The plaintiff, Mr. Meron Matewere, sued the defendant (First Transfer Secretaries (Pvt) Ltd) by summons issued on 20 July 2020, claiming delivery of 77,235 Class "A" Econet Wireless shares or payment of their equivalent value. The plaintiff acquired these shares during his employment with Econet Wireless (Pvt) Ltd, governed by a Deed of Settlement which stipulated the shares could not be dealt with for 24 months without his authority. The plaintiff alleged the defendant, as share transfer secretaries, improperly facilitated the sale/transfer of his shares without proper authorization in 2017, under a "buy-back" scheme involving Econet Wireless Zimbabwe Ltd (a different entity from his employer). The defendant raised special defences of prescription and res judicata, noting that the plaintiff had previously litigated the same shares in HC 10299/18, which was dismissed by CHITAKUNYE J in HH 585/19 (upheld on appeal). That prior judgment found the plaintiff had himself authorized the share sale via email, received proceeds by June 2017, and acted dishonestly in claiming otherwise. After the plaintiff closed his case as sole witness, the defendant applied for absolution from the instance.
1. The defendant's application for absolution from the instance is dismissed. 2. Costs shall be in the cause. 3. The trial shall proceed, with the defendant to present its evidence on the remaining issues.
A defendant cannot obtain absolution from the instance at the close of the plaintiff's case on issues where the defendant bears the onus of proof. Where special defences such as res judicata and prescription are raised, and the defendant bears the burden of proving those defences, the defendant must adduce evidence on those issues in accordance with Rule 56(8) and (9) of the High Court Rules 2021. An application for absolution is not competent in such circumstances. Furthermore, at the absolution stage, the test is whether the plaintiff's evidence, if believed and given the benefit of reasonable inferences, is such that a reasonable court might find for the plaintiff. Where triable issues exist regarding the applicability of res judicata (including questions of party identity and whether new issues of fraud were raised) and prescription (including when the plaintiff acquired knowledge of the claim due to alleged concealment), absolution should be refused to allow full ventilation of the evidence and determination on the merits.
The Court observed that even if the application had been procedurally proper, fundamental fairness suggests that matters heavily relying on facts outside the plaintiff's testimony (such as prior judgments and dates) should be brought in properly through defence evidence rather than merely via argument. The Court noted that granting absolution on special pleas does not provide the same closure as a full judgment on the merits and might leave lingering arguments. It is generally more prudent to resolve cases on merit whenever possible, especially when factual disputes exist. The Court also commented that a determination branding a litigant's conduct as vexatious (warranting punitive costs) is better made with a full record after hearing all evidence, rather than at an interim stage. The Court expressed serious doubts about the plaintiff's credibility given the prior adverse findings in HH 585/19, but noted that credibility determinations should await the completion of evidence. While the plaintiff's case was "hanging by a thread," it had not "snapped entirely" and there remained evidence that could, however improbably, support relief.
This case is significant for clarifying the proper application of absolution from the instance in Zimbabwean civil procedure, particularly where special defences are raised. It establishes that a defendant cannot obtain absolution from the instance at the close of the plaintiff's case on issues where the defendant bears the onus of proof. This reinforces the proper allocation of evidential burdens under the High Court Rules 2021 (Rules 56(8) and (9)) and prevents strategic manipulation of trial procedure. The judgment also provides important guidance on when res judicata and prescription defences should be determined - preferably after full ventilation of evidence rather than summarily. It illustrates the cautious approach courts should take with issue estoppel where new allegations (such as fraud) are raised and different parties are involved, and confirms that alleged fraud or concealment may delay the running of prescription under Section 16(3) of the Prescription Act, creating triable factual issues that preclude summary dismissal.