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Judgment

5 HH 432 -25 HCH 9063/14 JAN FREDRICK KOTZE versus WAYNE PARHAM and CREDFIN (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 2, 4 June 2025 & 21 July 2025 Civil trial - Absolution from the Instance R Magundani with her T Kachara, for the plaintiff D Ochieng, for the 1st and 2nd defendants DEMBURE J: INTRODUCTION [1] This civil trial commenced on 2 June 2025 and was adjourned to 4 June 2025. The plaintiff testified in his own case. At the close of the plaintiff’s case, the defendants applied for absolution from the instance. The application was made in terms of rule 56(6) of the High Court Rules, 2021 and was opposed by the plaintiff. BACKGROUND FACTS [2] The plaintiff is Jan Fredrick Kotze, a male adult. The first defendant is Wayne Parham, also a male adult. The second defendant is Credfin (Private) Limited, a company duly registered in accordance with the laws of Zimbabwe. [3] On 14 October 2014, the plaintiff instituted an action in this court against the defendants. The plaintiff’s claim for restitution reads as follows: “a. From the second defendant, payment of the sum of US$149,000.00 and interest thereon at the prescribed rate with effect from 28 October 2011 to date of full payment and costs of suit. Alternatively, b. From the first defendant, payment of the sum of US$149,000.00 and interest thereon at the prescribed rate with effect from 28 October 2011 to date of full payment and costs of suit. Alternatively, c. From the first and second defendants jointly or severally, the one paying the other to be absolved, payment of the sum of US$149,00.00 and interest thereon at the prescribed rate with effect from 28 October 2011 to date of full payment and costs of suit.” [4] The plaintiff’s claim is founded on the ground that he entered into an agreement with the second defendant, or alternatively, if it is held that the first defendant had no authority, with the first defendant, in terms of which he deposited the sum of US$149,000.00 with the second defendant. He averred that it was a term of the agreement that the defendants would hold the money in trust for the account of the plaintiff. [5] The plaintiff further stated that in terms of their agreement, the first defendant would deposit the funds with the second defendant on behalf of the plaintiff. It was also averred that it was agreed that the funds would be payable to him on demand. The plaintiff submitted that at all material times, the first defendant was an officer or employee and agent of the second defendant. That the agreement was entered into at the second defendant’s business offices. The plaintiff also pleaded that the second defendant, or alternatively the first defendant or alternatively both defendants jointly, in breach of the agreement, failed, neglected and/or refused to repay the funds upon demand. In the alternative, it was further pleaded that the defendants or alternatively either the first or second defendants, were unjustly enriched at his expense. The plaintiff’s claim was as amended as per the amended declaration filed on 24 September 2015. [6] It is common cause that on 28 October 2011, the plaintiff paid the sum of US$149,000.00 to the first defendant. [7] The defendants contested the claim. The defendants, in their plea, as amended, denied each allegation of fact made and each conclusion of law contained in the plaintiff’s amended declaration. The first defendant averred that in November 2011, the plaintiff purchased a farm situated in Mashonaland West Province from one Daniel Hartman (“Mr Hartman”). It was averred that it was a term of the plaintiff’s agreement that the plaintiff would pay Mr Hartman the sum of US$149,000.00, being part payment of the purchase price. [8] The first defendant contended that by agreement between the plaintiff and Fox & Carney (Private) Limited (the estate agent which acted for Mr Harman), the estate agent appointed him as an escrow agent for the transmission of the funds from the plaintiff to Mr Hartman. He averred that he faithfully executed his mandate in that regard and remitted the entire US$149,000.00 to Mr Hartman as directed. He did not act in any capacity as the officer of the second defendant in accepting the appointment and executing his mandate as the escrow agent. The defendant denied ever entering into any contract with the plaintiff or having incurred any liability to him. [9] The second defendant averred that it was not a party to the dealings between the plaintiff and the first defendant. That the first defendant did not represent the second defendant. It never transacted with the plaintiff and had no agreement with him. It further denied having ever received any money from the plaintiff and being enriched from his estate. The defendants further contended that in the case number HC 7401/13, the plaintiff claimed the sum from the first defendant arising from the same transaction and the plaintiff pleaded the matters set out in para 2 of the first defendant’s plea and further that Mr Hartman failed to pass transfer of the farm that the plaintiff bought from him. The claim was withdrawn. The defendants further contended that the plaintiff withdrew the claim tacitly accepting the futility of proceeding against anyone other than Mr Hartman. They argued that the claim is founded on a deliberately false portrayal of the dealings between the parties and is mala fide. Consequently, they prayed for the dismissal of the claim with costs on a higher scale. The plaintiff, in his replication, denied all the averments by the defendants. [10] After the close of pleadings, the parties filed their pre-trial conference documents. The matter was referred to trial on issues set out in the parties’ joint pre-trial conference minute. The record was then placed before me for trial. On 2 June 2025, the trial commenced. On 4 June 2025, the defendants notified the court of their intended application for absolution from the instance at the close of the plaintiff’s case. The court then issued a case management order directing the parties to file their submissions in writing by the specified dates. The parties agreed that the court would proceed to determine the application on the basis of the written submissions. On 9 June 2025, the defendants filed this application through their legal practitioners, while the plaintiff also filed his response on 13 June 2025. The defendants went on to file their replying submissions on 17 June 2025. SUBMISSIONS MADE BY THE PARTIES [11] It was the defendants’ submission that the plaintiff failed to establish a prima facie case against them. The defendants argued that the plaintiff failed to prove the terms of the agreement and the capacity that he pleaded. Mr Ochieng argued that the plaintiff’s declaration pleads an imagined contract between him and one or both of the defendants, but his evidence was an account of an actual transaction between him and Mr Hartman. Counsel argued that under examination, when asked as to why they were here, the plaintiff related to how he responded to an advert announcing the sale of the farm. The plaintiff failed to prove the case he had pleaded. [12] Mr Ochieng argued that the plaintiff testified that a key term of what was agreed was that he was to pay a deposit as proof of commitment in the sum of US$150,000.00 and that he was uncomfortable paying it to the estate agent or the seller’s lawyer. Further, it was submitted that the plaintiff testified that the estate agent suggested to him that he could pay the funds to the second defendant and the first defendant in particular. The plaintiff testified that he wished for the funds to be in a trust account, which he alone would have access to and from which he would only pay upon a signed agreement of sale. Counsel argued that the receipt, which was Exhibit 1, does not mention the second defendant. [13] Counsel submitted that it was only after the seller’s lawyer informed him that the farm had been acquired that the plaintiff made enquiries that he was able to recount. He argued that the plaintiff led evidence to the effect that the seller’s lawyer informed him that the farm had just been acquired and no sale could go through. Mr Ochieng further submitted that it was the evidence of the plaintiff that that is the time when he requested his money back and that is when he was told that some of the money had been used to pay the agent’s commission and the rest had been remitted to the seller. It was argued that this evidence was false as the plaintiff was departing from his pleadings. This should weigh in favour of the grant of absolution. [14] Mr Ochieng submitted that the plaintiff’s case consciously omitted the real starting point, as he, under cross-examination, admitted that it would be wrong to claim, as the declaration effectively does, that he approached the first defendant at random. Counsel submitted that the plaintiff is dishonest as his declaration is inconsistent. He relied on the case of Keavney & Anor v Msabaeka Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S) at 608A-E. [15] It was submitted that there was indeed a contract of sale between the plaintiff and Mr Hartman, as per the testimony of the plaintiff, and therefore his claim is against the seller. Counsel submitted that it was the evidence of the plaintiff that he prepared to take over the farm, which means that the payment was made. It is further submitted that the contract was never cancelled, and the plaintiff confirmed that pursuing his remedies against the seller would have been costly and uneconomic. The conclusion is that this claim has been misdirected to a stranger out of frustration. [16] Mr Ochieng also argued that the plaintiff’s remedy, if he has any, lies against the only person with whom his evidence shows him to have contracted, and it cannot arise from an imaginary contract. Further, he submitted that the plaintiff admitted that there was no definitive discussion with the first defendant regarding payment of interest. Admitting the absence of this discussion is admitting the absence of the contract of deposit itself. The defendants are under no obligation to the plaintiff, and he has sued the wrong parties. Further, counsel argued that the evidence of the plaintiff did not reveal any link between the second defendant and the plaintiff. Even the receipt of payment only mentions the first defendant. There was no correspondence with the second defendant at any given time. The defendants prayed for absolution from the instance with costs on a legal practitioner and client scale. [17] On the other hand, counsel for the plaintiff argued that the defendants’ application for absolution is predicated on a fundamental misconception of the legal principles governing such an application. It was submitted that the plaintiff established a prima facie case. Counsel argued that absolution from the instance is a drastic remedy that is only granted in exceptional circumstances, where the plaintiff’s case is so weak that it would be unfair to require the defendant to proceed with its defence. This is not the case. The test for absolution is whether the evidence presented is so lacking in credibility or probative value that no reasonable court would find in favour of the plaintiff. [18] It was further submitted that in this case, the plaintiff has a valid claim against the defendants to which they must answer, and the core of the matter is reflected in the plaintiff’s declaration. The money was held in trust as per the agreement and was to be remitted upon the plaintiff’s request. Further, counsel submitted that the defendants were not involved in the sale of the property whatsoever, their sole obligation being to act as trustees for the holding of funds. His evidence corroborated his declaration and, therefore, he set a prima facie case against the defendants. It was the plaintiff’s testimony that he was introduced to the defendants by Adele Rowe, who was the agent, and this was never challenged under cross-examination. Counsel argued that it was the plaintiff’s testimony that the defendants were necessitated by the need to have a third party hold the commitment fee of US$150,000.00, which had been requested by the sellers. [19] Counsel further argued that it was the testimony of the plaintiff that the money was never paid to the seller or his legal practitioner. The defendants’ allegation that the money was paid was, therefore, untrue. It was also submitted that it is not in dispute that the first defendant received US$149,000.00 from the plaintiff as per Exhibit 1 and that he was to deposit the money with the second defendant. Counsel also argued that the money was counted by another employee of the second defendant, which means that two employees of the second defendant participated, and this was not challenged under cross-examination. It was never challenged that all meetings, including the payment, were held at the offices of the second defendant at 9 Birchenough Road, Alexandra Park. At all material times, there was no separation of the first and second defendants. [20] It was further argued that it was not clear as to whether the first defendant, after receiving the funds, failed to pay over to the second defendant, or the second defendant received the funds and is refusing to release them on demand. Counsel argued that what happened is within the exclusive knowledge of the defendants, and they must deal with the position, each attending to either of the possibilities raised against them. The defendants’ assertion that the funds were disbursed to Mr Hartman had not been backed by evidence, as the plaintiff had not been provided with documentary evidence substantiating that instruction. The defendants must tell the court what they did with the plaintiff’s money. Counsel relied on the case of Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC 58/19, where the Court held that before granting this kind of application, the court must be satisfied that there is no evidence before it which a reasonable court might find for the plaintiff. [21] It was also argued that this application is a tactic to delay and an abuse of court process. Counsel submitted that the defendants insist on drawing the attention of the court to the case in HC 7401/13, which is not the case before this court, nor is it a referenced case. The withdrawal of that case does not signal that the plaintiff did not have a cause of action against the defendants in any way. In that case, the defendants raised an exception to the summons and the defendants cannot change that position and rely on the same pleadings when they said they were inarticulately drafted. They cannot approbate and reprobate. The plaintiff prayed for the dismissal of this application with costs on a punitive scale on the basis that the defendants filed this application even though the plaintiff has a proper claim and provided evidence for it. [22] In their response, the defendants argued that each of the questions that the plaintiff held out as calling for answers had already been answered in his own evidence. Counsel argued that Mr Hartman received the funds and that both he and the plaintiff benefited from it. Further, it was argued that there was a legally binding agreement between Mr Hartman and the plaintiff and that some of the money was used as agent’s commission. ISSUE FOR DETERMINATION [23] The sole question for determination is whether the plaintiff has established a prima facie case against the defendants. THE LAW [24] The law is clear on the test applied when an application for absolution from the instance is made at the close of the plaintiff’s case. The test is whether there is evidence upon which a court acting reasonably could or might find for the plaintiff. This means that the enquiry is whether a plaintiff has made out a prima facie case by adducing evidence to prove all the essential elements of the claim entitling the court to find for him at that stage. The law applicable in an application of this nature was restated in Mazibuko v Santam Insurance Co Ltd and Anor 1982 (3) SA 125 (AD) at 133H, where the court said: “In an application for absolution made by the defendant at the close of the plaintiff's case the question to which the Court must address itself is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff; in other words whether plaintiff has made out a prima facie case.” [25] See also in NMB Bank Limited v Formscaff (Pvt) Ltd & Ors SC 31/22 at pp 14-15, where Guvava JA had this to say: “The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) at pg 343 the Court held that: “The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.” (see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)). In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA) at 92 E-93 A it was held that: “The test for absolution to be applied by a trial court at the end of plaintiff’s case was formulated in Claude neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms‘… when absolution from the instance at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff established 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 or ought) find for the plaintiff…’This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…” 32. Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff’s case who fails to prove a prima facie case. A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows: “Prima facie evidence in its more usual sense, is used to mean prima facie proof of an issue the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…” EXAMINATION [26] The question that this court has to determine is whether the plaintiff has proved a prima facie case against the defendants or whether he adduced evidence upon which a reasonable court might find for him at this stage. There is, therefore, need to interrogate whether he adduced evidence establishing the essential elements of his claim that entitle the court to find for him at this stage. [27] In this case, the plaintiff’s main cause of action is founded on an agreement. The court must ascertain whether there was an agreement, and if the answer is yes, then who were the parties to the agreement. In para(s) 4-6 of the plaintiff’s amended declaration, he pleaded that he entered into an agreement with the second defendant. He went on to say that he deposited US$149,000.00 to the second defendant through the first defendant. He also stated that it was a term of the agreement that the second defendant would hold the funds in trust for the plaintiff, and the funds would be repayable on demand. In the alternative, he pleaded that if the first defendant had no authority to act for the second defendant or that he did not enter into the agreement on behalf of the second defendant, the agreement was only between him and the first defendant. The relief that the plaintiff seeks is for the payment of the sum of US$149,000.00 from the defendants, or alternatively, from either the first or second defendant. [28] The plaintiff’s case was, therefore, that he concluded an agreement with the second defendant, who was represented by the first defendant, or alternatively with the first defendant. The agreement was that the second defendant, or alternatively the first defendant, would hold the money in trust and avail the money to him upon demand. The question that arises is whether he has established a prima facie case that there was an agreement entered into with the second defendant or the first defendant in the alternative. It is trite that for a contract to exist, there must be a meeting of the minds regarding the subject matter. In other words, there must be an offer and an acceptance. The legal position was remarkably explained by Dube J (as she then was) in Delta Beverages (Pvt) Ltd v Pyvate Investments (Pvt) Ltd & Anor HH 135/18, where she said: “Generally, oral contracts are enforceable and do give rise to valid contractual relationships. The oral contract, sometimes referred to as the invisible contract, is one of the most difficult to prove. What makes this so is the lack of hard evidence of the existence of the contract. The essentials of a verbal contract are the same as those of a written contract. There must be offer and acceptance of the contract, existence of consideration [the position is now settled that the doctrine of consideration is not part of our law of contract: Christie, The Law of Contract in South Africa, 5ed (2006) 8-10], the parties must have the capacity to enter into the contract and the parties must intent to enter into the contract and create a binding legal relationship. The courts will not endorse an oral agreement where any of the essential elements of a valid contract have not been proved. The terms of the oral contract must be proved and there must be agreement and understanding of the terms of the contract by the parties. An oral contract that meets all the requirements of a contract is binding on the parties and gives rise to a legally enforceable relationship. There must be a meeting of the minds or a reasonable belief by the parties that there is consensus. A party who alleges the existence of an oral contract has the onus to prove the existence of the contract on a balance of probabilities. In South African Railways and Habours v National Bank of South Africa 1924 AD 704 at 