ASP MARKETING CC v LUNAR CHICKENS [PVT] LTD and OTHERS (431 of 2025) [2025] ZWHHC 431 (21 July 2025)

ASP Marketing CC v Lunar Chickens [Pvt] Ltd & Ors 11 HH 431-25 HCH 5326-14 ASP MARKETING CC versus LUNAR CHICKENS [PVT] LTD and GIDEON GONO and NEW DONNINGTON HOLDINGS [PVT] LTD and RIMAITIDYE ENTERPRISES [PVT] LTD HIGH COURT OF ZIMBABWE MAFUSIRE J HARARE, 19 & 20 June 2025, 21 July 2025 Date of judgment: 22 July 2025 Civil trial – absolution from the instance F. Mahere, for the plaintiff S. Hashiti, for the defendants MAFUSIRE J [1] This is a determination on the defendants’ application for absolution from the instance. [2] The plaintiff closed its case after the evidence from its single witness, one Selwyn James Vandeyar [“Vandeyar”]. Soon thereafter, the defendants applied for absolution from the instance on the basis that the plaintiff had led no such evidence on either liability or quantum as would oblige them to take the witness stand. [3] The defendants also maintained that the plaintiff had led no evidence on the defendants’ special defences on prescription, illegality of the contracts between the parties, Vandeyar’s alleged lack of authority to prosecute the plaintiff’s claim, misjoinder of the third and fourth defendants [“New Donnington Holdings [Pvt] Ltd” and “Rimaitidye Enterprises [Pvt] Ltd” respectively], and the impropriety of maintaining a claim in foreign currency for a debt that is not a foreign obligation within the meaning of the relevant monetary laws of Zimbabwe. [4] In this suit, the plaintiff is claiming against the defendants, jointly and severally, payment of the sum of US$2 201 044-05, together with interest thereon at the prescribe rate. The claim is for the balance of the purchase price for goods sold and delivered, namely maize grain and soya beans [“the grains”]. [5] The delivery of the grains by the plaintiff to the defendants followed some contracts between the plaintiff and the first defendant [“Lunar Chickens”], duly represented by the second defendant [“Gideon Gono”]. [6] The plaintiff seeks the piercing of the corporate veil for defendants 1, 3 and 4 to make Gideon Gono personally liable for the same debt jointly with these companies. [7] The plaintiff seeks the lifting of the corporate veil as aforesaid on the basis that not only were these companies Gideon Gono’s alter egos, but also that at the material time he conducted their affairs recklessly or fraudulently and misrepresented their true financial standing, to the plaintiff’s detriment. [8] The plaintiff has pleaded unjust enrichment as an alternative cause of action against the defendants on the basis that they received and enjoyed the grains at Gideon Gono’s special instance and request, but that in spite of that none of them agrees to reimburse it, resulting in them being unjustly enriched, and itself being unjustly impoverished. The sum claimed in this regard is said to be the extent of the unjust enrichment of the defendants and concomitantly, the extent of the impoverishment by the plaintiff. [9] The plaintiff is a close corporation registered in, and operating from South Africa. Defendants 1, 3 and 4 are companies registered and operating in Zimbabwe. They have a common shareholding. Gideon Gono was at all material times the Executive Chairman of the group. [10] The defendants raised some special defences. But they also pleaded over to the merits. [11] The defendants’ plea on the merits was that contrary to what appeared to be contracts for the supply and delivery of the grains, the real agreement between the parties was that the plaintiff was buying equity in the first defendant through the supply of the grains. The first defendant would be evaluated. The value of the grains supplied by the plaintiff would be prorated against the first defendant’s net worth. The percentage shareholding would be worked out from there. [12] The defendants aver that the plaintiff’s equity in the first defendant amounted to no more than 1.7%. They deny that they owe the amounts claimed and that instead, the plaintiff has reneged on its agreement to take up equity in the first defendant. [13] The special defences raised by the defendants were these: Prescription: that the plaintiff’s claim had become prescribed;Arbitration: that this court had no jurisdiction to determine the matter on account of the existence of an arbitration clause in the contract in terms of which the parties had allegedly agreed to have any dispute between them resolved by arbitration in South Africa;Illegality: that the contracts between the parties were illegal and void for want of compliance with the exchange control regulations in Zimbabwe.Lack of authority: that the current action had not been authorized by the plaintiff and that Vandeyar had no authority to prosecute the claim on behalf of the plaintiff;Currency of the claim: that following changes in the monetary policies and laws of Zimbabwe at the relevant times, any debt supposedly due to the plaintiff would now be payable in the local currency of Zimbabwe as opposed to the United States dollar, yet the plaintiff was persisting with a claim in United States dollars, and Misjoinder: that defendants 3 and 4 had been improperly cited because the plaintiff had no cause of action against them. [14] Following various pre-trial and case management conferences and case mapping sessions, it was arranged that evidence would be led on the defendants’ special pleas aforesaid. That was done. But only Vandeyar gave evidence on behalf of the plaintiff. The defendants led no evidence. [15] In a comprehensive judgment referenced HH535-23 and delivered on 27 September 2023, I