Benjamin Majuru V Hashman Malemera [2025] ZWCHHC 9 (26 March 2025)

7 HCC 19/25 HCCC 118/22 BENJAMIN MAJURU Versus HASHMAN MATEMERA HIGH COURT CHINHOYI MUZOFA J CHINHOYI, 23, 24 January & 26 March 2025 Civil Trial P. Sosono, for the plaintiff A. Muchandiona, for the defendant MUZOFA J: Introduction [1] The plaintiff’s claim is for specific performance. Initially he issued summons claiming US$30 000.00 which was reduced to US$18 204.00 after the pretrial conference. [2] The defendant opposed the claim. From his perspective he duly performed his side of the bargain in fact the plaintiff was overpaid for the work done. Factual background [3] The plaintiff is a builder by profession. The defendant contracted the plaintiff to construct certain buildings at his farm known as Dungane Farm ‘the Farm’ from 2017 to 2019. The parties entered into a verbal agreement. The total cost agreed by the parties at the pre-trial stage was US$40 150.00. [4] The parties also agreed that during the implementation of the contract in the period 2017 to 2019 the defendant paid a total of US$11 506.00. The money was paid in cash and in kind through the plaintiff’s employees drawing grocery items and other provisions from the defendant’s shops. [5] It was common cause that the plaintiff also received a Nissan Caravan Minibus as part of payment. Parties could not agree on the amount it represented. This is one of the issues referred to trial. [6] It appeared that the plaintiff did not keep records of monies paid and outstanding amounts. He relied on the documentation kept at the defendant’s Farm. They worked amicably with the drawdowns taking place whenever necessary. When the relationship terminated and the plaintiff thought he was still owed by the defendant he had no choice but to be guided by the plaintiff’s documents. Thus at the pre-trial conference before JUSTICE BACHI- MZAWAZI after the plaintiff had sight of all the documentary evidence that the defendant intended to rely on to establish full payment, he reduced the claim to US$18 204.00. [7] Two issues were subsequently referred to trial; Whether the parties agreed that the value of the Nissan Caravan Minibus was US$6 500.00.Whether the plaintiff and his employees received US$3 940.00 as payment. [8] It was also agreed that the onus was on the plaintiff to prove both issues. Application for Absolution [9] On the date of hearing the plaintiff led evidence from two witnesses and closed his case. [10] After the plaintiff presented his case. The defendant applied for absolution from the instance. The application partially succeeded. I granted the application on the first issue and dismissed it on the second issue in an ex-tempore judgment. [11] For the sake of completeness, I briefly set out in writing my reasons for the decision. [12] Two issues were advanced for absolution from the instance by the defendant. Firstly, that the plaintiff’s claim was US$30 000.00 but reduced to US$18 204.00, the plaintiff was required to amend the summons and the declaration to reflect the revised claim. The court was not referred to any authority for this proposition. Secondly that there was no prima facie case against the defendant. [13] The application was opposed. The point taken was that the parties agreed on the reduction of the claim at PTC stage. The defendant was well aware of the revised claim. It only became necessary to amend the summary of evidence which was done.On the evidence Mr Sosono posited that in respect of both issues there was evidence to establish the claim. [14] The task before the court was to consider whether or not the plaintiff established a prima facie case, one which the court can say needs to be explained or rebutted by the defendant. Courts are slow to grant applications for absolution from the instance at the close of the plaintiff’s case since it potentially infringes on a litigant’s right to be heard and the right to a fair hearing. Thus, at this stage even if the application is granted it does not bar the plaintiff from filing the claim again provided it has not prescribed. In essence, the infringement is not absolute in real terms. [15] The standard of proof in such an application is less onerous. It is worth repeating the test that has stood the test of time eloquently expressed in Gascoyne v Paul and Hunter 1917 TPD 170 @ 1703 that; “At the close of the plaintiff’s case, therefore the question which arises for the 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.” [16] On the value of the Nissan Caravan, the plaintiff’s case hinged on his word of mouth. This was a verbal agreement. There was no further evidence to corroborate his word. This is the difficulty with verbal agreements. Almost invariably the case boils to his word against the respondent’s word. [17] The plaintiff did not even allude to how the negotiations were made, what figures were proposed by the defendant and how they finally agreed on the purchase price he advocates for. There was no information who the plaintiff specifically negotiated with. Such information places the verbal agreement into perspective. The Court can then appreciate what transpired that the defendant has to answer to. The court cannot simply surmise that the plaintiff proposed the purchase price and the defendant agreed to it. There must be more. Even his witness knew nothing about the agreement. The plaintiff did not even adduce evidence from reputable garages on the value of similar motor vehicles to support the value he claimed. [18] So if the court would ask itself, is there evidence upon which the Court could or might find for the plaintiff. I do not think so. The plaintiff failed to make a prima facie case against the defendant. [19] The plaintiff would still be at large to pursue the matter if further evidence is available. This is what the learned authors Hoffmann G and Zeffertt op cit at 263 succinctly stated in the following words: "The decree of absolution from the instance (or an order dismissing the plaintiff's claims) is specifically intended to allow the plaintiff to bring another action if he can find better evidence in support of his claim. Absolution ...can therefore never found a cause of action estoppel." [20] In respect of the amendment, it is trite that pleadings can be amended at any time of the proceedings provided there is no prejudice on the other party. The Court must exercise its discretion whether to allow an amendment or not. The purpose of an amendment is to place before the court the real question in controversy between the parties. [21] In this case when the parties appeared before the PTC Judge, they agreed that US$11 506.00 was paid to the plaintiff. The total cost for work done was US$40 150.00. The plaintiff’s claim was initially US$30 000.00. The admission at pre-trial stage naturally reduced the claim to US$18 494.00.This concession did not alter the initial claim of US$30 000. On that basis I considered that the defendant proceeded to trial very much aware of the issues/amount claimed. There was no prejudice