715, the court stated: “The law does not concern itself with the working of the minds of the parties to a contract, but with the external manifestations of their minds. Even therefore if from a philosophical standpoint the minds of the parties do not meet, yet, if by their acts their minds seem to have met, the law will, where fraud is not alleged, look to their acts and assume that their minds did meet and that they contracted in accordance with what the parties purport to accept as a record of their agreement.” A contract may be enforceable where there is evidence of the existence of the contract which may include evidence of performance of the contract and reliance on the agreement by the parties. There are cases where the contract itself has not been made perfecta by the signing of the agreement by the parties. Where the acts and conduct of the parties reveals that the minds of the parties have indeed met, the court will not hesitate to confirm the contract. A party alleging the existence of a contract in such circumstances must lead evidence to demonstrate the existence of the contract and the parties’ understanding of the contract. Documentary evidence such as emails, faxes, showing the intention of the parties and dealings between the parties after the alleged contract was entered into serve to confirm the existence of the contract.” [29] The plaintiff in his summons and declaration does not specify whether the agreement he entered into was verbal or written. However, in his evidence in chief, he stated that the agreement was never reduced to writing. It was verbal. As stated in the Delta Beverages (Pvt) Ltd case, verbal contracts are equally legally binding and enforceable as written contracts, but they present more challenges to the litigants to establish them or their terms. The question that arises would be whether there was a verbal agreement between the plaintiff and the second defendant, represented by the first defendant or alternatively, between the plaintiff and the first defendant and the terms of such contract? [30] The plaintiff testified that when he approached the defendants, there was supposed to be a written agreement, but when he arrived at their offices, the first defendant was preparing to leave the office, as it was late in the afternoon. He stated that he left the money with the first defendant after getting an acknowledgement of receipt from him (Exhibit 1). The plaintiff also stated that he never got the written agreement, but the money was accepted by the first defendant as a deposit in terms of the agreement he had. It was not challenged that the plaintiff paid the sum of US$149,000.00 to the first defendant, who accepted it. This is also proved by Exhibit 1, which is the acknowledgement of receipt signed by the first defendant. It is, therefore, an admitted fact that the first defendant received the said sum of US$149,000.00 from the plaintiff. What is in dispute is in what capacity he received the funds and the terms of the alleged agreement requiring that such payment should be made, and how it would be paid out. [31] It was the evidence of the plaintiff that he responded to an advert for the sale of a farm and was requested to make an offer. The plaintiff testified that he was to pay US$150,000.00 to show commitment to the sale, and that he was not comfortable paying it to the seller’s lawyer, Mr Stonier or his estate agent, Adele Rowe. The seller was Mr Hartman, who was based in New Zealand at the time. It was his evidence that the estate agent referred him to a third-party consultant company that was represented by the first defendant. He stated that he was comfortable dealing with them because he was familiar with the first defendant’s surname, as he knew it, and that is why he gave them the money. He also stated that he went to the offices of the second defendant and met the first defendant. The plaintiff also stated that the money was counted by the first defendant and another employee of the second defendant, and that he expected a written agreement, which never materialised. He further stated that the terms of their agreement were that the defendants had to hold the funds in trust for him and would repay it on demand upon the conclusion of an agreement of sale. [32] While in his pleadings he did not disclose the underlying contract of sale or the background to the alleged contract with the defendants, that per se should not be the basis to discard his evidence at this stage. I admit that the declaration was not elegantly drafted, but it still captures the underlying contractual foundation of his claim. The failure to give a background to the contract he pleaded cannot be fatal. He testified and maintained the same story under cross-examination that the defendants, in terms of their verbal contract, were merely to hold the funds for him in trust and they would repay the money on demand. He claimed that the sale of the farm did not materialise and that he did not give the defendants any instructions to pay out the funds to anyone else. According to him, it was a term of the contract that the funds were to be held on his own account and would remain available to his disposal. He said he did not instruct the defendants to make any payment of the funds, but to repay it to him, but they failed to do so, hence this suit. [33] As regards the first defendant, there is no dispute that he received US$149,000.00 from the plaintiff. What is in dispute is in what capacity he received the funds and the terms of that deposit. The plaintiff, under cross-examination, maintained that there existed a verbal contract for that payment to be made to the first defendant. Indeed, the funds were paid to the first defendant as admitted. No evidence is required to prove what has been admitted. The law on the effect of an admission was restated in Manyenga v Petrozim (Pvt) Ltd SC 40/23, where the Supreme Court stated that: “32. The effect of an admission has been held to be the following in the case of Potato Seed Production (Proprietary) Ltd v Princewood Enterprises (Pvt) Ltd & Ors HH 45-17 at p 4; “Indeed the effect of an admission is settled law. Once made it binds its maker with the attendant consequences see Kettex Holdings P/L v S Kencor Management Services P/L HH 236-15.” 33. The consequences of making an admission which is not withdrawn is that it will not be necessary to prove the admitted fact(s): Adler v Elliot 1988 (2) ZLR 283 (S) at 288C. In addition, this Court, in the case of Mashoko v Mashoko & Ors SC 114-22, held that: “The law on admissions in pleadings and indeed in evidence, is also settled. A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party would have made. By equal measure, a party is not permitted to attempt to disprove admissions made.” [34] The plaintiff’s evidence, which he maintained even under intense cross-examination, was that the terms of the contract he had with the defendants required him to pay the said amount. The amount indeed was paid and received by the first defendant. He further insisted that it was to be held in trust with the second defendant and payable on demand. In my view, he established a prima facie case as against the first defendant, who did not dispute that he received the said amount. While he alleged some other terms of the contract he had not with the plaintiff but the estate agent, I am constrained at this stage, without having heard from the first defendant, to assess the probabilities regarding the exact nature of their agreement and the terms thereof. I must exercise extreme caution since I have only heard from the plaintiff. The court cannot, therefore, assess the probabilities after having listened to one side of the story: that is, from the plaintiff alone. Thus, in Bakari v Total Zimbabwe (Pvt) Ltd SC 21/19, Guvava JA reiterated the cautious approach the court must take in dealing with the plaintiff’s evidence at this stage by saying as follows: “In deciding what a court may or may not do, there is an implication that the court may make an incorrect decision, because at the close of the plaintiff’s case, it will not have heard all the evidence. In the case of Nobert Katerere v Standard Chartered Bank Zimbabwe Limited HB 51-08, the court stated: “The court should be extremely chary of granting absolution at the close of the plaintiff’s case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim-Claude neon Lights (SA) Ltd v Daniel 1976 (4) SA 403(A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26(A); Sithole v PG Industries (Pvt) Ltd HB 47-05”. [35] Applying the above principles, the defendants’ argument in calling upon the court to discard the evidence of the plaintiff entirely at this stage would be legally untenable. I am not satisfied that there are special circumstances for the court to treat his evidence as entirely and inherently unreliable. With the admission by the first defendant that he received the said sum of US$149,000.00 and the plaintiff’s evidence that it was for a specific purpose and that the funds remained at his disposal until he made the payment instructions, in my view, he has set out a prima facie case as against the first defendant. The first defendant must, therefore, state what he believes were the terms of the verbal contract and with whom he concluded the agreement. He must disclose what he did with the money and the terms of the agreement under which he alleged he acted as an escrow agent for the seller through the estate agent. What is clear at this stage is that he received the said funds from the plaintiff and the funds related to the purchase and sale of the farm between the plaintiff and the said Mr Hartman, which was managed through the estate agent, Fox & Carney. If he cannot be held liable to repay the amount to the plaintiff based on what he said was a contractual relationship he had with the estate agent, and that he duly performed his mandate by paying the sum to Mr Hartman, it is upon him to prove that assertion or special defence. The general principle of the law is that he who makes an affirmative assertion, whether the plaintiff or defendant, bears the onus of proving the facts so asserted. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) at 459; Astra Paints Chemical v Chamburuka SC 27/12; Book v Davidson 1988 (1) ZLR 365 at 384 B-F. In Nyahondo, supra, Korsah JA held that: “Where a person against whom a claim is made is not content with a mere denial but sets up a special defence or raises a fresh issue (when he confesses and avoids) then he is regarded in respect of that defence as being the claimant; for his defence to be upheld he bears the onus of satisfying the court that he is entitled to succeed on it.” In the premises, the first defendant ought to be put to his defence. [36] The mere fact that the plaintiff withdrew the case under HC7401/13 is not, in my view, conclusive at this stage, nor can it be said that, because of that, the plaintiff has failed to establish a prima facie case against the first defendant. A litigant is at liberty to withdraw a case at any time before trial. A tactical withdrawal is permissible. However, the probabilities of the whole case, while it may also be viewed in the context of the manner the plaintiff had pleaded his case in court and the one withdrawn, that assessment can only properly be done once all parties have led evidence. The court cannot use the material differences to discard the plaintiff’s evidence, as it must be accepted at this stage as the truth unless inherently unreliable in the special circumstances of the case. See the Bakari case, supra. [37] The witness further said that the sale could not proceed after the farm was acquired by the State. Of course, there are some discrepancies in the descriptions of the farm and the details of the owner in the Government Gazette and those in the title deed. This does not, however, detract from his testimony that he was informed by the seller’s lawyer that the transaction could not proceed following the compulsory acquisition. While, if one considers the offer form, it may be argued that the acceptance of the offer created a contract of sale and came with it the obligation to pay the deposit of $150,000.00, the role of the first defendant in the whole transaction was depicted by the plaintiff as being one based on a separate contract and simply meant to facilitate that the funds are held in trust pending the conclusion of the sale. The plaintiff said that the reason for this was that he was not comfortable paying the money to the seller’s agent or his lawyer. The plaintiff’s evidence was further that the sum of US$149,000.00 was paid as a commitment fee and was to be held in trust pending the conclusion of the sale. According to him, the funds remained subject to his further instructions and repayable on demand. The first defendant’s defence was that his contract was with the agent to facilitate the payment of the money from the plaintiff to the seller. He stated in his plea that he executed that faithfully. He alleged he paid the seller. Whether he paid the amount he received from the plaintiff to Mr Hartman and the terms under which he did so remain part of what the court is called upon to decide on probabilities. The factual disputes in casu cannot be resolved without the evidence of the first defendant, as he raised a special defence. [38] It would be improper at this stage to discard the plaintiff’s evidence and accept the first defendant’s version of defence, put only in cross-examination of the witness, and was refuted. The special defence can only be established by the first defendant testifying. I am, therefore, of the view that as against the first defendant, the plaintiff has managed to establish a prima facie for reimbursement in the main or alternatively under unjustified enrichment. [39] As regards the second defendant, I am not satisfied that there was prima facie evidence establishing a verbal agreement with the second defendant. In the testimony of the plaintiff, there was nothing to show the involvement of the second defendant or that the first defendant acted as a duly authorised representative of the company in the transaction. The plaintiff admitted in cross-examination that he never received any paperwork or documents from the second defendant to show that the company was involved. There was no correspondence either in letters, emails or telephonic records showing the existence of such verbal contract. The plaintiff himself admitted that he only met the first defendant at the second defendant’s offices. He said that on the date he made the payment, he met him in the corridors when everyone was about to leave the office. There was an unnamed secretary whom he alleged assisted the first defendant in counting the money. Again, Exhibit 1 or the receipt thereof did not even originate from the second defendant or show that it was from the company or that the first defendant signed it on behalf of the second defendant. It does not in any way link the second defendant to the transaction. The witness himself also conceded that he did not follow up with the company for any paperwork. [40] Nothing was further disclosed after the payment, which would draw the company into the whole transaction and with it the liability to repay the funds paid to the first defendant. Even unjust enrichment does not arise where it has not been shown that the second defendant was involved or received the funds in the first place or that it acted through the first defendant. It would be improper in my view to put the second defendant to its defence in the circumstances. The law is clear that he who alleges must prove. In Dube v Murehwa SC 68/21 at p10, the Supreme Court aptly remarked as follows on the impact of failure to adduce adequate evidence to one’s claims: “The law is clear that bald and unsubstantiated allegations do not establish a litigant’s purported or announced position. See Akhtar v Minister of Public Commission SC 173/97. …” See also ZIMASCO (Pvt) Ltd v Tsvangirai & Ors SC 12/20 at p 12, where GUVAVA JA remarked that: “It is trite that “he who alleges must prove”. The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination. I share the sentiments expressed in Delta Beverages (Pvt) Ltd v Murandu SC 38/15, where it was stated that: “I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.”” Similar remarks were expressed in Astra Industries Ltd v Chamburuka SC 27/12, that: “The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation. This position has been affirmed by this Court. In Book v Davidson 1988 (1) ZLR 365 (S) at 384 B-F, DUMBUTSHENA CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965 (2) SA 706 AD at 711 E-G: “The general principle governing the determination of the incidence of the onus is the one stated in the Corpus iuris simper necessitas probandi incumbitilli qui agit. In other words he who seeks a remedy must prove the grounds therefore.” [41] In casu, there was no evidence documentary or otherwise upon which any reasonable court might accept that the second defendant was a party to the alleged agreement or that it was enriched unjustly at the expense of the plaintiff. It was not established that the first defendant acted as its agent or officer in the transaction. The mere fact that the plaintiff met with the first defendant and paid the sum to him at the second defendant’s premises does not, on its own, establish that the company was involved or that it was a party to the agreement. There was no evidence that the first defendant was acting on behalf of the second defendant. There was also no proof that the second defendant received any funds from the plaintiff. I have no option in the circumstances but to conclude that there was no agreement between the plaintiff and the second defendant. There was also nothing to render the second defendant liable to the plaintiff on the basis of the principle of unjust enrichment. The essential elements of the plaintiff’s claim against the second defendant, as pleaded both in the main and alternative, were not established. [42] The plaintiff failed to prove that there was any relationship between him and the second defendant, and, therefore, the application for absolution from the instance succeeds against the second defendant. However, what is clear from the testimony of the plaintiff is that money was given to and received by the first defendant. He alleged that he suffered prejudice in that regard as he parted with US$149,000.00 which was not refunded. He, therefore, claimed that he is entitled to get it back. The plaintiff was consistent in his testimony that he gave the money to the first defendant in trust and that he was the only one who was to access the money. There is no reason for the court to disbelieve him at this juncture. [43] Further, Exhibit 1 confirms the plaintiff’s case that he paid the money to the first defendant. The first defendant, in turn, did not deny that he received the funds. He, however, alleged a different contract and that he paid the funds in terms of his mandate to the seller, Mr Hartman. Arising from the plaintiff’s testimony, if the first defendant received the money and the plaintiff was the only one to have access to the money, then where did the money go? Was the first defendant instructed otherwise to pay out as he allegedly did, and on whose mandate? Further, did he even pay out the funds at all to anyone else? These critical questions can only be answered if the first defendant is put to his defence. The plaintiff managed to satisfy the elements of his claim for restitution. He established a prima facie case of there being an agreement and/or for unjust enrichment entitling him to the relief sought against the first defendant. Consequently, there is need for the first defendant to rebut the plaintiff’s evidence and be put to his defence. DISPOSITION [44] The court is not satisfied that the plaintiff established a prima facie case against the second defendant. The application for absolution from the instance by the second defendant ought to succeed as it is merited. As regards costs, there is no reason to depart from the general rule that costs shall follow the event. No special circumstances exist to justify an order for punitive costs against the plaintiff as prayed. The plaintiff failed to prove its allegations, which remained bald, but its claim cannot be considered an abuse of the court process. There is also no conduct warranting such an order. [45] As regards the application for absolution from the instance by the first defendant, I am satisfied that the plaintiff established a prima facie case against him. The money was handed over to the first defendant, who in turn accepted the payment. The plaintiff’s evidence was that the payment was made in terms of an agreement. The relief for restitution was anchored on the agreement that the plaintiff said he had. In the alternative, the plaintiff’s case is that he was unjustly enriched at his expense and that he must be ordered to repay the funds. The first defendant must, therefore, be put to his defence to explain what he did with the money and prove the contract he alleged entitled him to deal with the money as he allegedly did. Whether he paid out the funds to the seller or not is within his personal knowledge, and he ought to rebut the averments that he unjustly enriched himself with the amount at the impoverishment of the plaintiff. I fully associate myself with the remarks by Beadle CJ (as he then was) in Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR 1 (A) at 5-6 that: “Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that justice is done between the parties, and, so far as is possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance”. The first defendant’s application for absolution from the instance cannot succeed. [46] The costs in respect of the application by the first defendant shall remain in the cause. While the plaintiff sought costs on a legal practitioner and client scale against the defendant, I failed to find any special circumstances justifying such a punitive scale of costs at this stage. It would also be prudent that the question of the appropriate scale of costs be reserved until the end of the trial and that it be assessed vis-à-vis the merits of each party’s case. [47] In the result, it is ordered as follows: 1. The second defendant’s application for absolution from the instance be and is hereby granted with costs. 