dismissed all the defendants’ special pleas. In the course of the judgment, I made certain findings of fact and law. [16] The defendants appealed my judgment to the Supreme Court. The appeal was dismissed. [17] Following the dismissal of the defendants’ appeal, the trial of the main matter began in earnest on 18 June 2025. As before, Vandeyar gave evidence on behalf of the plaintiff. However, this time around his evidence was truncated. He relied heavily on his previous testimony in the proceedings in respect of the defendants’ special pleas. [18] The defendant’s counsel moved the application for absolution from the instance with gusto. He argued that the plaintiff had not led any evidence on any aspect of the plaintiff’s claim and that it had not produced any document to prove liability or quantum. [19] Counsel pointed out that in spite of the fact that the trial was proceeding in the Commercial Court of the High Court, this was merely for convenience for the reason that I, as the presiding judge seized with the matter, had been deployed from the Civil Division to the Commercial Court after the case had started in the Civil Division, but that the matter remained one in the Civil Division and therefore one governed by the High Court rules, as opposed to the rules of the Commercial Court. [20] Counsel’s major point about the different divisions of the High Court and their rules was that unlike in the Commercial Court where the rules require, among other things, the filing of all the relevant documents at the onset, in the Civil Division, such documents have to be produced through the relevant witnesses. He submitted that this had not been done in this case. [21] If I got him correctly, counsel further submitted that the special plea judgment aforesaid had merely dismissed the special defences that the defendants had raised but that the plaintiff would still be obliged to adduce its relevant evidence in proof of its claims at the trial, and that it had done nothing of the sort. [22] In both his cross-examination of Vandeyar and in his submissions in support of the application for absolution, counsel made much of the plaintiff’s failure or neglect to call one Alida Aletta Craukamp [“Craukamp”], Vandeyar’s co-shareholder and co-director in the plaintiff whom he said had been the only person with legitimate authority to represent the plaintiff and prosecute its claim. He embellished his submission on this point by advising from the Bar that the defendants had subpoenaed, among others, Craukamp to come and testify on behalf of the defendants. [23] Counsel’s main other submission in support of the application for absolution from the instance was in relation to the joint pre-trial conference minute which the parties settled before a judge, in particular, the issues for trial. [24] In summary, the issues agreed to in that joint pre-trial conference minute were in relation to the aforesaid defendants’ special pleas and their defence on the merits. In a nutshell, the parties’ trial issues, evidently settled before a judge in Chambers in accordance with the rules of the Civil Division, were that the plaintiff bore the onus on all the special defences and that the defendants bore the onus on their plea on the merits. [25] The issues on which the defendants bore the onus were cast on the joint pre-trial conference minute aforesaid as follows: “1.2.1 What is the true nature of the agreement between the parties: Is it an equity agreement or its an agreement for the purchase and sale of maize and soya beans. [sic] 1.2.2 Whether or not the Plaintiff is entitled to payment of US$2,201 044.05 and what currency should this amount be paid. [sic] 1.2.3 Whether the second defendant is personally liable for the failure by the First Defendant to pay for the maize and soya beans supplied. 1.2.4 In the alternative whether the Defendants were unjustly enriched.” [26] Counsel’s argument on the joint pre-trial conference minute was that such a document is not a pleading. It does not bind the court, particularly any such admissions as may have been made by a party. [27] Finally, counsel hinged his application for absolution from the instance on the argument by himself that that the plaintiff had led no evidence on the alleged liability of the defendants as joint and several, the basis of uplifting the corporate veil and on quantum, particularly in relation to unjust enrichment as apparently different figures had at different times been plucked from the air. [28] On the other hand, counsel for the plaintiff objected right at the outset to the propriety of the defendants’ application for absolution from the instance given that the onus of proof on the issues with which the court remained seized was squarely on the defendants themselves. She submitted that in the circumstances of this case, the application for absolution from the instance was an irregularity and that the defendants should have been barred from making it. [29] I overruled plaintiff’s counsel’s objection. She then went on to oppose the application on the same ground that, in summary, it was ridiculous that such an application was being made at all in the face of the onus resting on the defendants to prove, among other things, that there existed an equity purchasing agreement. [30] Counsel pointed out that the plaintiff had led all the necessary evidence and produced all the relevant documents during the trial on the special pleas. Furthermore, the judgment on the special pleas aforesaid had conclusively dealt with all the issues the defendants were raising in the application for absolution, except the issue of the alleged equity-debt-swap