Helen Judith Johnstone v Brian Murphy and Others

The plaintiff, Helen Judith Johnstone, was the sole beneficiary of her late husband's estate (DR 2579/17), which included immovable property sold for US$135,000 and a motor vehicle sold for US$2,000. After expenses, approximately US$105,650 was available to her. Residing outside Zimbabwe (in the United Kingdom), she entrusted the first defendant, Brian Murphy, with handling these funds, allegedly instructing him to preserve their value in foreign currency, remit them to her foreign bank account, or place them in a blocked funds arrangement with the Reserve Bank of Zimbabwe. The plaintiff claimed the defendant held himself out as having expertise in foreign currency remittances, estate administration, and exchange control processes. However, the funds were allegedly converted into local currency (bond notes, then RTGS, then ZWL) by operation of Zimbabwean law, particularly Exchange Control Directive RT120/18 and Statutory Instrument 33 of 2019, which re-denominated US dollar balances to RTGS at a 1:1 rate. This resulted in significant devaluation. The plaintiff sued for damages arising from professional negligence, alleging the defendant failed to follow instructions to preserve the funds' foreign currency value. At the close of the plaintiff's case, the defendant applied for absolution from the instance.

• Whether the plaintiff established a prima facie case of professional negligence against the defendant
• Whether the defendant owed the plaintiff a professional duty of care
• Whether there was evidence of breach of the standard of care required
• Whether there was evidence of causation linking any alleged breach to the plaintiff's financial loss
• Whether the application for absolution from the instance should be granted at the close of the plaintiff's case

1. The defendant's application for absolution from the instance is granted. 2. The plaintiff's claim is dismissed. 3. The plaintiff shall bear the costs of suit.

At the close of the plaintiff's case, absolution from the instance must be granted if there is no evidence upon which a reasonable court might find for the plaintiff. In professional negligence claims, the plaintiff must establish: (1) the existence of a professional duty of care; (2) the standard of care required; (3) breach of that duty; and (4) causation linking the breach to the loss. Absent clear evidence of a formal professional relationship, specific instructions, a defined standard of care, and proof that the defendant's breach (rather than intervening legislative acts) caused the loss, a prima facie case is not established. Where the primary cause of loss is a statutory re-denomination of currency mandated by law and beyond the defendant's control, and where the plaintiff has not proven that the defendant had a clear, feasible legal pathway to prevent the loss but negligently failed to pursue it, the claim for professional negligence cannot succeed.

The court made comparative observations on the absolution doctrine in other jurisdictions, noting that South African, United Kingdom, and United States law all recognize similar principles: defendants should not be put to their defence if the plaintiff's evidence is insufficient to sustain a claim. The court referenced Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88 (SCA) from South Africa, Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 from the UK, and Rule 50 of the US Federal Rules of Civil Procedure, observing that all echo the foundational principle that a defendant must be spared the burden of defence if the plaintiff's evidence, taken at its highest, cannot sustain a verdict in the plaintiff's favour. The court also noted that while hopes and expectations may exist in informal relationships, they do not suffice for a legal claim in negligence where specific duty and clear breach cannot be established. The judgment emphasized that one cannot impose liability on a defendant for failing to circumvent or outrun legislative changes, particularly where such laws are strictly enforced by central bank policy.

This case is significant in Zimbabwean civil procedure as it reinforces the strict application of the absolution from the instance test at the close of a plaintiff's case. It emphasizes that in professional negligence claims, a plaintiff must adduce concrete evidence of: (1) the existence and nature of a professional duty of care; (2) the applicable standard of care; (3) breach of that standard; and (4) causation linking the breach to the loss. The judgment demonstrates that vague or informal arrangements, hopes, or expectations are insufficient to establish professional negligence. It also illustrates that where losses result primarily from legislative or policy changes beyond a defendant's control (such as currency re-denomination by statute), a plaintiff must prove that the defendant had a clear, feasible legal pathway to avoid the loss but negligently failed to pursue it. The case serves as a reminder that absolution protects defendants from defending claims that cannot, on the plaintiff's own evidence, succeed, thereby promoting judicial economy and fairness in civil litigation.