2. The first defendant’s application for absolution from the instance be and is hereby dismissed, and the costs thereof shall be in the cause. Dembure J: ……………………………………………………….. Scanlen & Holderness Legal Practitioners, plaintiff’s legal practitioners Coghlan, Welsh and Guest, 1st and 2nd defendants’ legal practitioners 5 HH 432 -25 HCH 9063/14 5 HH 432 -25 HCH 9063/14 JAN FREDRICK KOTZE versus WAYNE PARHAM and CREDFIN (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 2, 4 June 2025 & 21 July 2025 Civil trial - Absolution from the Instance R Magundani with her T Kachara, for the plaintiff D Ochieng, for the 1st and 2nd defendants DEMBURE J: INTRODUCTION [1] This civil trial commenced on 2 June 2025 and was adjourned to 4 June 2025. The plaintiff testified in his own case. At the close of the plaintiff’s case, the defendants applied for absolution from the instance. The application was made in terms of rule 56(6) of the High Court Rules, 2021 and was opposed by the plaintiff. BACKGROUND FACTS [2] The plaintiff is Jan Fredrick Kotze, a male adult. The first defendant is Wayne Parham, also a male adult. The second defendant is Credfin (Private) Limited, a company duly registered in accordance with the laws of Zimbabwe. [3] On 14 October 2014, the plaintiff instituted an action in this court against the defendants. The plaintiff’s claim for restitution reads as follows: “a. From the second defendant, payment of the sum of US$149,000.00 and interest thereon at the prescribed rate with effect from 28 October 2011 to date of full payment and costs of suit. Alternatively, b. From the first defendant, payment of the sum of US$149,000.00 and interest thereon at the prescribed rate with effect from 28 October 2011 to date of full payment and costs of suit. Alternatively, c. From the first and second defendants jointly or severally, the one paying the other to be absolved, payment of the sum of US$149,00.00 and interest thereon at the prescribed rate with effect from 28 October 2011 to date of full payment and costs of suit.” [4] The plaintiff’s claim is founded on the ground that he entered into an agreement with the second defendant, or alternatively, if it is held that the first defendant had no authority, with the first defendant, in terms of which he deposited the sum of US$149,000.00 with the second defendant. He averred that it was a term of the agreement that the defendants would hold the money in trust for the account of the plaintiff. [5] The plaintiff further stated that in terms of their agreement, the first defendant would deposit the funds with the second defendant on behalf of the plaintiff. It was also averred that it was agreed that the funds would be payable to him on demand. The plaintiff submitted that at all material times, the first defendant was an officer or employee and agent of the second defendant. That the agreement was entered into at the second defendant’s business offices. The plaintiff also pleaded that the second defendant, or alternatively the first defendant or alternatively both defendants jointly, in breach of the agreement, failed, neglected and/or refused to repay the funds upon demand. In the alternative, it was further pleaded that the defendants or alternatively either the first or second defendants, were unjustly enriched at his expense. The plaintiff’s claim was as amended as per the amended declaration filed on 24 September 2015. [6] It is common cause that on 28 October 2011, the plaintiff paid the sum of US$149,000.00 to the first defendant. [7] The defendants contested the claim. The defendants, in their plea, as amended, denied each allegation of fact made and each conclusion of law contained in the plaintiff’s amended declaration. The first defendant averred that in November 2011, the plaintiff purchased a farm situated in Mashonaland West Province from one Daniel Hartman (“Mr Hartman”). It was averred that it was a term of the plaintiff’s agreement that the plaintiff would pay Mr Hartman the sum of US$149,000.00, being part payment of the purchase price. [8] The first defendant contended that by agreement between the plaintiff and Fox & Carney (Private) Limited (the estate agent which acted for Mr Harman), the estate agent appointed him as an escrow agent for the transmission of the funds from the plaintiff to Mr Hartman. He averred that he faithfully executed his mandate in that regard and remitted the entire US$149,000.00 to Mr Hartman as directed. He did not act in any capacity as the officer of the second defendant in accepting the appointment and executing his mandate as the escrow agent. The defendant denied ever entering into any contract with the plaintiff or having incurred any liability to him. [9] The second defendant averred that it was not a party to the dealings between the plaintiff and the first defendant. That the first defendant did not represent the second defendant. It never transacted with the plaintiff and had no agreement with him. It further denied having ever received any money from the plaintiff and being enriched from his estate. The defendants further contended that in the case number HC 7401/13, the plaintiff claimed the sum from the first defendant arising from the same transaction and the plaintiff pleaded the matters set out in para 2 of the first defendant’s plea and further that Mr Hartman failed to pass transfer of the farm that the plaintiff bought from him. The claim was withdrawn. The defendants further contended that the plaintiff withdrew the claim tacitly accepting the futility of proceeding against anyone other than Mr Hartman. They argued that the claim is founded on a deliberately false portrayal of the dealings between the parties and is mala fide. Consequently, they prayed for the dismissal of the claim with costs on a higher scale. The plaintiff, in his replication, denied all the averments by the defendants. [10] After the close of pleadings, the parties filed their pre-trial conference documents. The matter was referred to trial on issues set out in the parties’ joint pre-trial conference minute. The record was then placed before me for trial. On 2 June 2025, the trial commenced. On 4 June 2025, the defendants notified the court of their intended application for absolution from the instance at the close of the plaintiff’s case. The court then issued a case management order directing the parties to file their submissions in writing by the specified dates. The parties agreed that the court would proceed to determine the application on the basis of the written submissions. On 9 June 2025, the defendants filed this application through their legal practitioners, while the plaintiff also filed his response on 13 June 2025. The defendants went on to file their replying submissions on 17 June 2025. SUBMISSIONS MADE BY THE PARTIES [11] It was the defendants’ submission that the plaintiff failed to establish a prima facie case against them. The defendants argued that the plaintiff failed to prove the terms of the agreement and the capacity that he pleaded. Mr Ochieng argued that the plaintiff’s declaration pleads an imagined contract between him and one or both of the defendants, but his evidence was an account of an actual transaction between him and Mr Hartman. Counsel argued that under examination, when asked as to why they were here, the plaintiff related to how he responded to an advert announcing the sale of the farm. The plaintiff failed to prove the case he had pleaded. [12] Mr Ochieng argued that the plaintiff testified that a key term of what was agreed was that he was to pay a deposit as proof of commitment in the sum of US$150,000.00 and that he was uncomfortable paying it to the estate agent or the seller’s lawyer. Further, it was submitted that the plaintiff testified that the estate agent suggested to him that he could pay the funds to the second defendant and the first defendant in particular. The plaintiff testified that he wished for the funds to be in a trust account, which he alone would have access to and from which he would only pay upon a signed agreement of sale. Counsel argued that the receipt, which was Exhibit 1, does not mention the second defendant. [13] Counsel submitted that it was only after the seller’s lawyer informed him that the farm had been acquired that the plaintiff made enquiries that he was able to recount. He argued that the plaintiff led evidence to the effect that the seller’s lawyer informed him that the farm had just been acquired and no sale could go through. Mr Ochieng further submitted that it was the evidence of the plaintiff that that is the time when he requested his money back and that is when he was told that some of the money had been used to pay the agent’s commission and the rest had been remitted to the seller. It was argued that this evidence was false as the plaintiff was departing from his pleadings. This should weigh in favour of the grant of absolution. [14] Mr Ochieng submitted that the plaintiff’s case consciously omitted the real starting point, as he, under cross-examination, admitted that it would be wrong to claim, as the declaration effectively does, that he approached the first defendant at random. Counsel submitted that the plaintiff is dishonest as his declaration is inconsistent. He relied on the case of Keavney & Anor v Msabaeka Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S) at 608A-E. [15] It was submitted that there was indeed a contract of sale between the plaintiff and Mr Hartman, as per the testimony of the plaintiff, and therefore his claim is