to his plea, in fact none was alleged. This point is more of a cry on form than substance. The controversial issues between the parties for the Court to determine was delineated and agreed at PTC stage. The point taken was dismissed for those reasons. [22] On the payments for work done, I considered that the parties relied on the same documents that provided prima facie proof of payments made to the plaintiff. They speak of different figures. The defendant therefore must answer to the payments pointed and admitted by the plaintiff to the exclusion of the other payments that are in the documentary evidence. [23] What then remains for determination is the second issue, whether the plaintiff and his employees received US$3 940.00. Expressed differently the issue is whether the defendant paid US$3 940.00 to the plaintiff. Plaintiff’s Case Benjamin Majuru [24] He is plaintiff and he gave oral evidence. He was contracted to build structures for the defendant. He commenced construction work in 2017 and completed in 2019. [25] On payments he said he relied on payments on the defendant’s bundle of documents on pages 83 to 86, page 88, page 90 and page 126. These were payments made to his employees. He personally received US$2 430.00 through eco-cash and cash US$1 510. The total received was US$3 940.00. The food provisions of US$11 506.00 was admitted. He denied that he was fully paid. [26] He was cross examined extensively on how he left the farm. Whether he had completed his tasks. The cross examination on this point was rendered irrelevant since the parties agreed that the plaintiff rendered services worth US$40 150.00. This is what was before the court. [27] Further under cross examination, it was suggested that the plaintiff failed to pay his assistants despite being paid by the defendant which led to parties entering into an arrangement for the defendant to pay the assistants. He professed ignorance of such an arrangement. He was adamant that he paid all his assistants. He conceded that he did not keep records of payments, they were kept by the defendant. In short the plaintiff acknowledged receipt of monies he appended his signature on. Revayi Muyengwa [28] He was an assistant builder who worked with the plaintiff at the defendant’s Farm in February 2018. He left in July 2018. The project was almost complete, outstanding was to plaster the buildings. He said he received all his payments from the plaintiff. At no time did he engage with defendant or even receive his dues from the defendant. [29] He was briefly cross examined. He confirmed that assistant builders would sign for groceries and other provisions from the defendant’s shop. There were no hard and fast procedures, at times the plaintiff would accompany him at times he signed and received provisions/groceries and other amenities in the absence of the plaintiff. However, one had to advise the plaintiff first before to accessing this privilege. [30] He denied that some assistants were paid directly by the defendant. To his knowledge at all times the plaintiff paid his assistant builders. Defendant’s Case Hashmon Matemera [31] He owns the Farm and he contracted the plaintiff to construct various buildings for him in 2017. Initially the plaintiff worked with one Mr Mutsindikwa. Thereafter he decided to engage the plaintiff as the main contractor after he learnt of his impressive work record. [32] He narrated how the plaintiff built a pit toilet and was paid the whole amount. He was also supposed to build a stage for road shows among other buildings. The plaintiff did not complete the buildings. The plaintiff left unceremoniously in November 2018. The parties had not reconciled their figures. [33] The plaintiff resurfaced in June 2019 at a road show hosted at the defendant’s farm. They briefly chitchatted and the issue on the outstanding reconciliation was mentioned. He asked the plaintiff why he left before a reconciliation was made. He was surprised to receive a message in May 2022 from the plaintiff claiming a balance of US$25 240.00. He directed the plaintiff to the Farm so that a proper reconciliation can be made. The plaintiff had also approached the National Employment Council to recover his money. His efforts hit a brick wall since the plaintiff was a contractor and not an employee. [34] He confirmed that his Clerk at the Farm kept all the records. The plaintiff’s assistants would take groceries, tools and other gadgets from the Farm shop. The amounts were then debited from the plaintiff’s account. Each assistant would sign on receipt of goods. Usually, the plaintiff would sign for cash payments. [35] To the crux of the case, he referred to vouchers where plaintiff’s assistants signed for goods. The defendant’s bundle of documents was produced through him by consent. [36] In a nutshell his evidence was that, the bundle of documents would show that the plaintiff and his assistants were in fact paid more than the agreed amount. The payments were made in cash and in kind. I will revert to the details later in the judgment. [37] He also alluded to the fact that plaintiff would not pay his assistants timeously so they were paid directly by the defendant through his clerk. This claim is a fishing expedition that is why the plaintiff has continued to change the figures. He did not even understand how the plaintiff came up with the total amount claimed. This understandable since the plaintiff did not have documents to establish the amount paid, one wonders how he came to the figures claimed. [38] From his cross examination nothing remarkable was elicited. When probed on the documents on whether the unsigned documents were proof of payment to the plaintiff, he conceded that it was not. An allegation was made that his employees could have forged some documents. He denied it. Unfortunately, the Farm Clerk tasked with the duty had passed on so he could not even find some documents. He admitted that one transaction on page 126 of the bundle of documents was done without the plaintiff’s approval. Taurai Mupesa [39] At the time, he was the Operations Manager at the Farm. His evidence was that the plaintiff was contracted in 2017 to construct some buildings at the Farm. He did not complete them. He left unceremoniously in November 2018. [40] During the time the plaintiff was contracted, as the Operations Manager he supplied all the working tools, the safety boots and food. There was a gentleman’s agreement that the plaintiff’s assistants would receive coupons redeemable at the Farm shop. The assistants would take items from the Farm shop and each recipient signed for goods taken. [41] As their working relationship went on complaints were raised by some of the plaintiff’s assistants on non-payment. He could remember the two Kajuwa brothers who raised such a complaint, he had forgotten others but they were many. According to him the plaintiff was fully compensated for work done. In any event the plaintiff was not entitled to the full payment since he did not fulfil his part of the