MC PLUMBING (PRIVATE) LIMITED
HUALONG CONSTRUCTION (PRIVATE) LIMITED
HIGH COURT OF ZIMBABWE
HARARE, 15 January 2015 and 4 February 2015
M. Chijara, for the plaintiff
A. Chizikani, for the defendant
CHIGUMBA J: The Plaintiff was a subcontractor to the defendant in respect of plumbing work done on or about May 2011, on a project called the Gushungo Dairy Project. Both Plaintiff and Defendant are companies which are duly registered in accordance with the laws of Zimbabwe. The dispute between the parties relates to:
- The value of the certified work done by plaintiff for the defendant in terms of their contract.
- Whether plaintiff was paid at all by the defendant.
- Whether there is any balance of payment due to the plaintiff from the defendant.
The issue that rose for determination at the close of the plaintiff’s case was whether the plaintiff had adduced enough evidence of the terms of the contract between the parties, to enable a determination to be made as to what the plaintiff was entitled to be paid by the defendant. Plaintiff filed summons on 8 January 2014, claiming payment of USD 119 033-91 from the defendant, for services rendered in terms of a sub-contracting agreement for work done, as well as interest thereon at the prescribed rate, and costs of suit. Plaintiff averred that defendant undertook to pay for all plumbing work done upon receipt of payment from the principal for work specifically completed by the plaintiff. Plaintiff averred further, that, despite being paid in full by the principal for the work done by the plaintiff, defendant made a partial payment and has failed, refused or neglected to pay the balance outstanding.
In its plea, filed of record on 26 February 2014, defendant denied having any knowledge of plaintiff and that any contractual relationship existed between it and the plaintiff. Defendant pleaded to having dealt with one Munyaradzi Chafa in his personal capacity and denied ever dealing with his company, the plaintiff. Defendant averred that it had paid Munyaradzi Chafa in full for all the plumbing work done in the construction of Gushungo Dairy. Defendant filed a counterclaim, a sum of USD 29 603-38 in damages for the alleged malicious concealment of the drainage system by the plaintiff, leading to a leakage and flooding, which had to be rectified by the defendant.
At the hearing of the matter plaintiff led evidence through its managing director, Mr. Munyaradzi Chafa, who said that he has been working as a qualified class 7 plumber for twenty one years, after undergoing training at the Polytechnic. He told the court that the plaintiff and the defendant have a contractual relationship, in terms of which defendant subcontracted plaintiff to do plumbing work, that is, all the piping, drainage, sewer and water reticulation at the factory. Three interim payment certificates dated 14 June 2011, 14 October 2011, and 14 November 2011 were produced in support of the plaintiff’s claim. The first one was addressed to Classic Project Managers, in connection with Gushungo dairy Project, and headed “Plumbing Works I.P.C. number 1 for M & C Plumbers. The witness explained to the court that an I.P.C was an interim payment certificate. On I.P.C. number 1, it was certified that the plaintiff had completed plumbing works to the value of USD$44 333-54. The amount was due for ground floor drainage, and extra drainage work done. Engineer T. Chitakara of ProStruct Consulting Engineers, certified that he had checked and corrected the claim submitted by the plaintiff and recommended payment of the confirmed value of the work done. The I.P.C. included a detailed description of the measured work done by the plaintiff.
The second I.P.C. was dated 14 October 2011, and it was in regards to civil works, ground floor drainage and sewer reticulation. It certified that the amount provisionally payable was USD$43 669-87. It stated that I.P.C number 1 had been incorporated therein, but that the work for ground floor drainage had been done twice because the pipes initially laid had to be changed from those originally used, to stainless steel pipes. The last I.P.C. was dated 14 November 2011, and it was in regards to ground floor drainage and sewerage. It certified that the amount payable was USD$47 376-52, and that this sum excluded water reticulation. The court noted that all the I.P.C’s gave details of the material supplied by the plaintiff, and that they all stated that the plaintiff’s submitted value for the work done had been checked and verified by ProStruct Engineers. The payment certificates all stated that the claim submitted by the plaintiff had been checked and corrected, and recommended a certain sum for payment. The payment certificates also stated that the assistance of the quantity surveyor would be called for, in coming up with the correct figure for final payment.