against the seller. Counsel submitted that it was the evidence of the plaintiff that he prepared to take over the farm, which means that the payment was made. It is further submitted that the contract was never cancelled, and the plaintiff confirmed that pursuing his remedies against the seller would have been costly and uneconomic. The conclusion is that this claim has been misdirected to a stranger out of frustration. [16] Mr Ochieng also argued that the plaintiff’s remedy, if he has any, lies against the only person with whom his evidence shows him to have contracted, and it cannot arise from an imaginary contract. Further, he submitted that the plaintiff admitted that there was no definitive discussion with the first defendant regarding payment of interest. Admitting the absence of this discussion is admitting the absence of the contract of deposit itself. The defendants are under no obligation to the plaintiff, and he has sued the wrong parties. Further, counsel argued that the evidence of the plaintiff did not reveal any link between the second defendant and the plaintiff. Even the receipt of payment only mentions the first defendant. There was no correspondence with the second defendant at any given time. The defendants prayed for absolution from the instance with costs on a legal practitioner and client scale. [17] On the other hand, counsel for the plaintiff argued that the defendants’ application for absolution is predicated on a fundamental misconception of the legal principles governing such an application. It was submitted that the plaintiff established a prima facie case. Counsel argued that absolution from the instance is a drastic remedy that is only granted in exceptional circumstances, where the plaintiff’s case is so weak that it would be unfair to require the defendant to proceed with its defence. This is not the case. The test for absolution is whether the evidence presented is so lacking in credibility or probative value that no reasonable court would find in favour of the plaintiff. [18] It was further submitted that in this case, the plaintiff has a valid claim against the defendants to which they must answer, and the core of the matter is reflected in the plaintiff’s declaration. The money was held in trust as per the agreement and was to be remitted upon the plaintiff’s request. Further, counsel submitted that the defendants were not involved in the sale of the property whatsoever, their sole obligation being to act as trustees for the holding of funds. His evidence corroborated his declaration and, therefore, he set a prima facie case against the defendants. It was the plaintiff’s testimony that he was introduced to the defendants by Adele Rowe, who was the agent, and this was never challenged under cross-examination. Counsel argued that it was the plaintiff’s testimony that the defendants were necessitated by the need to have a third party hold the commitment fee of US$150,000.00, which had been requested by the sellers. [19] Counsel further argued that it was the testimony of the plaintiff that the money was never paid to the seller or his legal practitioner. The defendants’ allegation that the money was paid was, therefore, untrue. It was also submitted that it is not in dispute that the first defendant received US$149,000.00 from the plaintiff as per Exhibit 1 and that he was to deposit the money with the second defendant. Counsel also argued that the money was counted by another employee of the second defendant, which means that two employees of the second defendant participated, and this was not challenged under cross-examination. It was never challenged that all meetings, including the payment, were held at the offices of the second defendant at 9 Birchenough Road, Alexandra Park. At all material times, there was no separation of the first and second defendants. [20] It was further argued that it was not clear as to whether the first defendant, after receiving the funds, failed to pay over to the second defendant, or the second defendant received the funds and is refusing to release them on demand. Counsel argued that what happened is within the exclusive knowledge of the defendants, and they must deal with the position, each attending to either of the possibilities raised against them. The defendants’ assertion that the funds were disbursed to Mr Hartman had not been backed by evidence, as the plaintiff had not been provided with documentary evidence substantiating that instruction. The defendants must tell the court what they did with the plaintiff’s money. Counsel relied on the case of Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC 58/19, where the Court held that before granting this kind of application, the court must be satisfied that there is no evidence before it which a reasonable court might find for the plaintiff. [21] It was also argued that this application is a tactic to delay and an abuse of court process. Counsel submitted that the defendants insist on drawing the attention of the court to the case in HC 7401/13, which is not the case before this court, nor is it a referenced case. The withdrawal of that case does not signal that the plaintiff did not have a cause of action against the defendants in any way. In that case, the defendants raised an exception to the summons and the defendants cannot change that position and rely on the same pleadings when they said they were inarticulately drafted. They cannot approbate and reprobate. The plaintiff prayed for the dismissal of this application with costs on a punitive scale on the basis that the defendants filed this application even though the plaintiff has a proper claim and provided evidence for it. [22] In their response, the defendants argued that each of the questions that the plaintiff held out as calling for answers had already been answered in his own evidence. Counsel argued that Mr Hartman received the funds and that both he and the plaintiff benefited from it. Further, it was argued that there was a legally binding agreement between Mr Hartman and the plaintiff and that some of the money was used as agent’s commission. ISSUE FOR DETERMINATION [23] The sole question for determination is whether the plaintiff has established a prima facie case against the defendants. THE LAW [24] The law is clear on the test applied when an application for absolution from the instance is made at the close of the plaintiff’s case. The test is whether there is evidence upon which a court acting reasonably could or might find for the plaintiff. This means that the enquiry is whether a plaintiff has made out a prima facie case by adducing evidence to prove all the essential elements of the claim entitling the court to find for him at that stage. The law applicable in an application of this nature was restated in Mazibuko v Santam Insurance Co Ltd and Anor 1982 (3) SA 125 (AD) at 133H, where the court said: “In an application for absolution made by the defendant at the close of the plaintiff's case the question to which the Court must address itself is whether the plaintiff has adduced evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff; in other words whether plaintiff has made out a prima facie case.” [25] See also in NMB Bank Limited v Formscaff (Pvt) Ltd & Ors SC 31/22 at pp 14-15, where Guvava JA had this to say: “The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) at pg 343 the Court held that: “The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.” (see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)). In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA) at 92 E-93 A it was held that: “The test for absolution to be applied by a trial court at the end of plaintiff’s case was formulated in Claude neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms‘… when absolution from the instance at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff established 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 or ought) find for the plaintiff…’This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…” 32. Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff’s case who fails to prove a prima facie case. A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows: “Prima facie evidence in its more usual sense, is used to mean prima facie proof of an issue the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…” EXAMINATION [26] The question that this court has to determine is whether the plaintiff has proved a prima facie case against the defendants or whether he adduced evidence upon which a reasonable court might find for him at this stage. There is, therefore, need to interrogate whether he adduced evidence establishing the essential elements of his claim that entitle the court to find for him at this stage. [27] In this case, the plaintiff’s main cause of action is founded on an agreement. The court must ascertain whether there was an agreement, and if the answer is yes, then who were the parties to the agreement. In para(s) 4-6 of the plaintiff’s amended declaration, he pleaded that he entered into an agreement with the second defendant. He went on to say that he deposited US$149,000.00 to the second defendant through the first defendant. He also stated that it was a term of the agreement that the second defendant would hold the funds in trust for the plaintiff, and the funds would be repayable on demand. In the alternative, he pleaded that if the first defendant had no authority to act for the second defendant or that he did not enter into the agreement on behalf of the second defendant, the agreement was only between him and the first defendant. The relief that the plaintiff seeks is for the payment of the sum of US$149,000.00 from the defendants, or alternatively, from either the first or second defendant. [28] The plaintiff’s case was, therefore, that he concluded an agreement with the second defendant, who was represented by the first defendant, or alternatively with the first defendant. The agreement was that the second defendant, or alternatively the first defendant, would hold the money in trust and avail the money to him upon demand. The question that arises is whether he has established a prima facie case that there was an agreement entered into with the second defendant or the first defendant in the alternative. It is trite that for a contract to exist, there must be a meeting of the minds regarding the subject matter. In other words, there must be an offer and an acceptance. The legal position was remarkably explained by Dube J (as she then was) in Delta Beverages (Pvt) Ltd v Pyvate Investments (Pvt) Ltd & Anor HH 135/18, where she said: “Generally, oral contracts are enforceable