Ikeogu v Guard Alert (Pvt) Ltd (HB 13 of 2008; HC 299 of 2003) [2008] ZWBHC 23 (27 February 2008)

Judgment No. HB 13/08 Case No. HC 299/03 DOCTOR MICHAEL IKEOGU Versus GUARD ALERT (PVT) LTD IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 28 FEBRUARY 2008 Adv P Dube, for the plaintiff J J Moyo, for the respondent Civil Trial NDOU J: At the close of the plaintiff’s case the defendant filed an application for absolution from the instance. The basis of the application is that it is not possible to determine the correct quantum of the damages sought by the plaintiff from the evidence by the plaintiff. It is argued that, the hearing of the defendant’s case will not resolve. It was submitted that the plaintiff’s claim in his summons and declaration is for the replacement value at the time, however, in his evidence the plaintiff confirmed that he was seeking the current value of these items. It is submitted by the defendant that because there is no evidence on the current value, the claim is for an indeterminate amount, thus rendering the claim incompetent. In other words, the current value of the items has not been established. It is common cause that the plaintiff adduced evidence from a Ms Olie Mdlongwa on the value of the items n 2004. It is trite law that the court should be extremely 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 established what will finally have to be established. Absolution from the instance at the close of a plaintiff’s case may be Judgment No. HB 13/08 Case No. HC 299/03 granted if the plaintiff has failed to establish an essential element of his claim – The Civil Practice of the Supreme Court of South Africa (4th Ed), Herbstein and Van Winsen at 683; Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Sithole v P G Industries (Pvt) Ltd HB-47-05; Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) and Moyo v Knight Frank & Anor HB-87-05. In casu, the plaintiff’s claim, as amended is the physical replacement of the computer and printer stolen from his surgery, or alternatively, the replacement value. It is trite that it is incumbent upon a plaintiff to produce sufficient evidence substantiating the exact amount of his damage – Erasmus v Davis 1969 (2) SA 1 (A) and Aaron’s Whale Rock Trust v Murray & Roberts Ltd 1992 (1) SA 652 (C) at 655. However, where a plaintiff has proved some damages or patrimonial loss but there is insufficient evidence to enable precise assessment, the court may in some instance estimate damages on the best available evidence. However, where evidence was in a general sense available to the plaintiff but he failed to produce it, the court will not attempt to assess his loss but order absolution from the instance – Hersman v Shapiro 1926 TPD 367 at 369 and Mkwananzi v Van der Merwe 1970 (1) SA 609 (A) at 630 – see also Law of Damages, P J Visser and J M Potgieter at 437. In casu, the evidence of Ms Mdlongwa should be understood in the context that the plaintiff adduced it as the best evidence upon which a proper assessment of the damages may be made. What such evidence is indeed the best evidence in terms of the above principles, is not an issue that I should determine at the close of the plaintiff’s case but at the close of the defendant’s case. It is only at the end of the trial that I will make a finding on whether the damages are capable of precise calculation from the evidence adduced by the plaintiff. At that latter stage I will not award an arbitrary amount of damages. Judgment No. HB 13/08 Case No. HC 299/03 Where there is no such best evidence I will obviously order absolution from the instance. The timing of the absolution from the instance is, in the circumstances, wrong. Accordingly, I dismiss the defendant’s application for absolution from the instance at the close of the plaintiff’s case. Lazarus & Sarif, plaintiff’s legal practitioners Calderwood, Bryce Hendrie & Partners, defendant’s legal practitioners