arrangement which the defendants themselves have to prove. [31] Counsel charged that the application for absolution from the instance was merely a ploy to buy time. She prayed that it be dismissed with costs. [32] Before deciding the defendants’ application for absolution from the instance, I start with judgment number HH535-23 aforesaid which dealt with the defendants’ special defence. Some of my findings or conclusions in that judgment, in paraphrase, were as follows: Between 2009 and 2010 the plaintiff sold and delivered several tonnes of the grains to the first defendant following some contracts. The contract for the supply of maize was verbal. It was concluded in 2009. Delivery followed immediately thereafter. At Gideon Gono’s instruction, delivery was made to a farm near Norton owned by the third respondent, New Donnington Farm. The contract for the supply of soya beans was in writing. It was executed on 11 May 2010. Delivery followed immediately thereafter. On the same day, the parties did conclude another contract in writing for the supply of maize by the plaintiff to the first defendant. But no delivery followed this contract. Therefore, the plaintiff’s claim was in respect of the first maize contract in 2009, which was verbal, and the soya bean contract in May 2010, which was in writing. Out of the entire amount owing on the two contracts, the plaintiff had only received the sum of US$140 000-00. Therefore, this suit was for the balance of the purchase price, or unjust enrichment, in the sums aforesaid. [33] In the course of my judgment on the special plea of prescription, I ruled that there was overwhelming evidence that Gideon Gono had expressly and unequivocally acknowledged the first defendant’s liability to the plaintiff in respect of the deliveries of the grains in 2009 and 2010. I also stated expressly that the correspondence from Gideon Gono to the plaintiff in the form of electronic mail had been produced in evidence and read into court. I specifically highlighted two of such emails. [34] In relation to the special plea of illegality on the alleged breach of the Zimbabwean exchange control regulations, my judgment, after analysing the law, expressly stated that there was nothing in the agreements between the parties, or anything shown by the defendants, that the law had been breached in the respects pleaded. On the contrary, Vandeyar had testified that the first payment had been made out of Gideon Gono’s free funds, or the free funds held by one or other of his companies. The other payment had been made to him locally and in cash. [35] In relation to Vandeyar’s alleged lack of authority, and after certain findings of fact, I ruled that in the absence of the defendants’ own evidence showing how the present proceedings by the plaintiff had been unauthorised, their special plea on this aspect remained a nude objection unworthy of any further consideration besides dismissal. I also pointed out that Vandeyar had testified that he and Craukamp were in the suit together and that the initial resolution to take legal action against the defendants had never been revoked. [36] On the currency of the claim, the judgment says in part that it was an issue that did not in the least stem from the pleadings. But in spite of that finding, I still went on to dismiss this special plea on the basis that it was neither dilatory nor one in bar, that it neither destroyed the plaintiff’s cause of action in any way nor postponed it but that it was just an objection to nowhere. I concluded that in the event that the plaintiff succeeded on liability, the currency of the quantum might still need to be determined. [37] On the alleged misjoinder, the judgment states that the special plea was misplaced as it could not properly be raised as a special plea in this particular matter on account of the fact that the joinder of defendants 3 and 4 to these proceedings had been by way of an order of this court, which was, and still is, extant. By that order, Gideon Gono, New Donnington Farm and Rimaitidye had all been joined as second, third and fourth defendants respectively. [38] Here now is the judgment on the defendants’ application for absolution from the instance. [39] The law on absolution from the instance is an over ploughed field. It is settled. Nothing meaningful can be added except to merely recite the principles. [40] In the South Africa case of Claude Neon Lights [SA] Ltd v Daniel 1976 [4] SA 403[A] the test for absolution from the instance was formulated as follows, at 409G – H: “… … when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might [not should, nor ought to] find for the plaintiff. [Gascoyne v Paul and Hunter, 1917 T.P.D. 170 at p. 173; Ruto Flour Mills [Pty] Ltd v Adelson [2], 1958 [4] SA 307 [T]” [41] I have previously paraphrased the law on absolution from the instance as follows [see Maranatha Ferrochrome [Pvt] Ltd v Riozim Ltd HH482-20: An application for absolution from the instance made by one party, for instance, the defendant, at the close of the case for the other party, i.e. the plaintiff, is a procedure designed to bring a speedy end to the proceedings where there is no evidence warranting the defendant going into its own case. To succeed, the defendant must show that the plaintiff has not established such facts as are supportive of his cause: see Corbridge v Welch (1892) 9 SC 277, or adduced such evidence as to warrant him taking the witness’ stand so as to rebut the plaintiff’s case, or to put across his own case. At this stage the plaintiff’s evidence must be assumed to be true unless very special circumstances exist, such as the inherent