contract. [42] He denied that the plaintiff left because there were no building materials to complete the work. At all times the defendant supplied the required building materials. The plaintiff’s assistants actually completed the work left by the plaintiff and they were paid. [43] Under cross examination he conceded that no reconciliation was done when the plaintiff left. They expected the plaintiff to return for the reconciliation. However, when he collected the motor vehicle in November 2019 he had promised to return but did not. He said the plaintiff had authorised that the Farm would directly pay his assistants since he had failed to pay them. He also conceded that the receipts which did not bear the recipient’s signatures would not be proof of payment. Lazarus Kajuwa [44] He was a builder and resides in Tengwe, Karoi. He together with his brother Peter worked with the plaintiff at the defendant’s farm in 2016. He was not certain when plaintiff left the farm. However, he still remembered that the plaintiff left before completing the stage. The pillars, water trenches, beam fitting and floors had not been done. When the plaintiff left unceremoniously, the assistants completed the work and they were paid. The plaintiff gave them a piece of paper authorising payment of US$800.00. He submitted the piece of paper at the Farm shop. [45] During the time he worked with the plaintiff, payments to assistants were not consistent. An agreement was entered into where the plaintiff authorised the defendant to directly pay the assistants. The payments were in cash and kind. At some point he worked on a separate contract with his late brother and under that account they took bicycles. Generally, the plaintiff’s assistants were disgruntled. [46] The defendant closed his case after this witness. The parties duly filed their written closing submissions as directed by the court. The Plaintiff’s Closing Submissions [47] What eminently presented itself in the plaintiff’s submissions is that, at the end of his case he claimed US$12 704.00. The plaintiff overlooked that his initial claim was for US$30 000.00 and not US$40 150.00. I revert to the point later in the judgment. The computation varied the claim as referred to trial. [48] On that misguided premise, the plaintiff posited that the documentary proof before the court established that defendant paid US$11 506.00 in the form of groceries and other goods, then the US$12 000.00 being the value of the Nissan Caravan and the admitted US$3 940.00 was paid. The total being US$27 446.00, so the defendant is liable to pay US$12 704.00. The defendant failed to show that he paid the amount. [49] Mr Sosono also said he relied on admissions made by the defendant. It was unclear which admission was made, probably that the parties had contracted and agreed on US$40 150.00 as the full payment. He then, shifted the onus on the defendant that he should prove that he paid the alleged amount. He relied on the correct position of the law, in the Civil Evidence Act [Chapter 8:01]1 and the case of Mining Industry Pension Fund v Dab Marketing (Pvt) Ltd2 that a judicial admission by one party is binding and it is conclusive of the issue admitted. Unfortunately the defendant made no concessions in respect of the claim and had no onus to discharge. [50] The plaintiff urged the court to find the defendant’s case not credible. That the defendant contradicted himself thus failed to prove that he paid the full amount as agreed. The Defendant’s Closing Submissions [51] The defendant’s submissions highlighted that the plaintiff’s claim literally changed as the proceedings unravelled. Further that the claim is bad at law since it lacks specificity. The court was referred to relevant authorities3 on the requirement to set out a party’s case clearly in the pleadings and the rationale for the principle. [52] The second point taken is that the plaintiff shifted the onus on the defendant yet parties agreed that on both issues the plaintiff bore the onus. The court was urged to dismiss the claim as the plaintiff failed to adduce evidence of what he was paid. He was not a credible witness, he changed his claim at every turn. Analysis [53] As I analysed the evidence in this case what clearly exercised my mind is that the plaintiff was on a hunting expedition, not sure of what he will catch but determined to pursue whatever presented itself. The number of times his claim changed during the proceedings left the court with doubts on the claim. The summons were issued in the sum of US$30 000 then it was US$18 204 at PTC stage and finally it at the close of the hearing the claim stood at US$12 704.00. [54] In fact the US$12 704 finally claimed in the heads of argument was not even supported by evidence. The plaintiff’s evidence was that his claim was now $18 204. [55] Heads of arguments are not evidence and cannot vary the claim made. A litigant cannot nicodemously support a cause that was not even claimed. In Jennifer Nan Brooker v (1) Mudhanda & Anor (2) Adrienne Staley Pierce v Richard Mudhanda & Anor4 the court briefly stated the purpose of heads of argument as follows, ‘The purpose of heads of argument is to expound on the law applicable to the facts placed before the court, and one cannot plead through written submissions. It is also trite that one cannot adduce evidence through heads of argument, but one may do so either in affidavits or viva voce evidence.’ [56] From that dictum, the plaintiff’s heads of argument should have confined themselves to the claim as agreed by the parties at PTC stage and the evidence before the Court. A legal practitioner while preparing heads of argument cannot go on a frolic of his own and expound what was not before the court. Both the evidence and the pleadings did not relate to the US$ 12 704.The approach was wrong. [57] As the proceedings went on, it was apparent that the plaintiff and the defendant had unfinished business. Although the plaintiff provided a service the parties had not reconciled the value of the service. That could explain the different figures thrown by the plaintiff. [58] As a starting point the plaintiff’s case was not supported by documentary evidence. It was alleged that the defendant was the custodian of the documents. There was nothing to stop the plaintiff from obtaining those documents and incorporate them into his case. [59] One may ask why the court then dismissed the application for absolution from the instance. I am aware of the position taken in Mativenga v Lafarge Cement Zimbabwe Ltd5 that to allow a plaintiff to rely on the defendant’s documents is akin to shifting the onus to the defendant to prove its case. That maybe so but I found the circumstances of this case different and required the Court to allow the plaintiff to rely on the documents. The reason is that at PTC stage the parties referred and revised the claim based on the defendant’s documents. By inference the parties were agreed that the documents are a true reflection of payments made. In order to achieve justice