The plaintiff company sued the defendant, a former employee, for US$324,319.08 based on alleged negligence in the performance of his duties. The plaintiff claimed the defendant was employed as finance manager and later appointed as a director, working for 18 years until his dismissal in 2013. The plaintiff alleged negligence in several respects: (1) duplication of import tax claims for certain bills of entry amounting to US$66,418.12 and US$61,168.47; (2) keeping employee benefits outside the payroll resulting in under-declaration of PAYE by US$63,019.97; (3) income tax violations against taxable income totaling US$84,653.66; and (4) other tax violations resulting in ZIMRA penalties of US$27,275.04. The defendant denied being finance manager, asserting he was only an accounts clerk. At the close of the plaintiff's case, the defendant applied for absolution from the instance under Rule 56(6) of the High Court Rules 2021.
1. Absolution from the instance was granted. 2. The plaintiff was ordered to pay the defendant's costs.
At the close of a plaintiff's case in a civil trial, absolution from the instance will be granted where the plaintiff has failed to adduce sufficient evidence to establish a prima facie case. The test is whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff. A plaintiff must produce primary evidence (such as employment contracts) to prove essential elements of their claim rather than relying on indirect or circumstantial evidence. In a delictual claim based on negligence in employment duties, the plaintiff must prove the nature of the employment relationship and specific duties allegedly breached. Where a plaintiff claims breach of fiduciary duty by one director, failure to explain why other directors are not similarly sued undermines the case. Payment of self-assessed tax obligations not demanded by revenue authorities cannot found a claim in delict for negligence against an employee.
Chinamora J observed that courts must act cautiously in applications for absolution from the instance, and when in doubt should lean on the side of caution and allow matters to proceed, as both sides should ordinarily be heard before a decision is made. The court noted it is "most disheartening when a legal practitioner fails to abide by a direction given by the court or a judge" regarding the late filing of submissions, but condoned the failure in the interests of justice where no prejudice was shown. The judge observed that non-executive director status does not absolve directors of their obligations to conduct themselves in utmost good faith, citing Howard v Herrigel. The court commented that the plaintiff's answer that other directors were non-executive was "disingenuous" given established case law on non-executive directors' duties.
This case reinforces important principles in Zimbabwean civil procedure regarding absolution from the instance applications. It emphasizes: (1) the importance of producing primary evidence (such as contracts) rather than relying on indirect or secondary evidence; (2) the principle that he who alleges must prove, particularly in delictual claims; (3) that courts must carefully scrutinize whether a plaintiff has established a prima facie case before requiring a defendant to present a defense; (4) the settled test that absolution should be granted where there is no evidence upon which a court might reasonably find for the plaintiff; and (5) that claims based on self-assessed tax obligations (not demanded by revenue authorities) cannot found a delictual claim for negligence. The case demonstrates judicial restraint in preventing abuse of process where plaintiffs fail to discharge their evidential burden.