether it should or would. The judgment demonstrates judicial flexibility in dealing with evidential difficulties arising from unique circumstances such as the death of key witnesses. It also clarifies the application of section 27 of the Civil Evidence Act regarding admissibility of first-hand hearsay evidence in civil proceedings. The case reinforces the principle that courts generally lean toward allowing matters to proceed to full hearing rather than granting absolution prematurely, particularly where cross-examination of defense witnesses might yield material evidence.