Mr. Chafa told the court that the total amount due to the plaintiff on the three I.P.C’s was USD$135 000-00. He produced a letter, dated 3 July 2014. It is addressed to Classic project Management, by ProStruct Consulting Enginers, and copied to the plaintiff, and to Messrs Mahachi Gwaze & Partners, the quantity surveyors. ProStruct stated that it had been approached by the plaintiff, who had been a subcontractor of the defendant, and that the total amount paid for all measured civil works at the Gushungo Dairy Project, i.e. roads and storm water, sewer reticulation, water reticulation and external drainage amounted to USD$1 044 954-12 (one million forty four thousand nine hundred and fifty four dollars and twenty four cents) Of that sum, the amount payable to plaintiff for external drainage and sewer reticulation was USD$135 379-94 (one hundred and thirty five thousand three hundred and seventy nine dollars and ninety four cents. A breakdown of the total amount paid to the defendant was given, which showed the sums paid for sewer reticulation, external drainage, water reticulation, bulk earthworks, roads and storm water drains. The sum for water reticulation was subject to certification by the water authority ZINWA, or by the Quantity Surveyor.
The witness told the court that, of the certified USD$135 379-94 due to it, defendant paid USD$59 095-67, leaving a balance outstanding of USD$119 033-91, which is claimed in the summons. Finally, the witness denied being responsible for the alleged malicious concealment of the drainage system and any resultant damages. During cross examination, Mr. Chafa told the court that he had responded to an advertisement flighted by the defendant in a local newspaper, and submitted the winning bid to be defendant’s subcontractor to plumbing works on the Gushungo Dairy project. He denied that he had initially worked for the defendant in a personal capacity, and pointed out that the advertisement had specifically requested that registered companies only should apply for the subcontract. He admitted to being paid allowances by the defendant for odd jobs which he did before the plumbing work started. He said that the project was delayed by five months initially.
Mr. Chafa told the court that his contract with the defendant was to do plumbing and to be paid everything minus five percent. He said that it was a fix and supply contract, and that the agreement was oral. The witness told the court that he had a cordial relationship with the previous management of the defendant and that they operated on trust, and that trouble arose when the last manager of defendant returned to China, and the current manager took over. He denied the allegation of wrongdoing by allegedly conniving with the project engineers to procure certification of the value of the work done by the plaintiff, directly, which was an alleged anomaly due to the fact that payment could only correctly be certified as being due to the main contractor. The court did not formulate the impression that this witness was incredible or that he was misleading it. Although he was a nervous witness and somewhat sarcastic at times, during cross examination, he did not change his testimony. The court believed him.
Plaintiff’s second witness was Mr. Audily Chatora, the project manager of the Gushungo Dairy project. He told the court that his role was to coordinate the functions of the main contractor and to approve and certify payments due to consultants and to the contractors. He said that the process of certification generally is that architects, engineers and quantity surveyors perform certain duties in the certification process. The role of the architect is to confirm that works done are fit and due for payment. The role of the engineer is to inspect, and certify as fit, and due for payment, works done by contractors. The role of quantity surveyors is to qualify and check the engineer’s certificates and produce all encompassing certificates which are sent to the project manager, who checks and concurs or disagrees with the certified value of the work done. The project manager issues an approval certificate, which the client relies on before paying.
The witness confirmed that ProStruct Engineers were the project engineers. He told the court that there was nothing inappropriate about the payment certificated which had been produced by the plaintiff as evidence in support of its claim. The fact that the plaintiff was mentioned by name on the payment certificate did not mean that the plaintiff would be paid directly for the value of the work done. Defendant would be paid directly, and was paid directly, and in full, for the total value of the work done, by plaintiff and any other subcontractors hired by the defendant. Mr. Chatora admitted that he authored the letter of 21 July 2014, addressed to Messrs Lawman Chimuriwo Legal Practitioners. In the letter he stated that Classic Project Managers were not privy to the domestic arrangements between the plaintiff and the defendant. He did however, confirm that the value of the work done by the plaintiff was USD$135 379-94, and that this valuation includes both materials and labour.
The letter also states that any and all materials and plant which were procured and provided by the client on the ground cannot be credited to the plaintiff. Mr. Chatora told the court that the project managers did not have any queries regarding the interim payment certificates, and that the penultimate certificate incorporated what had been certified previously, in the interim certificates. He told the court that he was not privy to the quantum of remedial work allegedly done by the defendant. He confirmed that all the works that needed rectification had been drawn to the attention of the defendant. During cross examination, Mr. Chatora told the court that he had certified the amount of money due to the plaintiff. He said that the I.P.C’s were issued correctly because they were addressed to the project manager, even though it was irregular that they referred to a sub contractor directly and by name. He pointed out that the penultimate certificate number 10, which was admitted into evidence, showed that all payments due were to be paid directly to the defendant, the main contractor, and not to the plaintiff.