improbability of the evidence.Granting absolution from the instance is not the same thing as granting judgment for the defendant. The court is simply absolving or relieving the defendant of the burden of the plaintiff’s case so that he or she does not have to deal with his or her own. Absolution does not decide the matter finally. The plaintiff can go away and still bring back the same case next time but with better evidence. In considering an application for absolution from the instance at the close of the plaintiff’s case, the onus on the defendant to persuade the court, manifestly to make short work of the plaintiff’s case, is much heavier. At this stage, the application is being made when only half the case has been heard. But comparatively, the onus is lighter if the application is made after all the evidence has been led, i.e. at the end of the entire case. The court uses different legal calipers or scales to measure or weigh the cogency of the evidence at these different stages. At the close of the plaintiff’s case, the enquiry is: what judgment might the court give? But at the end of the whole case the enquiry is: what judgment ought the court give? This implies that with “might” the judgment could well be mistaken, and therefore incorrect. But with “ought” the judgment could not be mistaken. It is the correct one: see Supreme Service Station [1969] (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1.The difference between might and ought is the difference between a prima facie case and a case on a balance of probabilities. In other words, at the close of the plaintiff’s case, all that the court looks at is whether the plaintiff’s evidence makes out such a prima facie case as to warrant the defendant taking the witness’ stand. But at the close of the whole case, the court looks at whether the plaintiff has made out such a case on a balance of probabilities as to warrant judgment in its favour. There is a glut of cases on the point. Courts are chary of granting absolution at the close of the plaintiff’s case. They are loath to decide upon questions of fact without hearing all the evidence. As was pointed out in the Supreme Service Station [1969] case above, the practice in South Africa and in this jurisdiction has always been that, in case of doubt as to what a reasonable court might do, a judicial officer should always lean on the side of allowing the case to proceed. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance. [42] In the present case, given the evidence led at the trial of the defendants’ special defences, the judgment of this court thereon and the joint pre-trial conference minute which unequivocally spells out on which party lies the onus or burden of proof on the remaining issues for trial, the application for absolution from the instance is a patent absurdity. [43] The plaintiff led all its necessary evidence in the trial on the defendants’ special defences. Documents were not just filed with the court. The pleadings having been filed in terms of the rules of the Civil Division, documents were subsequently discovered. They were subsequently produced through Vandeyar. [44] The defendants’ plea on the merits is a confession and an avoidance. They admit or confess the grains contracts but seek to avoid them by alleging that these contracts were mere shams designed to mask the real equity-debt-swap agreement between the parties. [45] The single most important issue remaining for trial in this matter is whether or not the grains contracts were a mere sham designed to conceal the real agreement between the parties in terms of which the plaintiff would buy in kind a portion of the equity in the first defendant. It is the defendants who are making these allegations. It is elementary law that in such circumstances the burden to prove them would lie on the defendants. Indeed, the parties did agree that it is the defendants who bear the onus of proof. [46] Counsel for the defendants went to some great lengths to cite numerous cases on absolution from the instance and the nature or status of a joint pre-trial conference minute. But all such case authorities are inapposite and irrelevant. In this case, the defendants must come and prove that the grains contracts were a sham and that the plaintiff is reneging on the agreement to invest in the plaintiff through the supply of the grains. It must be the height of absurdity to seek absolution on an aspect they themselves must prove. [47] It is perhaps because the application for absolution from the instance was incredibly ridiculous that counsel for the plaintiff objected to its being made in the first place. After being overruled and perhaps finding no other plausible explanation for such conduct, plaintiff’s counsel proffered some excuse for the defendants’ counsel’s conduct. She opined that probably it was because the defendants’ counsel had not been involved in the defendants’ special defences that he was making such an application. [48] However, in the light of the full judgment aforesaid, which not only was quite comprehensive, but also was upheld on appeal, the explanation for defendants’ counsel in daring such an application must lie elsewhere, [49] There is no question that the application for absolution from the instance has no merit. It must be a stratagem by the defendants to stall progress of the trial. If true, that is an abuse of the court process. The application is hereby dismissed with costs. The trial of this matter shall resume on a date and time to be advised by the Registrar, 22 July 2025 Chambati, Mataka & Makonese, plaintiff’s legal practitioners Tendai Biti Law, defendants’ legal