Engelbert Mudzimba v Ben Muchenje and BMJ Engineering (Pvt) Limited

In May 2019, the plaintiff and defendants entered into an oral agreement for the construction of two specialised chicken fowl runs at a plot in Chegutu according to Sable Chickens (Pvt) Ltd specifications. The fowl runs were to measure 600 square metres each on a fix and supply basis for USD 45,000. The plaintiff paid the defendants USD 50,000 borrowed at 7% per month bank rate. The defendants constructed the fowl runs but the plaintiff alleged poor workmanship rendering them uninhabitable for chicken rearing. The roof was blown away in February 2020 and again in August 2020 due to rains. An independent report by Engineer Chirume concluded there was poor workmanship. The defendants denied poor workmanship and claimed the plaintiff ran out of funds after construction was completed in December 2019, and the site was abandoned and fell victim to vandalism and theft. The defendants offered to refund ZWD 45,000 on a 1:1 basis. At the close of the plaintiff's case, the defendants applied for absolution from the instance.

• Whether the plaintiff established a prima facie case of breach of contract
• Whether absolution from the instance should be granted at the close of the plaintiff's case
• What is the appropriate test for granting absolution from the instance
• Whether the plaintiff proved all essential elements of his claim including existence of contract, breach, and damages

1. The application for absolution from the instance is dismissed. 2. The defendants shall pay costs jointly and severally, one paying the other to be absolved. 3. The trial shall resume on a date to be allocated.

At the close of a plaintiff's case, absolution from the instance should only be granted if there is no evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff. The test is not whether the evidence establishes what will finally have to be established, but whether there is evidence relating to all essential elements of the claim. A prima facie case exists where: (1) the existence of a contract is not denied; (2) the plaintiff has set out the terms of the contract; (3) there is evidence of breach (including independent expert evidence); and (4) damages are claimed, even if the quantum is disputed. Courts should assume that in the absence of special considerations such as inherent unacceptability of evidence, the plaintiff's evidence is true, and should not evaluate and reject evidence at this stage. Absolution applications should be granted sparingly as they potentially infringe on constitutional rights to equality and fair hearing under sections 56(1) and 69 of the 2013 Constitution of Zimbabwe.

The court observed that offers to settle not made on a without prejudice basis may be considered and the party making such an offer in the face of denial of liability must explain why such offer was made. The court also noted that the question of how much should be refunded is a matter to be established after hearing all evidence at trial. The court commended both legal practitioners for their thorough analysis of both the facts and the law. The court emphasized that courts should be extremely wary of granting absolution at the close of the plaintiff's case and should not at this stage evaluate and reject the plaintiff's evidence. The court noted that the standard of proof at this stage is the less onerous one of a prima facie case.

This case reinforces the established principle in Zimbabwean civil procedure that absolution from the instance at the close of a plaintiff's case should be granted sparingly. It demonstrates the application of the Claude Neon Lights test and emphasizes that courts must be extremely wary of granting absolution as it potentially infringes on constitutional rights to fair hearing and equality. The case is significant for construction dispute litigation as it shows that where an oral contract is not denied, payments are proven, and independent expert evidence supports the plaintiff's case, a prima facie case is established even if details of quantum remain to be determined. The judgment also highlights that offers to settle made not on a without prejudice basis can be considered as evidence supporting the plaintiff's case.