Conscious Mativenga v Lafarge Cement Zimbabwe Limited

The plaintiff was a former employee of the defendant who was retrenched. On 3 August 2016, he entered into a franchise agreement with the defendant to sell cement in the defendant's franchised containers. The agreement was later terminated. The plaintiff paid US$600.00 for the delivery of 600 bags of Supaset cement. The defendant failed to deliver the cement timeously, resulting in civil proceedings in the Magistrate's Court where the defendant was ordered to deliver the 600 bags or reimburse the plaintiff the retail cost equivalent. The Magistrate's judgment was extant. The plaintiff then instituted High Court proceedings on 3 November 2020 claiming US$100,000.00 in compensatory damages for loss of business and profits allegedly arising from the delayed delivery. The plaintiff led evidence from himself only, presenting hypothetical scenarios of profit calculations without documentary evidence. He claimed that in a worst-case scenario he would sell a minimum of 2 loads (1200 bags) per month with a 6% profit, which over 24 months would generate US$100,000.00 in profits.

• Whether the plaintiff discharged the onus of proving his claim for damages on a balance of probabilities
• Whether sufficient evidence was placed before the court upon which the court might find for the plaintiff
• Whether the application for absolution from the instance should be granted
• What constitutes adequate proof of loss of profits in a commercial claim for damages

The application for absolution from the instance was granted with costs in favor of the defendant.

A plaintiff claiming damages for loss of profits bears the onus of proving on a balance of probabilities that the profits would have been earned. This cannot be established through mere hypothetical scenarios or speculative calculations without documentary evidence such as bank statements, business records, or accounts demonstrating actual income and expenditure. Where a plaintiff fails to produce such evidence and instead attempts to shift the onus onto the defendant to prove the plaintiff's case, absolution from the instance will be granted. The test for absolution from the instance requires that there be evidence upon which the court, directing its mind reasonably to such evidence, could or might find for the plaintiff; speculative evidence without documentary support does not meet this threshold.

The court observed that while the plaintiff correctly noted that in commercial transactions time is of the essence and that a party who suffers from breach of contract should be placed in the position they would have occupied had the contract been performed, the issue was not merely whether the plaintiff was entitled to some damages, but whether the plaintiff had proven the specific quantum of damages claimed. The court also noted that where a judicial officer has no doubt in their mind from the evidence submitted, absolution should be granted, and the key issue is whether sufficient evidence has been placed before the court upon which the court might find for the plaintiff.

This case reinforces the strict evidentiary requirements for proving claims for loss of profits and damages in commercial disputes in Zimbabwe. It emphasizes that plaintiffs cannot rely on mere hypothetical scenarios or speculative calculations without corroborating documentary evidence such as bank statements, business records, income and expenditure accounts. The case also reaffirms the well-established test for absolution from the instance and demonstrates the court's unwillingness to accept attempts by plaintiffs to shift the onus of proof onto defendants. It serves as a cautionary reminder to litigants that the burden of proof rests squarely on the party making an affirmative assertion and that this burden cannot be discharged through speculation or by requesting the opposing party to provide evidence on one's behalf.