The Sunday Mail
YOUR knowledge of procedural law will help you have an appreciation of processes involved in the enforcement of your rights as an individual or as a corporate.
Depending on your line of business, you may usually have to go through trials before the High Court.
It becomes key to understand some of the procedures involved.
We shall look at some of them in future articles, and simplify them.
You may also need to invest in basic paralegal training so that you have a basic understanding of some of the processes involved.
The principle of law is that he who alleges has the onus to prove.
This means, if you are suing, as a plaintiff, there is an obligation on your part to bring out your case during the presentation of your evidence-in-chief in a trial.
In application proceedings, your case has to be set out and established on papers.
It is not the duty of the other party to prove your case.
In the case of a trial, if you fail to demonstrate a prima facie case during your evidence-in-chief, the other party can apply to the court when you close your case for absolution from the instance.
This is the equivalent of an application for discharge at the close of a State’s case in criminal courts.
This week, we are going to look at “absolution from the instance”, which is what applies in civil courts.
What does it entail and in what instances can this relief be granted?
Reinstitute the action
Absolution from the instance means the plaintiff has not proved a case against the defendant, and it is to be distinguished from a positive finding that no claim exists against the defendant.
Where a defendant has been absolved from the instance, the plaintiff may reinstitute the action, provided that it has not been prescribed.
The rationale behind absolving a defendant from the instance is that, due to the insufficiency of the plaintiff’s evidence and failure to establish an essential element of its claim, the defendant should be spared the trouble and expense of continuing to mount a defence to a hopeless claim.
[MC Plumbing (Pvt) Ltd v Hualong Construction (Pvt) Ltd].
The law to be applied in an application for absolution from the instance is well settled within our jurisdiction.
A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.
[See: United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)]
See also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H).
The test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff.
This implies that the plaintiff has to make a prima facie case in the sense that there is evidence relating to all elements of the claim. [Gordon Lloyd Page & amp; Associates and Rireira & amp; Another 2001 (1) SA 88 (SCA) at 92 E-93 A]
Prima facie case
Absolution from the instance is, thus, granted by the court when an application has been made by a defendant at the close of a plaintiff’s case in which he or she fails to prove a prima facie case.
In granting the application for absolution from the instance, the court has to be guided by the question of whether or not the plaintiff made out a prima facie case against the defendant on the basis of which the court could or might have found for the plaintiff.
Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue, with the burden of proving lying on the party giving that evidence.
In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges its onus. (Fillieks and Others v S [2014] ZAWHC 34).
A prima facie case also means there is evidence relating to all elements of the claim to survive absolution because, without such evidence, no court could find for the plaintiff.
In the case of Professor Charles Nherera v Jayesh Shah SC 51/19, GARWE JA, as he then was, quoted the case of Supreme Service Station 1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1, in which BEADLE CJ highlighted some of the considerations that a court, faced with an application for absolution from the instance, ought to bear in mind.
He pointed out that the court should always take into account that the defendant has not yet given evidence or been cross-examined.
Thus, the court should not dismiss the plaintiff’s evidence unless it is glaringly incredible.
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practising law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about employment law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara) or WhatsApp him on +263780055152 or email attorneyarthurmarara@gmail. com