practitioners ASP Marketing CC v Lunar Chickens [Pvt] Ltd & Ors 11 HH 431-25 HCH 5326-14 ASP Marketing CC v Lunar Chickens [Pvt] Ltd & Ors 11 HH 431-25 HCH 5326-14 ASP MARKETING CC versus LUNAR CHICKENS [PVT] LTD and GIDEON GONO and NEW DONNINGTON HOLDINGS [PVT] LTD and RIMAITIDYE ENTERPRISES [PVT] LTD HIGH COURT OF ZIMBABWE MAFUSIRE J HARARE, 19 & 20 June 2025, 21 July 2025 Date of judgment: 22 July 2025 Civil trial – absolution from the instance F. Mahere, for the plaintiff S. Hashiti, for the defendants MAFUSIRE J [1] This is a determination on the defendants’ application for absolution from the instance. [2] The plaintiff closed its case after the evidence from its single witness, one Selwyn James Vandeyar [“Vandeyar”]. Soon thereafter, the defendants applied for absolution from the instance on the basis that the plaintiff had led no such evidence on either liability or quantum as would oblige them to take the witness stand. [3] The defendants also maintained that the plaintiff had led no evidence on the defendants’ special defences on prescription, illegality of the contracts between the parties, Vandeyar’s alleged lack of authority to prosecute the plaintiff’s claim, misjoinder of the third and fourth defendants [“New Donnington Holdings [Pvt] Ltd” and “Rimaitidye Enterprises [Pvt] Ltd” respectively], and the impropriety of maintaining a claim in foreign currency for a debt that is not a foreign obligation within the meaning of the relevant monetary laws of Zimbabwe. [4] In this suit, the plaintiff is claiming against the defendants, jointly and severally, payment of the sum of US$2 201 044-05, together with interest thereon at the prescribe rate. The claim is for the balance of the purchase price for goods sold and delivered, namely maize grain and soya beans [“the grains”]. [5] The delivery of the grains by the plaintiff to the defendants followed some contracts between the plaintiff and the first defendant [“Lunar Chickens”], duly represented by the second defendant [“Gideon Gono”]. [6] The plaintiff seeks the piercing of the corporate veil for defendants 1, 3 and 4 to make Gideon Gono personally liable for the same debt jointly with these companies. [7] The plaintiff seeks the lifting of the corporate veil as aforesaid on the basis that not only were these companies Gideon Gono’s alter egos, but also that at the material time he conducted their affairs recklessly or fraudulently and misrepresented their true financial standing, to the plaintiff’s detriment. [8] The plaintiff has pleaded unjust enrichment as an alternative cause of action against the defendants on the basis that they received and enjoyed the grains at Gideon Gono’s special instance and request, but that in spite of that none of them agrees to reimburse it, resulting in them being unjustly enriched, and itself being unjustly impoverished. The sum claimed in this regard is said to be the extent of the unjust enrichment of the defendants and concomitantly, the extent of the impoverishment by the plaintiff. [9] The plaintiff is a close corporation registered in, and operating from South Africa. Defendants 1, 3 and 4 are companies registered and operating in Zimbabwe. They have a common shareholding. Gideon Gono was at all material times the Executive Chairman of the group. [10] The defendants raised some special defences. But they also pleaded over to the merits. [11] The defendants’ plea on the merits was that contrary to what appeared to be contracts for the supply and delivery of the grains, the real agreement between the parties was that the plaintiff was buying equity in the first defendant through the supply of the grains. The first defendant would be evaluated. The value of the grains supplied by the plaintiff would be prorated against the first defendant’s net worth. The percentage shareholding would be worked out from there. [12] The defendants aver that the plaintiff’s equity in the first defendant amounted to no more than 1.7%. They deny that they owe the amounts claimed and that instead, the plaintiff has reneged on its agreement to take up equity in the first defendant. [13] The special defences raised by the defendants were these: Prescription: that the plaintiff’s claim had become prescribed; Arbitration: that this court had no jurisdiction to determine the matter on account of the existence of an arbitration clause in the contract in terms of which the parties had allegedly agreed to have any dispute between them resolved by arbitration in South Africa; Illegality: that the contracts between the parties were illegal and void for want of compliance with the exchange control regulations in Zimbabwe. Lack of authority: that the current action had not been authorized by the plaintiff and that Vandeyar had no authority to prosecute the claim on behalf of the plaintiff; Currency of the claim: that following changes in the monetary policies and laws of Zimbabwe at the relevant times, any debt supposedly due to the plaintiff would now be payable in the local currency of Zimbabwe as opposed to the United States dollar, yet the plaintiff was persisting with a claim in United States dollars, and Misjoinder: that defendants 3 and 4 had been improperly cited because the plaintiff had no cause of action against them. [14] Following various pre-trial and case management conferences and case mapping sessions, it was arranged that evidence would be led on the defendants’ special pleas aforesaid. That was done. But only Vandeyar gave evidence on behalf of the plaintiff. The defendants led no evidence. [15] In a comprehensive judgment referenced HH535-23 and delivered on 27 September 2023, I dismissed