Jan Fredrick Kotze v Wayne Parham and Credfin (Private) Limited

The plaintiff, Jan Fredrick Kotze, instituted an action against the defendants on 14 October 2014 for restitution of US$149,000.00. The plaintiff claimed he entered into an agreement with the second defendant (Credfin (Private) Limited), or alternatively with the first defendant (Wayne Parham), whereby he deposited US$149,000.00 to be held in trust and repayable on demand. It was common cause that on 28 October 2011, the plaintiff paid US$149,000.00 to the first defendant. The plaintiff testified that the payment arose in the context of his intended purchase of a farm from Daniel Hartman. He was requested to pay US$150,000.00 as a commitment fee but was uncomfortable paying the seller's lawyer or estate agent. The estate agent, Adele Rowe, referred him to the first defendant. The plaintiff met the first defendant at the second defendant's offices at 9 Birchenough Road, Alexandra Park, and handed over the funds. The first defendant issued an acknowledgement of receipt (Exhibit 1) which did not mention the second defendant. The plaintiff testified that the sale did not proceed as the farm was compulsorily acquired by the State, and he demanded repayment but the defendants refused. The first defendant pleaded that he acted as an escrow agent to transmit funds from the plaintiff to Mr Hartman and that he faithfully remitted the entire sum to Mr Hartman. The second defendant denied being a party to any agreement with the plaintiff.

• Whether the plaintiff established a prima facie case against the defendants for absolution from the instance to be refused
• Whether there was a contractual relationship between the plaintiff and the second defendant
• Whether there was a contractual relationship between the plaintiff and the first defendant
• Whether the first defendant acted as agent for the second defendant
• Whether the plaintiff proved the essential elements of his claim for restitution based on breach of contract and/or unjust enrichment
• What is the appropriate test to be applied in an application for absolution from the instance at the close of the plaintiff's case

1. The second defendant's application for absolution from the instance is granted with costs. 2. The first defendant's application for absolution from the instance is dismissed, and the costs thereof shall be in the cause.

In an application for absolution from the instance at the close of the plaintiff's case, the test is whether there is evidence upon which a court acting reasonably could or might (not should or ought to) find for the plaintiff - meaning whether the plaintiff has made out a prima facie case by adducing evidence to prove all essential elements of the claim. The court must be extremely cautious and should not evaluate and reject the plaintiff's evidence at this stage, but must assume (absent very special considerations such as inherent unacceptability) that the evidence is true. Where a defendant raises a special defence peculiarly within his knowledge and the plaintiff has made out some case to answer, the plaintiff should not be deprived of his remedy without first hearing what the defendant has to say. A defendant who bears the onus of proving a special defence should not be permitted to shelter behind the procedure of absolution from the instance. To establish corporate liability or agency, a plaintiff must adduce concrete evidence showing the company's involvement, receipt of funds, or authorization of an individual's actions - mere presence at corporate premises is insufficient. Where facts are admitted, no evidence is required to prove them, and a party cannot lead evidence to contradict admissions made without leave of court.

DEMBURE J made several observations: (1) While the plaintiff's declaration was not elegantly drafted and failed to disclose the underlying contract of sale background, this failure per se should not be the basis to discard his evidence at this stage as the declaration still captured the underlying contractual foundation of the claim. (2) The mere fact that the plaintiff withdrew a previous case (HC 7401/13) is not conclusive and cannot be used to determine that the plaintiff failed to establish a prima facie case - a tactical withdrawal is permissible and such matters can only properly be assessed on probabilities once all parties have led evidence. (3) Rules of procedure are made to ensure justice is done between parties, and courts should not allow rules of procedure to be used to cause an injustice. (4) The court declined to award punitive costs at the interlocutory stage, noting it would be prudent to reserve the question of appropriate scale of costs until the end of trial when it can be assessed vis-à-vis the merits of each party's case. (5) Bald and unsubstantiated allegations do not establish a litigant's position - parties are expected to argue their cases to persuade the court and not make unsubstantiated averments leaving it to the court to make of them what it can.

This case reinforces the settled principles governing applications for absolution from the instance in Zimbabwean civil procedure. It demonstrates the cautious approach courts must adopt when considering such applications at the close of the plaintiff's case, particularly where the defendant raises a special defence peculiarly within his knowledge. The judgment emphasizes that the court should not assess probabilities or reject a plaintiff's evidence at this interlocutory stage unless there are very special circumstances making the evidence inherently unacceptable. The case also clarifies the evidentiary burden on a plaintiff seeking to establish corporate liability and agency relationships - mere presence at corporate premises is insufficient; there must be concrete evidence of the company's involvement or authorization of the individual's actions. The judgment reinforces the principle that defendants who raise special defences (confess and avoid) bear the onus of proving those defences and should not be permitted to shelter behind absolution procedures to avoid testifying.