between man and man, I was of the firm view that there was no prejudice on the defendant. Little did I know that the plaintiff still had some more surprises. [60] As already stated the initial claim was US$30 000.00 and not US$40 150.00. That the parties agreed that the plaintiff contracted to work for US$40 150.00 would not vary the claim in the absence of an amendment. The claim was later reduced to US$18 204.00 at pre-trial stage. After granting absolution in respect of the Nissan Caravan, it means the defendant’s claim that they agreed on a value of US$12 000.00 was the acceptable value. The plaintiff’s claim was reduced by US$12 000.00 to US$6 204.00. Any other amount claimed would be outside the plaintiff’s claim. A litigant is bound by their pleadings so is the Court. The learned authors Jacob & Golden6 had this say on the rigidity of this principle, ‘For the sake certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without an amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as much bound by the pleadings of the parties as they are themselves’ [61] Speaking of the Court being bound by the pleadings, the Court cannot even grant an order which the parties have not prayed for. It must be guided by the orders sought.See Goodwood Hotels (Pvt) Ltd t/a Cutty Sark Hotel v (1) David Hunzvi (2) 3 Apple International (Pvt) Limited, Rodgers v Chiutsi & Ors. 7 [62] The onus was on the plaintiff to prove that he was paid US$3 940.00 only. This is what the parties agreed at the pre-trial conference. The question is, did he prove the claim particularly in view of the defendant’s plea that the plaintiff was fully paid? When one speaks of the need to discharge an onus, it immediately becomes clear that there is an evidentiary burden that must be met. See the Van Brooker case (supra). [63] In his evidence in chief the plaintiff said he received the following amounts. I reproduce the amounts with reference to the documents before the court, PAGE RECIPIENT AMOUNT REASON 83 L Majuru $500 Wage advance 84 L Majuru $20 Wage advance 85 L Majuru $20 Wage advance 86 L Majuru $30 Wage advance 88 L Majuru $10 Wage advance 90 L Majuru $50 Loan to take sick relative to Murehwa Not signed for 1260 Katuwa $700 Received by Katuwa 126 L Majuru $300 Boss Matemera Total $1630 Cash $2 430.00 then eco-cash $1 510.00A proper computation of the amounts gives a total of US$5 570.00. [64] The following observations are pertinent, the plaintiff acknowledged receipt of amounts that were counter signed by the recipients. However, it was not explained by the plaintiff why he nit picked amounts on page 126. Page 126 bears different amounts signed for by different people. For instance the US$700.00 admitted as received by Katuwa was not signed for. It bears Katuwa’s name only. [65] There was no evidence that he received the US$2 430.00 cash and the eco-cash transfer of US$1 510.00. The importance of proof other than word of mouth is on credibility. The plaintiff demonstrated an insatiable appetite to vary his claim. So when he mentions bare figures how does the court know that he did not pluck the figures from the air particularly in view of the fact that these amounts were not readily admitted at PTC stage. He only admitted the amounts received in kind by his assistants. [66] The schedule contradicts the plaintiff’s evidence that his assistants were not paid any wages by the defendant. L. Majuru consistently drew his wage allowance from the defendant and the plaintiff conceded that evidence. His viva voce evidence then contradicted the documentary evidence. Documentary evidence is real evidence. I accept the documentary evidence over the viva voce evidence. [67] What probably puts the case to rest is whether the plaintiff proved on a balance of probabilities that he was paid US$3 910.00. The answer is negative. By his own word of mouth, he showed that he was paid US$5 570.00. His claim fails on that basis. [68] I do not believe the defendant bore any onus to discharge. The plaintiff could not shift the onus to the defendant controverting what the parties agreed to. Disposition [69] The plaintiff failed to prove that he was paid US$3 940.00 only in cash or in kind by the defendant. The plaintiff demonstrated that he was paid more than that. It was incomprehensible and without any formulae why he admitted certain countersigned amounts denying some amounts. The plaintiff throughout his case threw figures around varying them here and there. Initially his claim was for US$18 204.00 after the pre-trial conference but at the end of trial in the closing submissions the claim was for US$12 704.00 which was factually unsubstantiated by evidence. [70] On costs, defendant prayed for costs on a higher scale on the basis that the claim is an abuse of court process. Courts are slow to grant costs on a punitive scale lest it discourages litigants to assert and protect their rights and interest. Thus, certain considerations must be made before such a scale of costs is granted. [71] AC Cilliers in The Law of Costs 2nd ed p 66, classified the grounds upon which a court can be justified to award cost on a higher scale as follows, Vexatious and frivolous proceedingsDishonesty of fraud of litigantReckless or malicious proceedingsLitigant’s deplorable attitude towards the courtOther circumstances (See also Crief Investments & Anor v Grand Home & Ors HH 12/18, Kadongwe v Muketiwa & Ors HCC3/23). [72] A reading of both authoritative texts and case law shows that courts should award costs on a higher scale in exceptional cases where the degree of irregularities, bad behaviour and vexatious proceedings necessitates the granting of such costs, and not merely because the winning party requested for them. Costs should not deter access to justice they must be an enabler. [73] There was no evidence of abuse of court process as alleged by the defendant and nothing was pointed to as evidence of abuse. Courts exist to deal with disputes and this case presented a dispute. The plaintiff indeed rendered services and indeed parties did not reconcile the figures. His folly was to imagine what he could be owed as balance without proof. His recourse lay in approaching the defendant for a proper reconciliation before approaching the court. That cannot be classified as abuse. People out there do not know what constitutes acceptable proof before the Courts. [74] From the forgoing the claim cannot succeed and there is no valid reason to deviate from the time-honoured principle that costs follow the cause, albeit on an ordinary scale. Accordingly, the claim is dismissed with costs. Sosono & Partners, the plaintiff’s legal practitioners. Danziger & Partners, the defendant’s legal practitioners. 1 S36 thereof. 2 SC 25/02. 3 Easy Credit (Pvt) Ltd & Ors v IDBZ SC 85/21, Jowell v Bramwell-Jones 1998 (1) SA 836, Makachi & Ors v ECZ SC 103/22. 