all the defendants’ special pleas. In the course of the judgment, I made certain findings of fact and law. [16] The defendants appealed my judgment to the Supreme Court. The appeal was dismissed. [17] Following the dismissal of the defendants’ appeal, the trial of the main matter began in earnest on 18 June 2025. As before, Vandeyar gave evidence on behalf of the plaintiff. However, this time around his evidence was truncated. He relied heavily on his previous testimony in the proceedings in respect of the defendants’ special pleas. [18] The defendant’s counsel moved the application for absolution from the instance with gusto. He argued that the plaintiff had not led any evidence on any aspect of the plaintiff’s claim and that it had not produced any document to prove liability or quantum. [19] Counsel pointed out that in spite of the fact that the trial was proceeding in the Commercial Court of the High Court, this was merely for convenience for the reason that I, as the presiding judge seized with the matter, had been deployed from the Civil Division to the Commercial Court after the case had started in the Civil Division, but that the matter remained one in the Civil Division and therefore one governed by the High Court rules, as opposed to the rules of the Commercial Court. [20] Counsel’s major point about the different divisions of the High Court and their rules was that unlike in the Commercial Court where the rules require, among other things, the filing of all the relevant documents at the onset, in the Civil Division, such documents have to be produced through the relevant witnesses. He submitted that this had not been done in this case. [21] If I got him correctly, counsel further submitted that the special plea judgment aforesaid had merely dismissed the special defences that the defendants had raised but that the plaintiff would still be obliged to adduce its relevant evidence in proof of its claims at the trial, and that it had done nothing of the sort. [22] In both his cross-examination of Vandeyar and in his submissions in support of the application for absolution, counsel made much of the plaintiff’s failure or neglect to call one Alida Aletta Craukamp [“Craukamp”], Vandeyar’s co-shareholder and co-director in the plaintiff whom he said had been the only person with legitimate authority to represent the plaintiff and prosecute its claim. He embellished his submission on this point by advising from the Bar that the defendants had subpoenaed, among others, Craukamp to come and testify on behalf of the defendants. [23] Counsel’s main other submission in support of the application for absolution from the instance was in relation to the joint pre-trial conference minute which the parties settled before a judge, in particular, the issues for trial. [24] In summary, the issues agreed to in that joint pre-trial conference minute were in relation to the aforesaid defendants’ special pleas and their defence on the merits. In a nutshell, the parties’ trial issues, evidently settled before a judge in Chambers in accordance with the rules of the Civil Division, were that the plaintiff bore the onus on all the special defences and that the defendants bore the onus on their plea on the merits. [25] The issues on which the defendants bore the onus were cast on the joint pre-trial conference minute aforesaid as follows: “1.2.1 What is the true nature of the agreement between the parties: Is it an equity agreement or its an agreement for the purchase and sale of maize and soya beans. [sic] 1.2.2 Whether or not the Plaintiff is entitled to payment of US$2,201 044.05 and what currency should this amount be paid. [sic] 1.2.3 Whether the second defendant is personally liable for the failure by the First Defendant to pay for the maize and soya beans supplied. 1.2.4 In the alternative whether the Defendants were unjustly enriched.” [26] Counsel’s argument on the joint pre-trial conference minute was that such a document is not a pleading. It does not bind the court, particularly any such admissions as may have been made by a party. [27] Finally, counsel hinged his application for absolution from the instance on the argument by himself that that the plaintiff had led no evidence on the alleged liability of the defendants as joint and several, the basis of uplifting the corporate veil and on quantum, particularly in relation to unjust enrichment as apparently different figures had at different times been plucked from the air. [28] On the other hand, counsel for the plaintiff objected right at the outset to the propriety of the defendants’ application for absolution from the instance given that the onus of proof on the issues with which the court remained seized was squarely on the defendants themselves. She submitted that in the circumstances of this case, the application for absolution from the instance was an irregularity and that the defendants should have been barred from making it. [29] I overruled plaintiff’s counsel’s objection. She then went on to oppose the application on the same ground that, in summary, it was ridiculous that such an application was being made at all in the face of the onus resting on the defendants to prove, among other things, that there existed an equity purchasing agreement. [30] Counsel pointed out that the plaintiff had led all the necessary evidence and produced all the relevant documents during the trial on the special pleas. Furthermore, the judgment on the special pleas aforesaid had conclusively dealt with all the issues the defendants were raising in the application for absolution, except the issue of the alleged equity-debt-swap arrangement