Mining Industry Pension Fund v DAB Marketing (Private) Limited

The respondent company leased premises from the appellant to manufacture registered medicines, cosmetics, toiletries, food products and confectionary. From 2000, the roof developed leaks after the appellant replaced guttering. The leaks progressively worsened, spreading from the boardroom to the factory and administration block. By February 2007, leaks affected the warehouse, raw materials store and packaging areas. By October 2007, leaks extended to manufacturing areas including drug mixture manufacturing and tableting areas. In December 2008, the respondent stopped manufacturing medicines due to the leaks rendering sterile areas unsuitable. It continued food and confectionary processing until July 2009. In March 2010, the appellant sued for US$58,021.94 in arrear rentals (later amended to US$72,221.94), cancellation of the lease, ejectment and holding over damages. The respondent admitted the debt in full in its plea but counterclaimed US$196,250 (later reduced to US$170,000) for lost profits due to the appellant's failure to repair the roof. The respondent voluntarily vacated the premises in 2010.

• Whether a defendant who has formally admitted liability in full in pleadings can be absolved from the instance based on insufficient proof of the claim
• The effect and binding nature of formal admissions made in pleadings under section 36 of the Civil Evidence Act
• Whether a court can go behind an admission made on the pleadings without the admission being formally withdrawn
• Whether evidence to disprove an admitted fact is competent and admissible without withdrawal of the admission
• The proper method of proving damages for lost profit following breach of contract
• Whether damages for lost profit must be proved by evidence or can be assessed as general damages

1. The main appeal is allowed with costs. 2. Paragraph 1 of the High Court order is set aside and substituted with: "Judgment is entered for the plaintiff and against the defendant in the sum of US$72,221.94 together with interest thereon at the prescribed rate reckoned from 1 March 2010 to date of payment in full". 3. The cross-appeal is dismissed with costs.

1. A formal admission made in pleadings is binding and conclusive unless withdrawn with leave of court. 2. Under section 36(3) and (4) of the Civil Evidence Act, it is not necessary to prove any fact admitted on the record, and it is not competent for a party to disprove any fact admitted without first withdrawing the admission. 3. Evidence led to disprove an admitted fact without withdrawal of the admission is incompetent and inadmissible. 4. A court cannot impose an onus of proof where a fact has been formally admitted in pleadings. 5. Absolution from the instance is not competent where liability has been admitted in full, as the party bearing the onus has already established its case through the admission. 6. Damages for lost profit following breach of contract must be proved by evidence and cannot be presumed. They must be capable of arithmetical calculation and cannot be assessed by the court from nothing. 7. Evidence of total cost of lost production does not prove lost profit; evidence of actual profit margins prior to breach is required.

The Court noted the obiter dictum in Canaric N.O. v Shevil's Garage 1932 TPD 196 where Greenberg J suggested a court may go behind an admission where after full investigation it is clear the admission is contrary to facts and injustice would result from adherence to it. Justice Makarau declined to decide whether this correctly reflects Zimbabwean law but noted the criteria were not satisfied in this case. The Court observed that the appellant appeared to have abandoned claims for cancellation of the lease and holding over damages as these were omitted from the notice of appeal, possibly because the respondent had voluntarily vacated the premises. The Court also noted, somewhat generously, that the trial court's decision to grant absolution from the instance on the counterclaim was generous to the respondent given its failure to properly prove damages.

This case is significant in Zimbabwean (and relevant to South African) civil procedure and evidence law as it authoritatively confirms the binding nature of formal admissions in pleadings. It reinforces the principle that section 36 of the Civil Evidence Act makes formal admissions conclusive and prevents parties from leading evidence to disprove admitted facts without first withdrawing the admission with leave of court. The judgment emphasizes that admissions operate to curtail proceedings by relieving the other party of the burden of proof on admitted matters. The case also provides important guidance on proving damages for lost profits, clarifying that such damages must be proved by evidence capable of arithmetical calculation rather than general estimates of lost production costs. It serves as a warning against attempting to resile from clear admissions through procedural irregularities or afterthought submissions.