4 SC5/18 5 HH533-22 6 Pleadings: Principles and Practice @p8-9 7 SC24/24, SC 25/22 7 HCC 19/25 HCCC 118/22 7 HCC 19/25 HCCC 118/22 BENJAMIN MAJURU Versus HASHMAN MATEMERA HIGH COURT CHINHOYI MUZOFA J CHINHOYI, 23, 24 January & 26 March 2025 Civil Trial P. Sosono, for the plaintiff A. Muchandiona, for the defendant MUZOFA J: Introduction [1] The plaintiff’s claim is for specific performance. Initially he issued summons claiming US$30 000.00 which was reduced to US$18 204.00 after the pretrial conference. [2] The defendant opposed the claim. From his perspective he duly performed his side of the bargain in fact the plaintiff was overpaid for the work done. Factual background [3] The plaintiff is a builder by profession. The defendant contracted the plaintiff to construct certain buildings at his farm known as Dungane Farm ‘the Farm’ from 2017 to 2019. The parties entered into a verbal agreement. The total cost agreed by the parties at the pre-trial stage was US$40 150.00. [4] The parties also agreed that during the implementation of the contract in the period 2017 to 2019 the defendant paid a total of US$11 506.00. The money was paid in cash and in kind through the plaintiff’s employees drawing grocery items and other provisions from the defendant’s shops. [5] It was common cause that the plaintiff also received a Nissan Caravan Minibus as part of payment. Parties could not agree on the amount it represented. This is one of the issues referred to trial. [6] It appeared that the plaintiff did not keep records of monies paid and outstanding amounts. He relied on the documentation kept at the defendant’s Farm. They worked amicably with the drawdowns taking place whenever necessary. When the relationship terminated and the plaintiff thought he was still owed by the defendant he had no choice but to be guided by the plaintiff’s documents. Thus at the pre-trial conference before JUSTICE BACHI- MZAWAZI after the plaintiff had sight of all the documentary evidence that the defendant intended to rely on to establish full payment, he reduced the claim to US$18 204.00. [7] Two issues were subsequently referred to trial; Whether the parties agreed that the value of the Nissan Caravan Minibus was US$6 500.00. Whether the plaintiff and his employees received US$3 940.00 as payment. [8] It was also agreed that the onus was on the plaintiff to prove both issues. Application for Absolution [9] On the date of hearing the plaintiff led evidence from two witnesses and closed his case. [10] After the plaintiff presented his case. The defendant applied for absolution from the instance. The application partially succeeded. I granted the application on the first issue and dismissed it on the second issue in an ex-tempore judgment. [11] For the sake of completeness, I briefly set out in writing my reasons for the decision. [12] Two issues were advanced for absolution from the instance by the defendant. Firstly, that the plaintiff’s claim was US$30 000.00 but reduced to US$18 204.00, the plaintiff was required to amend the summons and the declaration to reflect the revised claim. The court was not referred to any authority for this proposition. Secondly that there was no prima facie case against the defendant. [13] The application was opposed. The point taken was that the parties agreed on the reduction of the claim at PTC stage. The defendant was well aware of the revised claim. It only became necessary to amend the summary of evidence which was done.On the evidence Mr Sosono posited that in respect of both issues there was evidence to establish the claim. [14] The task before the court was to consider whether or not the plaintiff established a prima facie case, one which the court can say needs to be explained or rebutted by the defendant. Courts are slow to grant applications for absolution from the instance at the close of the plaintiff’s case since it potentially infringes on a litigant’s right to be heard and the right to a fair hearing. Thus, at this stage even if the application is granted it does not bar the plaintiff from filing the claim again provided it has not prescribed. In essence, the infringement is not absolute in real terms. [15] The standard of proof in such an application is less onerous. It is worth repeating the test that has stood the test of time eloquently expressed in Gascoyne v Paul and Hunter 1917 TPD 170 @ 1703 that; “At the close of the plaintiff’s case, therefore the question which arises for the 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.” [16] On the value of the Nissan Caravan, the plaintiff’s case hinged on his word of mouth. This was a verbal agreement. There was no further evidence to corroborate his word. This is the difficulty with verbal agreements. Almost invariably the case boils to his word against the respondent’s word. [17] The plaintiff did not even allude to how the negotiations were made, what figures were proposed by the defendant and how they finally agreed on the purchase price he advocates for. There was no information who the plaintiff specifically negotiated with. Such information places the verbal agreement into perspective. The Court can then appreciate what transpired that the defendant has to answer to. The court cannot simply surmise that the plaintiff proposed the purchase price and the defendant agreed to it. There must be more. Even his witness knew nothing about the agreement. The plaintiff did not even adduce evidence from reputable garages on the value of similar motor vehicles to support the value he claimed. [18] So if the court would ask itself, is there evidence upon which the Court could or might find for the plaintiff. I do not think so. The plaintiff failed to make a prima facie case against the defendant. [19] The plaintiff would still be at large to pursue the matter if further evidence is available. This is what the learned authors Hoffmann G and Zeffertt op cit at 263 succinctly stated in the following words: "The decree of absolution from the instance (or an order dismissing the plaintiff's claims) is specifically intended to allow the plaintiff to bring another action if he can find better evidence in support of his claim. Absolution ...can therefore never found a cause of action estoppel." [20] In respect of the amendment, it is trite that pleadings can be amended at any time of the proceedings provided there is no prejudice on the other party. The Court must exercise its discretion whether to allow an amendment or not. The purpose of an amendment is to place before the court the real question in controversy between the parties. [21] In this case when the parties appeared before the PTC Judge, they agreed that US$11 506.00 was paid to the plaintiff. The total cost for work done was US$40 150.00. The plaintiff’s claim was initially US$30 000.00. The admission at pre-trial stage naturally reduced the claim to US$18 494.00.This concession did not alter the initial claim of US$30 000. On that basis I considered that the defendant proceeded to trial very much aware of the issues/amount claimed. There was no prejudice to his plea, in fact none was alleged. This point is more of a cry on form than substance. The controversial issues between the parties