which the defendants themselves have to prove. [31] Counsel charged that the application for absolution from the instance was merely a ploy to buy time. She prayed that it be dismissed with costs. [32] Before deciding the defendants’ application for absolution from the instance, I start with judgment number HH535-23 aforesaid which dealt with the defendants’ special defence. Some of my findings or conclusions in that judgment, in paraphrase, were as follows: Between 2009 and 2010 the plaintiff sold and delivered several tonnes of the grains to the first defendant following some contracts. The contract for the supply of maize was verbal. It was concluded in 2009. Delivery followed immediately thereafter. At Gideon Gono’s instruction, delivery was made to a farm near Norton owned by the third respondent, New Donnington Farm. The contract for the supply of soya beans was in writing. It was executed on 11 May 2010. Delivery followed immediately thereafter. On the same day, the parties did conclude another contract in writing for the supply of maize by the plaintiff to the first defendant. But no delivery followed this contract. Therefore, the plaintiff’s claim was in respect of the first maize contract in 2009, which was verbal, and the soya bean contract in May 2010, which was in writing. Out of the entire amount owing on the two contracts, the plaintiff had only received the sum of US$140 000-00. Therefore, this suit was for the balance of the purchase price, or unjust enrichment, in the sums aforesaid. [33] In the course of my judgment on the special plea of prescription, I ruled that there was overwhelming evidence that Gideon Gono had expressly and unequivocally acknowledged the first defendant’s liability to the plaintiff in respect of the deliveries of the grains in 2009 and 2010. I also stated expressly that the correspondence from Gideon Gono to the plaintiff in the form of electronic mail had been produced in evidence and read into court. I specifically highlighted two of such emails. [34] In relation to the special plea of illegality on the alleged breach of the Zimbabwean exchange control regulations, my judgment, after analysing the law, expressly stated that there was nothing in the agreements between the parties, or anything shown by the defendants, that the law had been breached in the respects pleaded. On the contrary, Vandeyar had testified that the first payment had been made out of Gideon Gono’s free funds, or the free funds held by one or other of his companies. The other payment had been made to him locally and in cash. [35] In relation to Vandeyar’s alleged lack of authority, and after certain findings of fact, I ruled that in the absence of the defendants’ own evidence showing how the present proceedings by the plaintiff had been unauthorised, their special plea on this aspect remained a nude objection unworthy of any further consideration besides dismissal. I also pointed out that Vandeyar had testified that he and Craukamp were in the suit together and that the initial resolution to take legal action against the defendants had never been revoked. [36] On the currency of the claim, the judgment says in part that it was an issue that did not in the least stem from the pleadings. But in spite of that finding, I still went on to dismiss this special plea on the basis that it was neither dilatory nor one in bar, that it neither destroyed the plaintiff’s cause of action in any way nor postponed it but that it was just an objection to nowhere. I concluded that in the event that the plaintiff succeeded on liability, the currency of the quantum might still need to be determined. [37] On the alleged misjoinder, the judgment states that the special plea was misplaced as it could not properly be raised as a special plea in this particular matter on account of the fact that the joinder of defendants 3 and 4 to these proceedings had been by way of an order of this court, which was, and still is, extant. By that order, Gideon Gono, New Donnington Farm and Rimaitidye had all been joined as second, third and fourth defendants respectively. [38] Here now is the judgment on the defendants’ application for absolution from the instance. [39] The law on absolution from the instance is an over ploughed field. It is settled. Nothing meaningful can be added except to merely recite the principles. [40] In the South Africa case of Claude Neon Lights [SA] Ltd v Daniel 1976 [4] SA 403[A] the test for absolution from the instance was formulated as follows, at 409G – H: “… … when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might [not should, nor ought to] find for the plaintiff. [Gascoyne v Paul and Hunter, 1917 T.P.D. 170 at p. 173; Ruto Flour Mills [Pty] Ltd v Adelson [2], 1958 [4] SA 307 [T]” [41] I have previously paraphrased the law on absolution from the instance as follows [see Maranatha Ferrochrome [Pvt] Ltd v Riozim Ltd HH482-20: An application for absolution from the instance made by one party, for instance, the defendant, at the close of the case for the other party, i.e. the plaintiff, is a procedure designed to bring a speedy end to the proceedings where there is no evidence warranting the defendant going into its own case. To succeed, the defendant must show that the plaintiff has not established such facts as are supportive of his cause: see Corbridge v Welch (1892) 9 SC 277, or adduced such evidence as to warrant him taking the witness’ stand so as to rebut the plaintiff’s case, or to put across his own case. At this stage the plaintiff’s evidence must be assumed to be true unless very special circumstances exist, such as the inherent improbability