Machine Tool Maintenance (Pvt) Ltd v Pilestone Engineering (Pvt) Ltd

The plaintiff and defendant entered into a landlord-tenant relationship involving twin factory premises and heavy-duty machinery. Four lease agreements were executed (two for premises dated 1 February 1999, two for machinery dated 10 June 1999), all containing options for the defendant to purchase. The defendant defaulted on rental payments. The plaintiff obtained an eviction order in HC 4817/02 (granted in default on 17 February 2003) and the defendant was evicted in September 2003. The machinery remained locked in the premises along with the defendant's own equipment. The defendant brought an urgent application (HC 8827/03) for access to its equipment, and the plaintiff counter-claimed (HC 8915/03) asserting a lien for outstanding rentals. CHINHENGO J issued a provisional order allowing the defendant to remove its equipment but ordered the disputed machinery to remain in the plaintiff's custody pending determination of HC 8916/03. By the time of trial in January 2014 (13 years after litigation commenced), significant changes had occurred: the plaintiff's original principal (Mrs Shirley Valerie Trelc) had died, a new director (Herman Matanda) had acquired the company, Zimbabwe changed currencies, and various potential witnesses died, became ill, or relocated. The plaintiff claimed outstanding rentals and confirmation of cancellation of the sale agreements. The defendant counter-claimed ownership of the machinery, alleging it had exercised the options and paid in full on a rent-to-buy basis.

• Whether the plaintiff established a prima facie case of breach of the lease and rent-to-buy agreements by the defendant
• Whether hearsay evidence tendered through a director who was not present during the relevant events constituted admissible first-hand hearsay under section 27 of the Civil Evidence Act
• Whether copies of documents in a file could be admitted under sections 11 and 14 of the Civil Evidence Act
• Whether absolution from the instance should be granted at the close of the plaintiff's case
• The test for absolution from the instance in civil proceedings

Application for absolution from the instance dismissed. Costs to be costs in the cause. Trial ordered to resume on dates to be agreed upon by the parties in consultation with the registrar.

The binding legal principles established are: (1) For hearsay evidence to be admissible as first-hand hearsay under section 27 of the Civil Evidence Act, the witness must have seen, heard or otherwise perceived the statement being made, and the statement must have been made when the facts were or may reasonably be supposed to have been fresh in the mind of the person who made it. (2) A witness who merely produces a file of documents compiled by others, without personal knowledge of their making or accuracy, cannot provide admissible first-hand hearsay evidence. (3) Copies of documents are only admissible under section 11 of the Civil Evidence Act if all parties consent or the court is satisfied that specific conditions regarding the original are met (destruction, loss, possession by non-producing party, etc.). (4) Business records under section 14 of the Civil Evidence Act must be documents made in the ordinary course of business or for normal business purposes; documents relating to the disposal or sale of the business itself do not qualify. (5) The test for absolution from the instance is whether there is evidence upon which a court, applying its mind reasonably, could or might (not should or ought to) find for the plaintiff - this requires establishment of a prima facie case with evidence relating to all elements of the claim. (6) Even where a plaintiff fails to establish a prima facie case, absolution from the instance may be refused if the defendant's counter-claim or pleadings necessitate that the trial proceed on the same issues. (7) A juristic person may be represented by any authorized representative in litigation, regardless of whether that representative had personal knowledge of the events in question.

The court made several non-binding observations: (1) Courts should be extremely chary of granting absolution at the close of the plaintiff's case and should lean in favor of the trial proceeding in cases of doubt. (2) Judges are very loath to decide questions of fact without hearing all the evidence. (3) At the absolution stage, the plaintiff's evidence must be assumed to be true unless very special circumstances exist, such as the inherent unacceptability of the evidence adduced. (4) A company is described as having "no body to kick and no soul to damn" and therefore can only act through natural persons. (5) Absolution from the instance (as distinct from absolution from the action) enables the plaintiff to take fresh proceedings without exposing himself to a plea of lis finite. (6) The court noted the significant delays in the case (13 years from commencement to trial) and the various changes that had occurred during that time, including death of witnesses, currency changes, and change of ownership, highlighting the practical difficulties in managing long-delayed litigation. (7) The court observed that absolution from the instance is not designed to shield someone from taking the witness stand when they have pleaded confessed and avoided.

This case is significant in Zimbabwean civil procedure and evidence law for several reasons: (1) it clarifies the scope and limits of section 27 of the Civil Evidence Act regarding first-hand hearsay evidence, particularly the requirements that the witness saw, heard or perceived the statement being made and that the statement was made when facts were fresh in the maker's mind; (2) it demonstrates the strict requirements for admissibility of copies of documents under section 11 and business records under section 14 of the Civil Evidence Act; (3) it reaffirms the principle that a juristic person (company) may be represented by any authorized representative regardless of their personal knowledge of the events in question; (4) it applies and explains the well-established test for absolution from the instance, emphasizing that courts should be extremely chary of granting absolution and should lean in favor of allowing trials to proceed in cases of doubt; (5) it illustrates that absolution may be refused even where the plaintiff fails to establish a prima facie case if the defendant's own pleadings or counter-claim require the trial to proceed on the same issues; (6) it demonstrates judicial pragmatism in managing long-delayed litigation where circumstances have changed dramatically over time.