Tapera Jeffrey Muzira and Monica Muzira v Michael Frank Gboun

The plaintiffs (husband and wife) and the defendant entered into a lease agreement on 1 August 2013 for a property at No. 779 Glen Garry Avenue, Highlands, Harare. The monthly rental was US$3,500.00, and the defendant paid a deposit of US$7,000.00 upon occupation. The defendant occupied the property for approximately 19 months. At the time of vacation, the defendant had outstanding rentals. The plaintiffs claimed the defendant caused damages to the property including the swimming pool and borehole pump, and that they carried out repair work totaling US$14,422.68. They also claimed outstanding rentals for May, June and July 2014 totaling US$4,235.00. The defendant denied causing damages beyond acceptable wear and tear, admitted not paying June rental but claimed he made tender for payment from the deposit held by plaintiffs. At the close of the plaintiffs' case, the defendant applied for absolution from the instance.

• Whether there was sufficient evidence upon which a reasonable court might find for the plaintiffs
• Whether the plaintiffs established a prima facie case proving all essential elements of their claim
• The test to be applied when considering an application for absolution from the instance at the close of the plaintiff's case
• Whether absolution could be granted in respect of some claims while putting the defendant to his defence on others

The application for absolution from the instance at the close of the plaintiffs' case was dismissed. The defendant was put to his defence on the claims where the plaintiffs established a prima facie case.

At the close of the plaintiff's case in an application for absolution from the instance, the test is whether there is evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff - i.e., whether the plaintiff has made out a prima facie case. An application for absolution from the instance stands on the same footing as an application for discharge at the end of the state case in criminal matters - absolution may be granted on separate claims where there is insufficient evidence while being refused on other claims where a prima facie case is established. At the absolution stage, the court need not concern itself with the credibility of the plaintiff's evidence unless it is demonstrably clear that witnesses were palpably broken down under cross-examination.

The court noted that some degree of truth had been demonstrated in the plaintiffs' case based on the evidence led and admissions made by the defendant. The court observed that the evidence and admissions clearly showed the plaintiffs expended some amounts of money on repairs and were still owed rentals despite holding a deposit, making the application for absolution "misplaced and unnecessary." The court also noted, without deciding, that there was no inventory or hand-over/take-over documents showing the state of the property before and after the lease.

This case illustrates the proper application of the test for absolution from the instance in Zimbabwean civil procedure, following well-established South African precedents. It demonstrates that absolution can be granted partially on separate claims where evidence is insufficient, while refusing it on other claims where a prima facie case exists. The case also clarifies that at the absolution stage, courts need not concern themselves with credibility of evidence unless witnesses are demonstrably broken down under cross-examination. The judgment reinforces that the test is whether there is evidence upon which a court might reasonably find for the plaintiff, not whether the evidence establishes what would finally be required.