Wilming Properties & Investments (Private) Limited v Kendros Mugabe

The plaintiff company, represented by its director Andrew Wadi, claimed payment of US$63,860 plus interest from the defendant, alleging that the defendant was employed as manager of a housing compound known as BD Compound or BD Village. The plaintiff alleged the defendant collected rentals from tenants but failed to remit them to the plaintiff. The defendant denied being an employee, asserting instead that he and the plaintiff jointly purchased the houses from the previous owner, Trillion Zimbabwe, and that the agreement of sale recorded the plaintiff as purchaser for convenience as Andrew Wadi was a councillor for the area. The plaintiff produced various documents including cheques, a memorandum of agreement (Exhibit 8), and an agreement of sale for Z$1. At the close of the plaintiff's case, having led evidence from Andrew Wadi and Collin Clark Annandale, the defendant applied for absolution from the instance.

• Whether the plaintiff established a prima facie case that the defendant was its employee
• Whether there was sufficient evidence that the defendant collected rentals amounting to US$63,860
• Whether the plaintiff proved that it purchased the compound and employed the defendant as manager
• Whether absolution from the instance should be granted at the close of the plaintiff's case
• Whether costs should be awarded on an attorney-client scale

Absolution from the instance was granted. The plaintiff was ordered to pay the defendant's costs on an attorney-client scale.

In an application for absolution from the instance at the close of the plaintiff's case, the test is whether there is sufficient evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. Where the plaintiff's own documentary evidence fundamentally contradicts the basis of its pleaded claim, and no prima facie evidence has been led to establish the essential elements of the cause of action, absolution from the instance must be granted. A plaintiff cannot succeed by attempting to substitute an alternative legal basis (such as partnership) for the claim when the pleaded basis (employment relationship) has not been proved and differs materially from what was claimed.

The court noted that given the summary and extraordinary nature of absolution from the instance, courts will, where possible, lean in favour of continuing the case and hearing the defendant's evidence rather than dismissing the plaintiff's claim. The court observed that the arrangement regarding the compound appeared to have been disguised as a sale when in reality it was not a genuine purchase, as a compound with 91 houses and a beer hall could not realistically be sold for one dollar. The property appeared to have been abandoned by its owners and given to the plaintiff, defendant, and Lovemore Ngulube to manage and collect rentals. The court commented that it was always clear to all involved that this was not a genuine sale.

This case is significant in Zimbabwean civil procedure for its application of the test for absolution from the instance. It demonstrates that a plaintiff must establish a prima facie case based on the pleadings and cannot shift to an alternative legal basis (such as partnership) when the original claim (employment) fails. The case also illustrates the court's willingness to award attorney-client costs where a party brings a claim that is fundamentally contradicted by its own documentary evidence, effectively pursuing litigation on a false basis. The judgment reinforces the principle that courts will lean towards continuing cases where possible, but will grant absolution where no reasonable court could find for the plaintiff on the evidence presented.