ORIGINAL HAULAGE (PRIVATE) LIMITED v DELTA BEVERAGES (PRIVATE) LIMITED & OTHERS (76 of 2026) [2026] ZWHHC 38 (28 January 2026)

6 HH 76-26 HCH 4000/21 ORIGINAL HAULAGE (PRIVATE) LIMITED versus DELTA BEVERAGES (PRIVATE) LIMITED and STANMORE MASISIMANI and OLD MUTUAL INSURANCE COMPANY (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE **MANYANGADZE J** HARARE, 13 May, 9 June, 4 July 2025 & 28 January 2026 _**Civil trial: absolution from the instance**_ _K Gama_ , for the plaintiff B _T. Mudhara_ , for the 1st defendant A _Muchandiona_ , for the 3rd defendant **MANYANGADZE J:** _**INTRODUCTION:**_ The plaintiff issued summons claiming damages arising out of a motor vehicle accident. It seeks the following relief: 1. “delictual damages in the sum of US$24 345.00 or Zimbabwe dollars equivalent thereto at the time of paying such damages; arising from a road traffic accident negligently caused by 2nd Defendant who was driving a truck owned by the 1st defendant and insured by the 3rd defendant during the course and within the scope of his duties as an employee or agent of the 1st defendant; 2. Interest on such damages at the prescribed rate from 21 September 2018 (the date of the accident) to the date of full and final payment; and 3. Costs of suit on a legal practitioner and client scale.” The particulars of the alleged negligence are set out as follows in paragraphs 5-7 of the plaintiff's declaration: “[5] On 21 September 2018 at Mucheke Bridge, 166 km peg along Chivhu-Nyazura Road, the 2nd defendant, who was driving a Mercedes Benz Haulage Truck (Registration No. ADS 3723 and trailer no. AEG 7177) owned by 1st Defendant and insured against third party liability by the 3rd defendant, recklessly drove the said vehicle and caused a roadtraffic accident in which his vehicle collided head on with the plaintiff's haulage truck (Reg No. ADC 3361 and trailer no. ABB 0227). [6] The 2nd defendant's conduct was reckless and unlawful in that he drove his vehicle in the right lane and failed to take any reasonable steps to avoid a collision when it was imminent. [7] As a result of 2nd Defendant's recklessness, the 1st defendant's truck collided head on with, and caused irreparable damage to, the plaintiff's truck. The collision also caused damage to the plaintiff's trailer.” In its plea, the first defendant denies liability for the accident. It avers that the driver of its truck, the second defendant, was not acting within the course and scope of his duties. On the quantum of damages, the first defendant avers that the plaintiff’s vehicle was not damaged beyond repair. It further asserts that the plaintiff is not entitled to a new vehicle as its vehicle was not new at the time of the accident. The third defendant joins issue with the first defendant as spelt out in the joint pre-trial conference minutes. It further states that its liability is only to the extent of third party cover, which is an amount of ZWL10 000,00. The plaintiff closed its case after leading evidence from three witnesses. The first and third defendants filed applications for an order of absolution from the instance. _**PLAINTIFF’S EVIDENCE**_ It is necessary to set out the plaintiff’s evidence, as the application for absolution from the instance is predicated on the sufficiency or otherwise of such evidence. Details of the evidence are on record. Only the salient features thereof will be highlighted. The plaintiff’s first witness was Zuzeyi Mandiyabe, its Managing Director. He told the court that he received a distress call from his driver, prompting him to drive to the scene of the accident. He drove to the scene from Mutare, the same night the accident occurred at Mucheke bridge, along the Chivhu-Nyazura road. The witness stated that on arrival at the scene, he found the two tricks i.e. the plaintiff’s haulage truck and the first defendant’s haulage truck, on the bridge. It appeared to be a head on collision, where the Delta truck encroached onto the lane of the other truck. The witness ferried the injured driver to Rusape General Hospital. One of the passengers in the plaintiff’s truck died. The witness said he had to hire a crane to remove both trucks from the scene. The witness went to state that the driver of the Delta truck was subsequently convicted at the Rusape Magistrates Court and was fined $500,00. The witness further stated that the plaintiff’s truck was damaged beyond repair. He said it was a write off. He had to compensate the client/customer whose container was also damaged an amount of US$10 000,00. The witness indicated that he obtained quotations for the replacement value of the truck. He also obtained panel beaters’ assessment of the damage to the truck. The thrust of the cross-examination to which the witness was subjected was to challenge his assertion that the truck was damaged beyond repair. The witness maintained his assertion. The witness explained that he is claiming an amount of US$24 345,00 as the replacement value of the truck. This includes importation costs. He indicated that he was not privy to the nature of the insurance contract between the first and third defendants. Under re-examination, the witness indicated that the replacement value he seeks is for a used truck, not a new one. He pointed out that before the accident, the vehicle was in perfect condition. He only used it to ferry company goods from Mozambique and it was usually parked when not in such use. Under questions from the court, the witness clarified that it was the horse, engine and container that were damaged. The replacement cost was that of the horse and engine.The second witness for the plaintiff was Modicia Manatse. He carries out the trade of panel beating, and is employed by Pro-Rite Auto Body Repair, a company based in Mutare. He has been with the company for 16 years, and in the trade for 26 years. After examining the plaintiff’s truck, his assessment was that it was damaged beyond repair. He wrote on the quotation to the plaintiff that the vehicle was a “wright (_sic_) off”. He explained that this means the vehicle could not be fixed. It was beyond repair. Under cross-examination from counsel for the first defendant, the witness indicated that he has no personal knowledge of what happened in 2018, the year the accident occurred. The witness was questioned on his qualifications. He explained that he did on the job apprenticeship, under qualified experts. He does not hold formal qualifications. Under re-examination, the witness indicated that he has gained expertise from 26 years’ experience in panel beating. Edward Chikukwa was the third witness for the plaintiff. His evidence was very brief. He is also a panel beater and is employed by Eddicon Panel Beaters in Mutare. He olds a Diploma in Panel Beating and Spray Painting. He has been in the trade for 23 years. The witness told the court that the plaintiff’s truck was damaged beyond repair. He explained that the damage was such that it cannot be repaired. There was nothing they could do. In the brief cross-examination he was subjected to, he indicated that he has no personal knowledge of what transpired in 2018. The witness was drawn into technical niceties of the difference in meaning between the terms “write off” and “beyond repair”. Such technicalities were not within his knowledge. The gist of his evidence was that the vehicle was damaged beyond repair. The crisp issue for determination is whether the evidence summarised above entitles the defendants to an order of absolution from the instance. _**FIRST DEFENDANT’S ARGUMENT**_ The first defendant avers that the plaintiff has failed to establish a _prima facie_ case. It is contended, on behalf of the defendant, that the evidence adduced by the plaintiff falls short of what is required to proceed with the trial. This is evidence upon which a reasonable court applying its mind, might or could find in the plaintiff’s favour. The defendant further avers that the plaintiff has placed no evidence of the pre-accident value of its vehicle. This evidence would assist the court in assessing the loss suffered. There is also no evidence of post-accident value. This is evidence on the value of the wreckage, which, assessed against the pre-accident value, assists in calculating the loss suffered by the plaintiff. Reference was made to the cases of _Doves Funeral Assurance (Pvt) Ltd v Zimbabwe Platinum Mines_ HH 103/17,_Christie Muduwa v Jeremiah Zhake & Anor_ HH 372/16,_Walker v Industrial Equity Limited_ 1995 (1) ZLR 87 (S). _THIRD DEFENDANT’S ARGUMENT_ The third defendant highlights the same principles applied in determining whether absolution should be granted as those highlighted by the first defendant. The third defendant further contends that the plaintiff has not set out any cause of action against the third defendant. It avers that it is not enough for the plaintiff to simply allege that the third defendant is an insurer of the first defendant’s vehicle. There must be evidence of the nature and scope of the coverage. In this regard, the defendant avers that the extent of its liability is ZWL10 000,00. It only covers bodily injury or death for third parties. The defendant contends that there is no basis for the joint/ several liability of the first and third defendants. _**PLAINTIFF’S ARGUMENT**_ __Ad First Defen__ _dant_ The plaintiff avers that the first defendant’s application is baseless,_mala fide_ , frivolous and vexatious.The plaintiff points out that the pre-accident value of the vehicle is given as US$22 500,00. Additionally, there are the usual importation costs, which bring the total replacement value to US$24 345,00. As for the value of the wreckage, expert evidence indicates that the vehicle was damaged beyond repair. On the replacement value, the quotations tendered as exhibits are not for a new vehicle. They are for the 2000 and 2001 models. It is therefore incorrect that the plaintiff is seeking to replace the damaged vehicle with a new one. The quotations are within range of comparable models.The plaintiff further avers that all the essential elements for the award of delictual damages are met. There was wrongful conduct on the part of the defendants. Such conduct caused patrimonial loss to the plaintiff. Reference was made to the cases of _Manyange v Mpofu & Ors_ 2011 (2) ZLR 87 (H) at 88 F-H, _Kaplin v Naison & Ors_ HH 37/24,_Gabie & Anor v Castanheira & Anor_ SC 58/20, _Katerere v Standard Chartered Bank Zimbabwe Limited_ HB 51/08, _Competition & Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd_ SC 58/19. __Ad Third Defendant__ Again, the plaintiff avers the application is frivolous and vexatious. It is ill conceived and simply done in connivance with the first defendant to frustrate the plaintiff’s well founded claim.The plaintiff points out that it is common cause the third defendant is an insurer of the first defendant. It is also common cause that the insurance is third party cover. That position establishes the defendant’s liability. Third party insurance is a statutory obligation in terms of the Road Traffic Act, sections 23 and 25. Thus, third defendant’s liability is admitted and there is no basis for absolution from the instance. _**THIRD RESPONDENT’S REPLY**_ The plaintiff has raised an issue with the third defendant’s reply to its submissions. This reply was filed on 15 July 2025. The plaintiff’s objection is in the form of a letter to the Registrar filed on 15 July 2025, in which the plaintiff avers that the third defendant’s reply is improper as it amounts to filing supplementary submissions without leave of the court. It seems to me the form in which the plaintiff’s objection has been raised is improper and unprocedural. The plaintiff should have filed formal submissions of its own, laying a basis for the objection, instead of a letter to the Registrar. This is not the usual letter following up progress on a matter. It contains submissions on the propriety of the other party’s submissions. Be that as it may, I agree with the plaintiff’s averment that the third defendant’s submissions amount to supplementary submissions. The court issued directions on what should be filed, with timelines on when it should be filed. The parties were expected to simply adhere to that. Anything further required leave of the court. The third defendant proceeded to file further submissions without leave of the court. It ought to have sought leave of the court before doing that. In any case, even if it is ruled that the further submissions were properly filed as a reply to the plaintiff’s response to the defendant’s application, it is my considered view that the submissions are essentially a reiteration of the third defendant's main submissions. They do not advance the third defendant's argument further than has already been done. _**THE LAW**_ A defendant is absolved from the instance at the close of the plaintiff’s case, if the plaintiff fails to adduce evidence upon which a court, applying its mind reasonably, might give judgment for the plaintiff. The test has been enunciated in numerous cases. These include _Gascoyne v Paul & Hunter_ 1917 TPD170 @ 173,_Supreme Service Station v Fex and Goodridge_ 1971 (1) RLR 1, _United Air Charters (Pvt) Ltd v Jarman_ 1994 (2) ZLR 341 (S),_Chiswanda v OK Zimbabwe Limited_ SC 84/20. In _Gascoyne v Paul & Hunter, supra_, at p 173, the court stated: “At the close of the plaintiff’s case, therefore, the question which arises for consideration of the court is, is there evidence upon which a reasonable man might find for the plaintiff? And if the defendant does not call any evidence, but closes his case immediately, the question for the court would be, is there such evidence upon which the court ought to give judgment in favour of the plaintiff”. In _Chiswanda v OK Zimbabwe, supra_ , the principle was clarified in the following terms: "Crucially the test to be applied is not whether or not the evidence for the plaintiff establishes what would finally be