Costxam Investments (Pvt) Ltd v Larkon Enterprises (Pvt) Ltd and Watyoka Aggrippa

On 28 July 2010, the second defendant, whilst in the course and scope of his employment and driving the first defendant's motor vehicle, negligently hit and damaged a garage which the plaintiff was leasing. The accident resulted in the collapse of the leased garage, thereby affecting the plaintiff's business operations as a service station. The plaintiff claimed consequential damages in the sum of US$46,236.00, comprising rentals for the leased property and salaries paid to employees for four months during which operations were severely curtailed. The defendants conceded negligence at pre-trial conference, leaving quantum of damages as the sole issue for determination. The plaintiff led evidence through its Managing Director (Dennis Rutendo Mutseriwa) and Assistant Manager (Susan Sekete), producing exhibits 1 and 2 purporting to show salary schedules and trading volume disparities. However, the plaintiff failed to produce original supporting documents such as books of accounts, wage books, or pay slips. The two witnesses gave conflicting evidence on the number of employees (variously stated as 15, 16, 18 or 20) and their wages. The third witness who allegedly compiled the critical exhibits was not called to testify.

• Whether the plaintiff had led sufficient evidence to prove the quantum of damages claimed
• What standard of proof is required when quantum of damages is put in issue
• Whether absolution from the instance should be granted where a plaintiff fails to produce available documentary evidence to support a claim for damages
• The effect of accepting the production of documentary exhibits under section 51 of the Civil Evidence Act

Absolution from the instance granted, with no order as to costs. The defendants were deprived of costs despite succeeding because they had accepted negligence at pre-trial conference.

Where quantum of damages is in issue, a plaintiff must lead sufficient evidence to enable the court to assess damages and must not leave the court to guess at amounts. When a plaintiff is in a position to lead evidence which will enable the court to assess damages but fails to do so, the court is justified in granting absolution from the instance. The mere acceptance of production of documentary exhibits does not constitute conclusive evidence of acceptance of the contents of such exhibits. The test for absolution from the instance is whether there is sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff. Damages must be proven through substantive evidence that puts the claim in the confidence of the court, not through unsubstantiated summaries or compilations lacking original supporting documentation.

The court observed that the case ought not to have been allowed to go beyond the plaintiff's case, suggesting that absolution should have been granted immediately after the plaintiff closed its case. The court also commented that it was ironic that the plaintiff's counsel only sought to call a third witness (whose summary was not part of pre-trial materials) after realizing the inadequacies of the evidence, and then shifted positions on who compiled the exhibits when that witness could not be located. The court rhetorically questioned why a Managing Director would sit down to compile such exhibits in a fairly big enterprise. The court noted that liability does not depend on how emotional or sympathetic evidence is presented but on the quality of such evidence.

This case is significant in Zimbabwean (and by extension South African) law for reinforcing strict evidentiary requirements in claims for damages. It emphasizes that: (1) plaintiffs claiming damages must produce substantive documentary evidence, not mere summaries or compilations; (2) conflicting testimony and failure to call key witnesses will be fatal to a claim; (3) acceptance of production of documents does not equate to acceptance of their contents; (4) courts will not guess at quantum of damages when evidence is available but not produced; and (5) absolution from the instance is an appropriate remedy where a plaintiff fails to discharge the evidentiary burden despite having access to the necessary proof. The case serves as a warning to litigants and their legal practitioners to properly prepare and present documentary evidence in damages claims.