for the Court to determine was delineated and agreed at PTC stage. The point taken was dismissed for those reasons. [22] On the payments for work done, I considered that the parties relied on the same documents that provided prima facie proof of payments made to the plaintiff. They speak of different figures. The defendant therefore must answer to the payments pointed and admitted by the plaintiff to the exclusion of the other payments that are in the documentary evidence. [23] What then remains for determination is the second issue, whether the plaintiff and his employees received US$3 940.00. Expressed differently the issue is whether the defendant paid US$3 940.00 to the plaintiff. Plaintiff’s Case Benjamin Majuru [24] He is plaintiff and he gave oral evidence. He was contracted to build structures for the defendant. He commenced construction work in 2017 and completed in 2019. [25] On payments he said he relied on payments on the defendant’s bundle of documents on pages 83 to 86, page 88, page 90 and page 126. These were payments made to his employees. He personally received US$2 430.00 through eco-cash and cash US$1 510. The total received was US$3 940.00. The food provisions of US$11 506.00 was admitted. He denied that he was fully paid. [26] He was cross examined extensively on how he left the farm. Whether he had completed his tasks. The cross examination on this point was rendered irrelevant since the parties agreed that the plaintiff rendered services worth US$40 150.00. This is what was before the court. [27] Further under cross examination, it was suggested that the plaintiff failed to pay his assistants despite being paid by the defendant which led to parties entering into an arrangement for the defendant to pay the assistants. He professed ignorance of such an arrangement. He was adamant that he paid all his assistants. He conceded that he did not keep records of payments, they were kept by the defendant. In short the plaintiff acknowledged receipt of monies he appended his signature on. Revayi Muyengwa [28] He was an assistant builder who worked with the plaintiff at the defendant’s Farm in February 2018. He left in July 2018. The project was almost complete, outstanding was to plaster the buildings. He said he received all his payments from the plaintiff. At no time did he engage with defendant or even receive his dues from the defendant. [29] He was briefly cross examined. He confirmed that assistant builders would sign for groceries and other provisions from the defendant’s shop. There were no hard and fast procedures, at times the plaintiff would accompany him at times he signed and received provisions/groceries and other amenities in the absence of the plaintiff. However, one had to advise the plaintiff first before to accessing this privilege. [30] He denied that some assistants were paid directly by the defendant. To his knowledge at all times the plaintiff paid his assistant builders. Defendant’s Case Hashmon Matemera [31] He owns the Farm and he contracted the plaintiff to construct various buildings for him in 2017. Initially the plaintiff worked with one Mr Mutsindikwa. Thereafter he decided to engage the plaintiff as the main contractor after he learnt of his impressive work record. [32] He narrated how the plaintiff built a pit toilet and was paid the whole amount. He was also supposed to build a stage for road shows among other buildings. The plaintiff did not complete the buildings. The plaintiff left unceremoniously in November 2018. The parties had not reconciled their figures. [33] The plaintiff resurfaced in June 2019 at a road show hosted at the defendant’s farm. They briefly chitchatted and the issue on the outstanding reconciliation was mentioned. He asked the plaintiff why he left before a reconciliation was made. He was surprised to receive a message in May 2022 from the plaintiff claiming a balance of US$25 240.00. He directed the plaintiff to the Farm so that a proper reconciliation can be made. The plaintiff had also approached the National Employment Council to recover his money. His efforts hit a brick wall since the plaintiff was a contractor and not an employee. [34] He confirmed that his Clerk at the Farm kept all the records. The plaintiff’s assistants would take groceries, tools and other gadgets from the Farm shop. The amounts were then debited from the plaintiff’s account. Each assistant would sign on receipt of goods. Usually, the plaintiff would sign for cash payments. [35] To the crux of the case, he referred to vouchers where plaintiff’s assistants signed for goods. The defendant’s bundle of documents was produced through him by consent. [36] In a nutshell his evidence was that, the bundle of documents would show that the plaintiff and his assistants were in fact paid more than the agreed amount. The payments were made in cash and in kind. I will revert to the details later in the judgment. [37] He also alluded to the fact that plaintiff would not pay his assistants timeously so they were paid directly by the defendant through his clerk. This claim is a fishing expedition that is why the plaintiff has continued to change the figures. He did not even understand how the plaintiff came up with the total amount claimed. This understandable since the plaintiff did not have documents to establish the amount paid, one wonders how he came to the figures claimed. [38] From his cross examination nothing remarkable was elicited. When probed on the documents on whether the unsigned documents were proof of payment to the plaintiff, he conceded that it was not. An allegation was made that his employees could have forged some documents. He denied it. Unfortunately, the Farm Clerk tasked with the duty had passed on so he could not even find some documents. He admitted that one transaction on page 126 of the bundle of documents was done without the plaintiff’s approval. Taurai Mupesa [39] At the time, he was the Operations Manager at the Farm. His evidence was that the plaintiff was contracted in 2017 to construct some buildings at the Farm. He did not complete them. He left unceremoniously in November 2018. [40] During the time the plaintiff was contracted, as the Operations Manager he supplied all the working tools, the safety boots and food. There was a gentleman’s agreement that the plaintiff’s assistants would receive coupons redeemable at the Farm shop. The assistants would take items from the Farm shop and each recipient signed for goods taken. [41] As their working relationship went on complaints were raised by some of the plaintiff’s assistants on non-payment. He could remember the two Kajuwa brothers who raised such a complaint, he had forgotten others but they were many. According to him the plaintiff was fully compensated for work done. In any event the plaintiff was not entitled to the full payment since he did not fulfil his part of the contract. [42] He denied that the plaintiff left because there were no building materials to complete the work. At all times the defendant supplied