The witness stressed that the role of the engineer is to authenticate the work done, to design, monitor, inspect and certify work done, to quantify the work done, and to certify its value. On being asked how the engineer could possibly have known what rate to use in quantifying the work done by the plaintiff, not being privy to the terms of the contract between the plaintiff and the defendant, the witness told the court he was happy with the quantification because there are three levels of price checks, and that the certification of the value of the plaintiff’s works passed all three levels of checks so the project manager found no reason to query it. Finally, Mr. Chatora told the court that if the client had bought any material or supplied any plant and equipment, the value would have been automatically deducted when the I.P.C’s were issued, because their accounting system was designed to be self leveling, that is to deduct value due to the client before a final valuation of work done is certified. The plaintiff’s second witness came across as a poised and confident professional who exhibited useful knowledge about the roles played by the different players to the certification process. The court was grateful to him for the insight that he provided. He did not exhibit bias towards any party.
The plaintiff then closed its case. The defendant then applied for dismissal of the plaintiff’s case, on the basis that the plaintiff’s claim, being based on contract, had not been established because insufficient evidence had been led to establish the terms of the contract, its operation, whether the contract had been breached, the amount due to the plaintiff, what had been paid to the plaintiff and the balance due if any. It was submitted on behalf of the defendant that the question to ask at the close of the plaintiff’s case is whether the plaintiff had established a prima facie case against the defendant. The definition of prima facie, is literally “at first glance”, or “on the face of it”, which means, on initial examination or consideration. It means that the plaintiff’s case must be clear from the first impression, legally sufficient, or sufficient in law to establish a case or a fact, unless disproved. In my view, establishing a case “at first glance” implies that the degree of scrutiny of the evidence adduced by the plaintiff is of a lower standard, at this stage.
Let us turn to the law for guidance on what ought to happen when a defendant applies for discharge, at the close of the plaintiff’s case. It is accepted that after a plaintiff has closed its case, a defendant, before commencing his own case, may apply for dismissal of the plaintiff’s claim. Should the court accede to this application, the judgment will be one of ‘absolution from the instance’. See Herbstein and Van Winsen. A decree of absolution from the instance is derived from Roman Dutch law. It is the appropriate order to make, when, after all the evidence the plaintiff has not discharged the ordinary burden of proof. If at the end of the plaintiff’s case there is insufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution. See LH Hoffman, DT Zeffert.
It has also been said that the term ‘absolution from the instance’ is used to describe the finding that may be made at either of two distinct stages of trial. In both cases it means that the evidence is insufficient for a finding to be made against the defendant. The defendant will be ‘absolved from the instance’ if upon an evaluation of the evidence as a whole, the plaintiff’s burden of proof has not been discharged. See Schwikkard Van Der Merwe. Absolution from the instance means that 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 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 the expense of continuing to mount a defence to a hopeless claim.
In the case of Lourenco v Raja Dry Cleaners & Steam Laundry Private Limited, the Supreme Court had occasion to discuss the various cases which ought to be relied on in determining an application for absolution from the instance. The first case to be referred to be that of Mazibuko v Santam Insurance Co Ltd and Anor 1982 (3) SA 125 (AD) at 133, where the court said, at 132H:
"In an application for absolution made by the defendant at the close of the plaintiff's case the question to which the Court must address itself is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff; in other words whether plaintiff has made out a prima facie case”.
The next case referred to by the Supreme Court is that of Gascoyne v Paul and Hunter 1917 TPD 170 where the court said, at 173:
"The question therefore is, at the close of the case . . . was there a prima facie case against the defendant Hunter; in other words, was there such evidence before the Court upon which a reasonable man might, not should, give judgment against Hunter?”. (my underlining for emphasis).
The Supreme Court then discussed the celebrated case of Supreme Service Station (1969) Private Limited v Goodridge Private Limited as one of the leading cases on the question of when absolution from the instance ought to be granted at the close of the plaintiff’s case, before the defence case is opened. It is trite that the court cannot meru motu consider whether absolution must be granted. It is an option which is available to the defendant, on application. It was held in that case that when an application for absolution from the instance is made at the end of the plaintiff's case the test is: what might a reasonable court do, i.e. is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff; if the application is made after the defendant has closed his case the test is: what ought a reasonable court do. (the emphasis is mine).
The difference in the two tests in my view is in the differing levels of proof required in order to discharge the onus on any party who will have made any allegation, be it in the plaintiff’s claim, or in the defence proffered by the defendant. At the close of the plaintiff’s case, the burden of proof on the plaintiff is to make a prima facie case (on the face of it). The standard of proof is lower (what might the court do- the court may or may not). At the close of the defendant’s case, in my view the standard of proof is higher. Having heard plaintiff and defendant’s evidence, the court must decide what the balance of probabilities favors, it must decide what it ought to do, not what it may or may not do. In deciding what a court may or may not do, there is an implication that the court may make an incorrect decision, because at the close of the plaintiff’s case, it will not have heard all the evidence.
