Dr. Emmanuel Lunga v Zimbabwe Electricity Transmission and Distribution Company

The plaintiff owned property at 9 Bargate Road, Northwood, Mount Pleasant, Harare, which was leased to the defendant from 1 October 2012 at a monthly rental of US$1,500. The defendant's employee, Mr. Tawona, occupied the premises. On 4 July 2013, around 9 pm, a fire occurred at the premises causing extensive damage. The plaintiff alleged the fire was caused by the wrongful and negligent conduct of the defendant's employee. The plaintiff's gardener, Gift Karise, who resided in the servants' quarters, was awoken by a call from the maid and witnessed the fire. Neither the plaintiff nor his gardener witnessed the fire starting. Gift Karise speculated that the fire was caused by a heater that had been left on between two sofas in the lounge during a power cut and then caused the fire when electricity was restored. The defendant initially appeared to admit liability but later obtained a forensic report in January 2014 (communicated in April 2014) which concluded the fire started in the ceiling due to an electrical fault. The plaintiff then conducted his own investigation with his gardener, despite having no qualifications in forensic fire analysis or electrical matters. The plaintiff claimed US$150,000 for repair costs, US$1,500 per month for loss of rental income, and US$1,800 per month for security costs.

• Whether the plaintiff established a prima facie case of negligence against the defendant to resist absolution from the instance
• Whether the plaintiff's evidence, based on speculation and inference without expert testimony, was sufficient to prove negligence
• Whether the doctrine of res ipsa loquitur was applicable to the case
• What standard of proof is required at the close of the plaintiff's case to resist an application for absolution from the instance

Absolution from the instance was granted. The plaintiff was ordered to pay the costs of suit.

1. At the close of the plaintiff's case in an application for absolution from the instance, the test is whether there is sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff. The plaintiff must adduce evidence relating to all essential elements of the claim. 2. Inferences supporting a claim must be based on known facts or evidence, not speculation or assumptions. Where the alleged negligence involves technical matters (such as the cause of a fire), expert evidence is required; lay testimony based on speculation is insufficient. 3. The doctrine of res ipsa loquitur does not apply in cases where non-negligent explanations for the occurrence are equally plausible, such as where a fire in electrified premises could result from electrical faults rather than occupant negligence. The mere occurrence of a fire coupled with the defendant's control of the premises does not, without more, give rise to an inference of negligence. 4. A plaintiff cannot rely on putting the defendant on its defence to adduce evidence that the plaintiff could and should have obtained through diligent preparation, including compelling discovery or engaging expert witnesses.

The court observed that this was not a case sitting as a commission of inquiry to establish what caused the fire, but rather to determine whether the defendant was liable for the plaintiff's loss. The court noted that even if the defendant were put on its defence and gave an incorrect theory, that would not make the plaintiff's theory correct in the absence of expert evidence. The court also commented that the plaintiff had been negligent in failing to compel discovery of the fire brigade report before trial commenced and in failing to engage independent fire experts, instead sitting on his laurels and later attempting to conduct his own investigation despite lacking relevant qualifications.

This case illustrates the strict application of the test for absolution from the instance in Zimbabwean civil procedure. It emphasizes that speculation and assumptions, even if seemingly reasonable, cannot substitute for proper evidence, particularly expert evidence, when proving technical matters such as the cause of a fire. The case also clarifies the limits of res ipsa loquitur in fire damage cases involving electrified premises, holding that the mere occurrence of a fire does not automatically raise an inference of negligence where alternative non-negligent explanations (such as electrical faults) are possible. It reinforces the principle that the burden of proof remains on the plaintiff to establish all essential elements of a delictual claim, including negligence, and that a plaintiff cannot rely on the defendant's case to fill evidentiary gaps that the plaintiff should have addressed through proper preparation and expert evidence.