the required building materials. The plaintiff’s assistants actually completed the work left by the plaintiff and they were paid. [43] Under cross examination he conceded that no reconciliation was done when the plaintiff left. They expected the plaintiff to return for the reconciliation. However, when he collected the motor vehicle in November 2019 he had promised to return but did not. He said the plaintiff had authorised that the Farm would directly pay his assistants since he had failed to pay them. He also conceded that the receipts which did not bear the recipient’s signatures would not be proof of payment. Lazarus Kajuwa [44] He was a builder and resides in Tengwe, Karoi. He together with his brother Peter worked with the plaintiff at the defendant’s farm in 2016. He was not certain when plaintiff left the farm. However, he still remembered that the plaintiff left before completing the stage. The pillars, water trenches, beam fitting and floors had not been done. When the plaintiff left unceremoniously, the assistants completed the work and they were paid. The plaintiff gave them a piece of paper authorising payment of US$800.00. He submitted the piece of paper at the Farm shop. [45] During the time he worked with the plaintiff, payments to assistants were not consistent. An agreement was entered into where the plaintiff authorised the defendant to directly pay the assistants. The payments were in cash and kind. At some point he worked on a separate contract with his late brother and under that account they took bicycles. Generally, the plaintiff’s assistants were disgruntled. [46] The defendant closed his case after this witness. The parties duly filed their written closing submissions as directed by the court. The Plaintiff’s Closing Submissions [47] What eminently presented itself in the plaintiff’s submissions is that, at the end of his case he claimed US$12 704.00. The plaintiff overlooked that his initial claim was for US$30 000.00 and not US$40 150.00. I revert to the point later in the judgment. The computation varied the claim as referred to trial. [48] On that misguided premise, the plaintiff posited that the documentary proof before the court established that defendant paid US$11 506.00 in the form of groceries and other goods, then the US$12 000.00 being the value of the Nissan Caravan and the admitted US$3 940.00 was paid. The total being US$27 446.00, so the defendant is liable to pay US$12 704.00. The defendant failed to show that he paid the amount. [49] Mr Sosono also said he relied on admissions made by the defendant. It was unclear which admission was made, probably that the parties had contracted and agreed on US$40 150.00 as the full payment. He then, shifted the onus on the defendant that he should prove that he paid the alleged amount. He relied on the correct position of the law, in the Civil Evidence Act [Chapter 8:01]1 and the case of Mining Industry Pension Fund v Dab Marketing (Pvt) Ltd2 that a judicial admission by one party is binding and it is conclusive of the issue admitted. Unfortunately the defendant made no concessions in respect of the claim and had no onus to discharge. [50] The plaintiff urged the court to find the defendant’s case not credible. That the defendant contradicted himself thus failed to prove that he paid the full amount as agreed. The Defendant’s Closing Submissions [51] The defendant’s submissions highlighted that the plaintiff’s claim literally changed as the proceedings unravelled. Further that the claim is bad at law since it lacks specificity. The court was referred to relevant authorities3 on the requirement to set out a party’s case clearly in the pleadings and the rationale for the principle. [52] The second point taken is that the plaintiff shifted the onus on the defendant yet parties agreed that on both issues the plaintiff bore the onus. The court was urged to dismiss the claim as the plaintiff failed to adduce evidence of what he was paid. He was not a credible witness, he changed his claim at every turn. Analysis [53] As I analysed the evidence in this case what clearly exercised my mind is that the plaintiff was on a hunting expedition, not sure of what he will catch but determined to pursue whatever presented itself. The number of times his claim changed during the proceedings left the court with doubts on the claim. The summons were issued in the sum of US$30 000 then it was US$18 204 at PTC stage and finally it at the close of the hearing the claim stood at US$12 704.00. [54] In fact the US$12 704 finally claimed in the heads of argument was not even supported by evidence. The plaintiff’s evidence was that his claim was now $18 204. [55] Heads of arguments are not evidence and cannot vary the claim made. A litigant cannot nicodemously support a cause that was not even claimed. In Jennifer Nan Brooker v (1) Mudhanda & Anor (2) Adrienne Staley Pierce v Richard Mudhanda & Anor4 the court briefly stated the purpose of heads of argument as follows, ‘The purpose of heads of argument is to expound on the law applicable to the facts placed before the court, and one cannot plead through written submissions. It is also trite that one cannot adduce evidence through heads of argument, but one may do so either in affidavits or viva voce evidence.’ [56] From that dictum, the plaintiff’s heads of argument should have confined themselves to the claim as agreed by the parties at PTC stage and the evidence before the Court. A legal practitioner while preparing heads of argument cannot go on a frolic of his own and expound what was not before the court. Both the evidence and the pleadings did not relate to the US$ 12 704.The approach was wrong. [57] As the proceedings went on, it was apparent that the plaintiff and the defendant had unfinished business. Although the plaintiff provided a service the parties had not reconciled the value of the service. That could explain the different figures thrown by the plaintiff. [58] As a starting point the plaintiff’s case was not supported by documentary evidence. It was alleged that the defendant was the custodian of the documents. There was nothing to stop the plaintiff from obtaining those documents and incorporate them into his case. [59] One may ask why the court then dismissed the application for absolution from the instance. I am aware of the position taken in Mativenga v Lafarge Cement Zimbabwe Ltd5 that to allow a plaintiff to rely on the defendant’s documents is akin to shifting the onus to the defendant to prove its case. That maybe so but I found the circumstances of this case different and required the Court to allow the plaintiff to rely on the documents. The reason is that at PTC stage the parties referred and revised the claim based on the defendant’s documents. By inference the parties were agreed that the documents are a true reflection of payments made. In order to achieve justice between man and man, I was of the firm view that there was no prejudice on the defendant. Little did I know that the plaintiff still had