On 6 July 2011, the plaintiff (Freddy Makuvise) was given a written mandate by the first defendant to sell the first defendant's Mambo Mine in Kadoma for $600,000 or secure a joint venture partner. The plaintiff was to receive 10% commission of $600,000 (i.e., $60,000) upon introduction of a purchaser or joint venture partner. On 21 September 2012, the plaintiff introduced the second defendant as an investor. A tripartite joint venture agreement was entered into between the defendants with a total investment of $2,400,000 (registered capital of $2,000,000 plus an upfront investment of $400,000). The plaintiff claimed he was entitled to 10% of the total investment sum ($240,000) based on alleged subsequent verbal agreements, while the defendants argued he was only entitled to $60,000 as per the written mandate. The defendants offered to pay $60,000 but disputed the further claim. At the close of the plaintiff's case, both defendants applied for absolution from the instance.
The application for absolution from the instance by both defendants was dismissed. The matter was ordered to proceed to the defence case.
In an application for absolution from the instance, the plaintiff must make out a prima facie case by adducing evidence relating to all elements of the claim. There must be evidence upon which a reasonable court could or might find for the plaintiff. Where a plaintiff alleges both written and subsequent verbal agreements as the basis for his claim, and provides evidence of both, a prima facie case is established even if the written agreement appears to contradict the plaintiff's interpretation, as the credibility and weight of such evidence are matters for determination after hearing the full case.
The court observed that according to the clear terms of the written mandate, the plaintiff would be entitled to commission of 10% of $600,000 (i.e., $60,000) regardless of whether a sale or joint venture materialized. The only circumstance in which the plaintiff could earn more than $60,000 would be if the mine was sold at a price higher than $600,000, in which case he would retain the excess above that amount. The court noted that the plaintiff's claim for 10% of $2,400,000 was contrary to the clear terms of the written mandate, though this did not preclude the matter from proceeding to the defence case given the allegations of subsequent verbal agreements.
This case illustrates the application of the prima facie case test in absolution from the instance applications in Zimbabwean civil procedure. It demonstrates that even where documentary evidence appears to contradict a plaintiff's claim, the existence of allegations of subsequent verbal agreements modifying written terms can be sufficient to establish a prima facie case requiring the matter to proceed to the defence case. The case also addresses the interpretation of agency/mandate agreements in commercial transactions and commission calculations in mine sale/investment contexts.