of the evidence. Granting absolution from the instance is not the same thing as granting judgment for the defendant. The court is simply absolving or relieving the defendant of the burden of the plaintiff’s case so that he or she does not have to deal with his or her own. Absolution does not decide the matter finally. The plaintiff can go away and still bring back the same case next time but with better evidence. In considering an application for absolution from the instance at the close of the plaintiff’s case, the onus on the defendant to persuade the court, manifestly to make short work of the plaintiff’s case, is much heavier. At this stage, the application is being made when only half the case has been heard. But comparatively, the onus is lighter if the application is made after all the evidence has been led, i.e. at the end of the entire case. The court uses different legal calipers or scales to measure or weigh the cogency of the evidence at these different stages. At the close of the plaintiff’s case, the enquiry is: what judgment might the court give? But at the end of the whole case the enquiry is: what judgment ought the court give? This implies that with “might” the judgment could well be mistaken, and therefore incorrect. But with “ought” the judgment could not be mistaken. It is the correct one: see Supreme Service Station [1969] (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1. The difference between might and ought is the difference between a prima facie case and a case on a balance of probabilities. In other words, at the close of the plaintiff’s case, all that the court looks at is whether the plaintiff’s evidence makes out such a prima facie case as to warrant the defendant taking the witness’ stand. But at the close of the whole case, the court looks at whether the plaintiff has made out such a case on a balance of probabilities as to warrant judgment in its favour. There is a glut of cases on the point. Courts are chary of granting absolution at the close of the plaintiff’s case. They are loath to decide upon questions of fact without hearing all the evidence. As was pointed out in the Supreme Service Station [1969] case above, the practice in South Africa and in this jurisdiction has always been that, in case of doubt as to what a reasonable court might do, a judicial officer should always lean on the side of allowing the case to proceed. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance. [42] In the present case, given the evidence led at the trial of the defendants’ special defences, the judgment of this court thereon and the joint pre-trial conference minute which unequivocally spells out on which party lies the onus or burden of proof on the remaining issues for trial, the application for absolution from the instance is a patent absurdity. [43] The plaintiff led all its necessary evidence in the trial on the defendants’ special defences. Documents were not just filed with the court. The pleadings having been filed in terms of the rules of the Civil Division, documents were subsequently discovered. They were subsequently produced through Vandeyar. [44] The defendants’ plea on the merits is a confession and an avoidance. They admit or confess the grains contracts but seek to avoid them by alleging that these contracts were mere shams designed to mask the real equity-debt-swap agreement between the parties. [45] The single most important issue remaining for trial in this matter is whether or not the grains contracts were a mere sham designed to conceal the real agreement between the parties in terms of which the plaintiff would buy in kind a portion of the equity in the first defendant. It is the defendants who are making these allegations. It is elementary law that in such circumstances the burden to prove them would lie on the defendants. Indeed, the parties did agree that it is the defendants who bear the onus of proof. [46] Counsel for the defendants went to some great lengths to cite numerous cases on absolution from the instance and the nature or status of a joint pre-trial conference minute. But all such case authorities are inapposite and irrelevant. In this case, the defendants must come and prove that the grains contracts were a sham and that the plaintiff is reneging on the agreement to invest in the plaintiff through the supply of the grains. It must be the height of absurdity to seek absolution on an aspect they themselves must prove. [47] It is perhaps because the application for absolution from the instance was incredibly ridiculous that counsel for the plaintiff objected to its being made in the first place. After being overruled and perhaps finding no other plausible explanation for such conduct, plaintiff’s counsel proffered some excuse for the defendants’ counsel’s conduct. She opined that probably it was because the defendants’ counsel had not been involved in the defendants’ special defences that he was making such an application. [48] However, in the light of the full judgment aforesaid, which not only was quite comprehensive, but also was upheld on appeal, the explanation for defendants’ counsel in daring such an application must lie elsewhere, [49] There is no question that the application for absolution from the instance has no merit. It must be a stratagem by the defendants to stall progress of the trial. If true, that is an abuse of the court process. The application is hereby dismissed with costs. The trial of this matter shall resume on a date and time to be advised by the Registrar, 22 July 2025 Chambati, Mataka & Makonese, plaintiff’s legal practitioners Tendai Biti Law, defendants’ legal practitioners