Counsel for the plaintiff referred the court to two recent cases High Court which were instructive, and persuasive. The first case, Nobert Katerere v Standard Chartered Bank Zimbabwe Limited, at page 2, exhorted a court to be
“...chary of granting absolution at the close of the plaintiff’s case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim-Claude neon Lights (SA) Ltd v Daniel 1976 (4) SA 403(A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26(A); Sithole v PG Industries (Pvt) Ltd HB 47-05”.
The second case that counsel for the plaintiff referred the court to was that of Jackson Muguti v Wilson Sunduza .
It has been said that Judges should be loath to decide upon questions of fact without hearing all the evidence on both sides. See Theron v Bher . In the case of United Air Charters v Jarman , a Supreme court case, it was said that the test for determining whether a defendant should be absolved from the instance is now settled in this jurisdiction. The test was set out at page 343 of the judgment, as follows:
“… 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”.
My interpretation of the test to be applied to the question of whether to grant absolution from the instance to a defendant at the close of the plaintiff’s case is as follows:
- The first question to be considered is whether there is any evidence in at the close of the plaintiff’s case, upon which a court, directing its mind reasonably to such evidence could or might find for the plaintiff?
- The second question to be asked is whether there is any special consideration or reason why the court should reject the evidence adduced on behalf of the plaintiff, (for example glaring inconsistencies, or unacceptable variance with the pleadings filed of record)
- The third question that may be asked is whether the plaintiff has failed to adduce any evidence, or adduced insufficient evidence to establish an essential element of its claim.
- Lastly, whether, an overall assessment of all the evidence adduced on behalf of the plaintiff, the pleadings filed of record, the annexures, the exhibits, all the discovered documents, coupled with the viva voce evidence, falls short of establishing the plaintiff’s case, on the face of it (prima facie)
On the question of the discharge of the burden of proof in a civil case, especially in an application for absolution from the instance, see Peter Lewis Bailey NO v Trinity Engineering (Private) Limited, Aguy Clement Georgias & Harry. P. Pilley and Elfrolou (Private) Limited v Muringani It is my considered view that, in this case, there is evidence upon which this court, directing its mind reasonably to such evidence, could or might find for the plaintiff. Defendant’s submission that the plaintiff failed to establish that there was a contract between the parties is belied by its own express admission to the nature and identity of the plaintiff and of the existence of a contractual relationship between the parties. The admission forms part of the joint pre-trial conference minute filed of record on 8 July 2014, and admitted into evidence at record pp 30-31 of the plaintiff’s bundle of documents.
In my view, it cannot be said that there is no evidence of the terms of the contract between the parties. Mr. Chafa told the court that the contract was a verbal one to fix and supply and provide plumbing services of which plaintiff would be paid the full value of, less five percent which would accrue to the defendant, the main contractor. That is evidence of the terms of a contract on which a court, directing its mind reasonably could or might find in favor of the plaintiff. It is therefore disingenuous in my view, to aver that there was no evidence to establish what the parties agreed, what was to be paid to the plaintiff, whether anything was actually paid, and what the balance outstanding was. Plaintiff submitted Interim Payment Certificates, whose authenticity was not disputed by the defendant, and which show how the sum of approximately USD$136 000-00 is computed, including details of materials allegedly supplied and work done.
The evidence of Mr. Chatora was clear and unequivocal in regards to the certification of the value of the work done by the defendant as a whole, and by the plaintiff in particular. Plaintiff admitted to being paid an approximate sum of USD$59 000-00, and stated that the balance due to it is USD$119 033-91, as claimed in the summons. I found no special consideration for rejecting the evidence adduced on behalf of the plaintiff. In my view plaintiff did not fail to establish any essential element of its claim. Both plaintiffs’ witnesses were found to be credible by the court. There is no reason why their evidence should not be believed by the court, on the face of it. There was no unacceptable variance with the pleadings or glaring inconsistencies. All in all the court finds that the plaintiff established its claim, on a prima facie basis. The defendant’s application for absolution from the instance is not sustainable. It is baseless and without foundation. It is dismissed. Costs shall remain in the cause.
Messrs Lawman Chimuriwo, Attorneys at Law, plaintiff’s legal practitioners
Messrs A.R. Chizikani, defendant’s legal practitioners
 The Civil Practice of the Supreme Court of South Africa 4th ed p681
 The South African Law of Evidence 4th ed, p 507
 Principles of Evidence 3rd ed p578
 1984 (2) ZLR 151 (S) @ pp156-158
 1971 (1) RLR 1 @ 5F-G
 HB 51-08
 HH 45-2011
 1918 CPD 443, JUTA, J., at p. 451
 1994 (2) ZLR 341(S)
 HH 181-02(an application for absolution from the instance which quoted Supreme v Fox & Goodridge with approval)
 HH 122-13( an application for absolution from the instance in which the applicable test is discussed at length)