required to be established to obtain judgement. The evidence required at this stage is whether or not the plaintiff has made out a prima facie case to prove the claim... This implies that a plaintiff has to make out a _prima facie_ case-in the sense that there is evidence relating to all elements of the claim - to survive absolution..." In _Doves Funeral Assurance (Pvt) Ltd v ZimbabwePlatinum Mines, supra_ , TSANGA J had this to say, at p 9: “The test for absolution from the instance is well settled namely whether sufficient evidence has been adduced upon which a court applying its mind reasonably could or might find for the plaintiff. See _Gascoyne_ v _Paul Hunter_ 1917 TPD 170 as applied in our jurisdiction in cases such as _Supreme Service Station 1969 (Pvt) Ltd_ v _Fox Goodridge (Pvt) Ltd_ 1971 (1) ZLR 1;_United Air Charters (Pvt) Ltd_ v _Jarman_ 1994 (2) ZLR 314 (S); and _Lourenco_ v _Raja Dry Cleaners & Steam Laundry (Pvt) Ltd _1984 (2) ZLR 151 (S) among others.” In _Competition and Tariff Commission v Iwayafrica, supra_ , MAKARAU JA (“as she then was”), succinctly expressed the law in the following terms, in paragraphs 13-14: “[13] The law on when a court may grant absolution from the instance at the close of the plaintiff’s case is settled. (See _Supreme Service Station (1969) (Private) Limited v Fox & Goodridge Limited _1971 (1) ZLR 1 (A) and _United Air Charters (Private) Limited v Jarman_ 1994 (2) ZLR 341 (S). The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff. [14] Expressed differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. If there is evidence on some but not on all the essential averments, absolution may be granted, for in that instance, the plaintiff will not be able to sustain and perfect its cause of action. This is so because an application for absolution from the instance stands on pretty much the same footing as an application for the discharge of an accused person at the close of the state case _albeit_ on a lower threshold of the burden of proof. [15] It follows then that a court granting absolution must be clear on the essential averments that a plaintiff has to make to sustain the cause of action.” _ANALYSIS OF EVIENCE AND APPLICATION OF THE LAW_ From the evidence highlighted above, the following essential facts are common cause: 1. A head on collision occurred between the plaintiff’s vehicle and first defendant's vehicle. 2. The first defendant’s vehicle was being driven by the second defendant, who was at the time employed by the first defendant. 3. The second defendant was within the course and scope of his employment. The first defendant has not put this in issue during its submissions on absolution from the instance. 4. The collision was caused by the first defendant’s wrongful conduct. 5. The collision caused loss to the plaintiff. The issues raised by the first defendant of pre-accident and post-accident values of the vehicle, are addressed in the evidence adduced by the plaintiff. There is the purchase value of the vehicle, being US$22 000,00. There are price quotations of comparable values of a replacement vehicle, within the range of models of the damaged vehicle. Added to the above, the plaintiff placed before the court evidence of experts in the trade of panel beating. Their expert opinion was that the plaintiff’s truck was damaged beyond repair. In my view, the evidence constitutes a strong _prima facie_ case for the first defendant’s liability for the damages being claimed. The third defendant’s third party liability is not in issue. As to whether the third respondent bears further liability is a question of the interpretation of the applicable legislation, being the Road Traffic Act and any other ancillary statutes. More extensive ventilation of the issues can be done at the conclusion of the trial. _**DISPOSITION**_ It is my considered view that that the plaintiff has laid out a _prima facie_ case against the defendants. In the circumstances, I find no basis for the application for absolution from the instance. The plaintiff has asked for costs on the higher scale of legal practitioner and client. As this is an ongoing trial, the most appropriate order would be that costs be in the cause. **In the result, it is ordered that** : 1. The first defendant’s application for absolution from the instance be and is hereby dismissed. 2. The third defendant’s application for absolution from the instance be and is hereby dismissed. 3. Costs shall be in the cause. Manyangadze J…………………………. _Gama & Partners_, plaintiff’s legal practitioners _Mundia & Mudhara_, 1st defendant's legal practitioners _Danziger & Partners_, 3rd defendant's legal practitioners