some more surprises. [60] As already stated the initial claim was US$30 000.00 and not US$40 150.00. That the parties agreed that the plaintiff contracted to work for US$40 150.00 would not vary the claim in the absence of an amendment. The claim was later reduced to US$18 204.00 at pre-trial stage. After granting absolution in respect of the Nissan Caravan, it means the defendant’s claim that they agreed on a value of US$12 000.00 was the acceptable value. The plaintiff’s claim was reduced by US$12 000.00 to US$6 204.00. Any other amount claimed would be outside the plaintiff’s claim. A litigant is bound by their pleadings so is the Court. The learned authors Jacob & Golden6 had this say on the rigidity of this principle, ‘For the sake certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without an amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as much bound by the pleadings of the parties as they are themselves’ [61] Speaking of the Court being bound by the pleadings, the Court cannot even grant an order which the parties have not prayed for. It must be guided by the orders sought.See Goodwood Hotels (Pvt) Ltd t/a Cutty Sark Hotel v (1) David Hunzvi (2) 3 Apple International (Pvt) Limited, Rodgers v Chiutsi & Ors. 7 [62] The onus was on the plaintiff to prove that he was paid US$3 940.00 only. This is what the parties agreed at the pre-trial conference. The question is, did he prove the claim particularly in view of the defendant’s plea that the plaintiff was fully paid? When one speaks of the need to discharge an onus, it immediately becomes clear that there is an evidentiary burden that must be met. See the Van Brooker case (supra). [63] In his evidence in chief the plaintiff said he received the following amounts. I reproduce the amounts with reference to the documents before the court, PAGE RECIPIENT AMOUNT REASON 83 L Majuru $500 Wage advance 84 L Majuru $20 Wage advance 85 L Majuru $20 Wage advance 86 L Majuru $30 Wage advance 88 L Majuru $10 Wage advance 90 L Majuru $50 Loan to take sick relative to Murehwa Not signed for 1260 Katuwa $700 Received by Katuwa 126 L Majuru $300 Boss Matemera Total $1630 Cash $2 430.00 then eco-cash $1 510.00 A proper computation of the amounts gives a total of US$5 570.00. [64] The following observations are pertinent, the plaintiff acknowledged receipt of amounts that were counter signed by the recipients. However, it was not explained by the plaintiff why he nit picked amounts on page 126. Page 126 bears different amounts signed for by different people. For instance the US$700.00 admitted as received by Katuwa was not signed for. It bears Katuwa’s name only. [65] There was no evidence that he received the US$2 430.00 cash and the eco-cash transfer of US$1 510.00. The importance of proof other than word of mouth is on credibility. The plaintiff demonstrated an insatiable appetite to vary his claim. So when he mentions bare figures how does the court know that he did not pluck the figures from the air particularly in view of the fact that these amounts were not readily admitted at PTC stage. He only admitted the amounts received in kind by his assistants. [66] The schedule contradicts the plaintiff’s evidence that his assistants were not paid any wages by the defendant. L. Majuru consistently drew his wage allowance from the defendant and the plaintiff conceded that evidence. His viva voce evidence then contradicted the documentary evidence. Documentary evidence is real evidence. I accept the documentary evidence over the viva voce evidence. [67] What probably puts the case to rest is whether the plaintiff proved on a balance of probabilities that he was paid US$3 910.00. The answer is negative. By his own word of mouth, he showed that he was paid US$5 570.00. His claim fails on that basis. [68] I do not believe the defendant bore any onus to discharge. The plaintiff could not shift the onus to the defendant controverting what the parties agreed to. Disposition [69] The plaintiff failed to prove that he was paid US$3 940.00 only in cash or in kind by the defendant. The plaintiff demonstrated that he was paid more than that. It was incomprehensible and without any formulae why he admitted certain countersigned amounts denying some amounts. The plaintiff throughout his case threw figures around varying them here and there. Initially his claim was for US$18 204.00 after the pre-trial conference but at the end of trial in the closing submissions the claim was for US$12 704.00 which was factually unsubstantiated by evidence. [70] On costs, defendant prayed for costs on a higher scale on the basis that the claim is an abuse of court process. Courts are slow to grant costs on a punitive scale lest it discourages litigants to assert and protect their rights and interest. Thus, certain considerations must be made before such a scale of costs is granted. [71] AC Cilliers in The Law of Costs 2nd ed p 66, classified the grounds upon which a court can be justified to award cost on a higher scale as follows, Vexatious and frivolous proceedings Dishonesty of fraud of litigant Reckless or malicious proceedings Litigant’s deplorable attitude towards the court Other circumstances (See also Crief Investments & Anor v Grand Home & Ors HH 12/18, Kadongwe v Muketiwa & Ors HCC3/23). [72] A reading of both authoritative texts and case law shows that courts should award costs on a higher scale in exceptional cases where the degree of irregularities, bad behaviour and vexatious proceedings necessitates the granting of such costs, and not merely because the winning party requested for them. Costs should not deter access to justice they must be an enabler. [73] There was no evidence of abuse of court process as alleged by the defendant and nothing was pointed to as evidence of abuse. Courts exist to deal with disputes and this case presented a dispute. The plaintiff indeed rendered services and indeed parties did not reconcile the figures. His folly was to imagine what he could be owed as balance without proof. His recourse lay in approaching the defendant for a proper reconciliation before approaching the court. That cannot be classified as abuse. People out there do not know what constitutes acceptable proof before the Courts. [74] From the forgoing the claim cannot succeed and there is no valid reason to deviate from the time-honoured principle that costs follow the cause, albeit on an ordinary scale. Accordingly, the claim is dismissed with costs. Sosono & Partners, the plaintiff’s legal practitioners. Danziger & Partners, the defendant’s legal practitioners. 1 S36 thereof. 1 S36 thereof. 2 SC 25/02. 2 SC 25/02. 3 Easy Credit (Pvt) Ltd & Ors v IDBZ SC 85/21, Jowell v Bramwell-Jones 1998 (1) SA 836, Makachi & Ors v ECZ SC 103/22. 3 Easy Credit (Pvt) Ltd & Ors v IDBZ SC 85/21, Jowell v Bramwell-Jones 1998 (1) SA 836, Makachi & Ors v ECZ SC 103/22. 4 SC5/18 4 SC5/18 5 HH533-22 5 HH533-22 6 Pleadings: Principles and Practice @p8-9 6 Pleadings: Principles and Practice @p8-9 7 SC24/24, SC 25/22 7 SC24/24, SC 25/22