and do give rise to valid contractual relationships. The oral contract, sometimes referred to as the invisible contract, is one of the most difficult to prove. What makes this so is the lack of hard evidence of the existence of the contract. The essentials of a verbal contract are the same as those of a written contract. There must be offer and acceptance of the contract, existence of consideration [the position is now settled that the doctrine of consideration is not part of our law of contract: Christie, The Law of Contract in South Africa, 5ed (2006) 8-10], the parties must have the capacity to enter into the contract and the parties must intent to enter into the contract and create a binding legal relationship. The courts will not endorse an oral agreement where any of the essential elements of a valid contract have not been proved. The terms of the oral contract must be proved and there must be agreement and understanding of the terms of the contract by the parties. An oral contract that meets all the requirements of a contract is binding on the parties and gives rise to a legally enforceable relationship. There must be a meeting of the minds or a reasonable belief by the parties that there is consensus. A party who alleges the existence of an oral contract has the onus to prove the existence of the contract on a balance of probabilities. In South African Railways and Habours v National Bank of South Africa 1924 AD 704 at 715, the court stated: “The law does not concern itself with the working of the minds of the parties to a contract, but with the external manifestations of their minds. Even therefore if from a philosophical standpoint the minds of the parties do not meet, yet, if by their acts their minds seem to have met, the law will, where fraud is not alleged, look to their acts and assume that their minds did meet and that they contracted in accordance with what the parties purport to accept as a record of their agreement.” A contract may be enforceable where there is evidence of the existence of the contract which may include evidence of performance of the contract and reliance on the agreement by the parties. There are cases where the contract itself has not been made perfecta by the signing of the agreement by the parties. Where the acts and conduct of the parties reveals that the minds of the parties have indeed met, the court will not hesitate to confirm the contract. A party alleging the existence of a contract in such circumstances must lead evidence to demonstrate the existence of the contract and the parties’ understanding of the contract. Documentary evidence such as emails, faxes, showing the intention of the parties and dealings between the parties after the alleged contract was entered into serve to confirm the existence of the contract.” [29] The plaintiff in his summons and declaration does not specify whether the agreement he entered into was verbal or written. However, in his evidence in chief, he stated that the agreement was never reduced to writing. It was verbal. As stated in the Delta Beverages (Pvt) Ltd case, verbal contracts are equally legally binding and enforceable as written contracts, but they present more challenges to the litigants to establish them or their terms. The question that arises would be whether there was a verbal agreement between the plaintiff and the second defendant, represented by the first defendant or alternatively, between the plaintiff and the first defendant and the terms of such contract? [30] The plaintiff testified that when he approached the defendants, there was supposed to be a written agreement, but when he arrived at their offices, the first defendant was preparing to leave the office, as it was late in the afternoon. He stated that he left the money with the first defendant after getting an acknowledgement of receipt from him (Exhibit 1). The plaintiff also stated that he never got the written agreement, but the money was accepted by the first defendant as a deposit in terms of the agreement he had. It was not challenged that the plaintiff paid the sum of US$149,000.00 to the first defendant, who accepted it. This is also proved by Exhibit 1, which is the acknowledgement of receipt signed by the first defendant. It is, therefore, an admitted fact that the first defendant received the said sum of US$149,000.00 from the plaintiff. What is in dispute is in what capacity he received the funds and the terms of the alleged agreement requiring that such payment should be made, and how it would be paid out. [31] It was the evidence of the plaintiff that he responded to an advert for the sale of a farm and was requested to make an offer. The plaintiff testified that he was to pay US$150,000.00 to show commitment to the sale, and that he was not comfortable paying it to the seller’s lawyer, Mr Stonier or his estate agent, Adele Rowe. The seller was Mr Hartman, who was based in New Zealand at the time. It was his evidence that the estate agent referred him to a third-party consultant company that was represented by the first defendant. He stated that he was comfortable dealing with them because he was familiar with the first defendant’s surname, as he knew it, and that is why he gave them the money. He also stated that he went to the offices of the second defendant and met the first defendant. The plaintiff also stated that the money was counted by the first defendant and another employee of the second defendant, and that he expected a written agreement, which never materialised. He further stated that the terms of their agreement were that the defendants had to hold the funds in trust for him and would repay it on demand upon the conclusion of an agreement of sale. [32] While in his pleadings he did not disclose the underlying contract of sale or the background to the alleged contract with the defendants, that per se should not be the basis to discard his evidence at this stage. I admit that the declaration was not elegantly drafted, but it still captures the underlying contractual foundation of his claim. The failure to give a background to the contract he pleaded cannot be fatal. He testified and maintained the same story under cross-examination that the defendants, in terms of their verbal contract, were merely to hold the funds for him in trust and they would repay the money on demand. He claimed that the sale of the farm did not materialise and that he did not give the defendants any instructions to pay out the funds to anyone else. According to him, it was a term of the contract that the funds were to be held on his own account and would remain available to his disposal. He said he did not instruct the defendants to make any payment of the funds, but to repay it to him, but they failed to do so, hence this suit. [33] As regards the first defendant, there is no dispute that he received US$149,000.00 from the plaintiff. What is in dispute is in what capacity he received the funds and the terms of that deposit. The plaintiff, under cross-examination, maintained that there existed a verbal contract for that payment to be made to the first defendant. Indeed, the funds were paid to the first defendant as admitted. No evidence is required to prove what has been admitted. The law on the effect of an admission was restated in Manyenga v Petrozim (Pvt) Ltd SC 40/23, where the Supreme Court stated that: “32. The effect of an admission has been held to be the following in the case of Potato Seed Production (Proprietary) Ltd v Princewood Enterprises (Pvt) Ltd & Ors HH 45-17 at p 4; “Indeed the effect of an admission is settled law. Once made it binds its maker with the attendant consequences see Kettex Holdings P/L v S Kencor Management Services P/L HH 236-15.” 33. The consequences of making an admission which is not withdrawn is that it will not be necessary to prove the admitted fact(s): Adler v Elliot 1988 (2) ZLR 283 (S) at 288C. In addition, this Court, in the case of Mashoko v Mashoko & Ors SC 114-22, held that: “The law on admissions in pleadings and indeed in evidence, is also settled. A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party would have made. By equal measure, a party is not permitted to attempt to disprove admissions made.” [34] The plaintiff’s evidence, which he maintained even under intense cross-examination, was that the terms of the contract he had with the defendants required him to pay the said amount. The amount indeed was paid and received by the first defendant. He further insisted that it was to be held in trust with the second defendant and payable on demand. In my view, he established a prima facie case as against the first defendant, who did not dispute that he received the said amount. While he alleged some other terms of the contract he had not with the plaintiff but the estate agent, I am constrained at this stage, without having heard from the first defendant, to assess the probabilities regarding the exact nature of their agreement and the terms thereof. I must exercise extreme caution since I have only heard from the plaintiff. The court cannot, therefore, assess the probabilities after having listened to one side of the story: that is, from the plaintiff alone. Thus, in Bakari v Total Zimbabwe (Pvt) Ltd SC 21/19, Guvava JA reiterated the cautious approach the court must take in dealing with the plaintiff’s evidence at this stage by saying as follows: “In deciding what a court may or may not do, there is an implication that the court may make an incorrect decision, because at the close of the plaintiff’s case, it will not have heard all the evidence. In the case of Nobert Katerere v Standard Chartered Bank Zimbabwe Limited HB 51-08, the court stated: “The court should be extremely chary of granting absolution at the close of the plaintiff’s case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim-Claude neon Lights (SA) Ltd v Daniel 1976 (4) SA 403(A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26(A); Sithole v PG Industries (Pvt) Ltd HB 47-05”. [35] Applying the above principles, the defendants’ argument in calling upon the court to discard the evidence of the plaintiff entirely at this stage would be legally untenable. I am not satisfied that there are special circumstances for the court to treat his evidence as entirely and inherently unreliable. With the admission by the first defendant that he received the said sum of US$149,000.00 and the plaintiff’s evidence that it was for a specific purpose and that the funds remained at his disposal until he made the payment instructions, in my view, he has set out a prima facie case as against the first defendant. The first defendant must, therefore, state what he believes were the terms of the verbal contract and with whom he concluded the agreement. He must disclose what he did with the money and the terms of the agreement under which he alleged he acted as an escrow agent for the seller through the estate agent. What is clear at this stage is that he received the said funds from the plaintiff and the funds related to the purchase and sale of the farm between the plaintiff and the said Mr Hartman, which was managed through the estate agent, Fox & Carney. If he cannot be held liable to repay the amount to the plaintiff based on what he said was a contractual relationship he had with the estate agent, and that he duly performed his mandate by paying the sum to Mr Hartman, it is upon him to prove that assertion or special defence. The general principle of the law is that he who makes an affirmative assertion, whether the plaintiff or defendant, bears the onus of proving the facts so asserted. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) at 459; Astra Paints Chemical v Chamburuka SC 27/12; Book v Davidson 1988 (1) ZLR 365 at 384 B-F. In Nyahondo, supra, Korsah JA held that: “Where a person against whom a claim is made is not content with a mere denial but sets up a special defence or raises a fresh issue (when he confesses and avoids) then he is regarded in respect of that defence as being the claimant; for his defence to be upheld he bears the onus of satisfying the court that he is entitled to succeed on it.” In the premises, the first defendant ought to be put to his defence. [36] The mere fact that the plaintiff withdrew the case under HC7401/13 is not, in my view, conclusive at this stage, nor can it be said that, because of that, the plaintiff has failed to establish a prima facie case against the first defendant. A litigant is at liberty to withdraw a case at any time before trial. A tactical withdrawal is permissible. However, the probabilities of the whole case, while it may also be viewed in the context of the manner the plaintiff had pleaded his case in court and the one withdrawn, that assessment can only properly be done once all parties have led evidence. The court cannot use the material differences to discard the plaintiff’s evidence, as it must be accepted at this stage as the truth unless inherently unreliable in the special circumstances of the case. See the Bakari case, supra. [37] The witness further said that the sale could not proceed after the farm was acquired by the State. Of course, there are some discrepancies in the descriptions of the farm and the details of the owner in the Government Gazette and those in the title deed. This does not, however, detract from his testimony that he was informed by the seller’s lawyer that the transaction could not proceed following the compulsory acquisition. While, if one considers the offer form, it may be argued that the acceptance of the offer created a contract of sale and came with it the obligation to pay the deposit of $150,000.00, the role of the first defendant in the whole transaction was depicted by the plaintiff as being one based on a separate contract and simply meant to facilitate that the funds are held in trust pending the conclusion of the sale. The plaintiff said that the reason for this was that he was not comfortable paying the money to the seller’s agent or his lawyer. The plaintiff’s evidence was further that the sum of US$149,000.00 was paid as a commitment fee and was to be held in trust pending the conclusion of the sale. According to him, the funds remained subject to his further instructions and repayable on demand. The first defendant’s defence was that his contract was with the agent to facilitate the payment of the money from the plaintiff to the seller. He stated in his plea that he executed that faithfully. He alleged he paid the seller. Whether he paid the amount he received from the plaintiff to Mr Hartman and the terms under which he did so remain part of what the court is called upon to decide on probabilities. The factual disputes in casu cannot be resolved without the evidence of the first defendant, as he raised a special defence. [38] It would be improper at this stage to discard the plaintiff’s evidence and accept the first defendant’s version of defence, put only in cross-examination of the witness, and was refuted. The special defence can only be established by the first defendant testifying. I am, therefore, of the view that as against the first defendant, the plaintiff has managed to establish a prima facie for reimbursement in the main or alternatively under unjustified enrichment. [39] As regards the second defendant, I am not satisfied that there was prima facie evidence establishing a verbal agreement with the second defendant. In the testimony of the plaintiff, there was nothing to show the involvement of the second defendant or that the first defendant acted as a duly authorised representative of the company in the transaction. The plaintiff admitted in cross-examination that he never received any paperwork or documents from the second defendant to show that the company was involved. There was no correspondence either in letters, emails or telephonic records showing the existence of such verbal contract. The plaintiff himself admitted that he only met the first defendant at the second defendant’s offices. He said that on the date he made the payment, he met him in the corridors when everyone was about to leave the office. There was an unnamed secretary whom he alleged assisted the first defendant in counting the money. Again, Exhibit 1 or the receipt thereof did not even originate from the second defendant or show that it was from the company or that the first defendant signed it on behalf of the second defendant. It does not in any way link the second defendant to the transaction. The witness himself also conceded that he did not follow up with the company for any paperwork. [40] Nothing was further disclosed after the payment, which would draw the company into the whole transaction and with it the liability to repay the funds paid to the first defendant. Even unjust enrichment does not arise where it has not been shown that the second defendant was involved or received the funds in the first place or that it acted through the first defendant. It would be improper in my view to put the second defendant to its defence in the circumstances. The law is clear that he who alleges must prove. In Dube v Murehwa SC 68/21 at p10, the Supreme Court aptly remarked as follows on the impact of failure to adduce adequate evidence to one’s claims: “The law is clear that bald and unsubstantiated allegations do not establish a litigant’s purported or announced position. See Akhtar v Minister of Public Commission SC 173/97. …” See also ZIMASCO (Pvt) Ltd v Tsvangirai & Ors SC 12/20 at p 12, where GUVAVA JA remarked that: “It is trite that “he who alleges must prove”. The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination. I share the sentiments expressed in Delta Beverages (Pvt) Ltd v Murandu SC 38/15, where it was stated that: “I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.”” Similar remarks were expressed in Astra Industries Ltd v Chamburuka SC 27/12, that: “The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation. This position has been affirmed by this Court. In Book v Davidson 1988 (1) ZLR 365 (S) at 384 B-F, DUMBUTSHENA CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965 (2) SA 706 AD at 711 E-G: “The general principle governing the determination of the incidence of the onus is the one stated in the Corpus iuris simper necessitas probandi incumbitilli qui agit. In other words he who seeks a remedy must prove the grounds therefore.” [41] In casu, there was no evidence documentary or otherwise upon which any reasonable court might accept that the second defendant was a party to the alleged agreement or that it was enriched unjustly at the expense of the plaintiff. It was not established that the first defendant acted as its agent or officer in the transaction. The mere fact that the plaintiff met with the first defendant and paid the sum to him at the second defendant’s premises does not, on its own, establish that the company was involved or that it was a party to the agreement. There was no evidence that the first defendant was acting on behalf of the second defendant. There was also no proof that the second defendant received any funds from the plaintiff. I have no option in the circumstances but to conclude that there was no agreement between the plaintiff and the second defendant. There was also nothing to render the second defendant liable to the plaintiff on the basis of the principle of unjust enrichment. The essential elements of the plaintiff’s claim against the second defendant, as pleaded both in the main and alternative, were not established. [42] The plaintiff failed to prove that there was any relationship between him and the second defendant, and, therefore, the application for absolution from the instance succeeds against the second defendant. However, what is clear from the testimony of the plaintiff is that money was given to and received by the first defendant. He alleged that he suffered prejudice in that regard as he parted with US$149,000.00 which was not refunded. He, therefore, claimed that he is entitled to get it back. The plaintiff was consistent in his testimony that he gave the money to the first defendant in trust and that he was the only one who was to access the money. There is no reason for the court to disbelieve him at this juncture. [43] Further, Exhibit 1 confirms the plaintiff’s case that he paid the money to the first defendant. The first defendant, in turn, did not deny that he received the funds. He, however, alleged a different contract and that he paid the funds in terms of his mandate to the seller, Mr Hartman. Arising from the plaintiff’s testimony, if the first defendant received the money and the plaintiff was the only one to have access to the money, then where did the money go? Was the first defendant instructed otherwise to pay out as he allegedly did, and on whose mandate? Further, did he even pay out the funds at all to anyone else? These critical questions can only be answered if the first defendant is put to his defence. The plaintiff managed to satisfy the elements of his claim for restitution. He established a prima facie case of there being an agreement and/or for unjust enrichment entitling him to the relief sought against the first defendant. Consequently, there is need for the first defendant to rebut the plaintiff’s evidence and be put to his defence. DISPOSITION [44] The court is not satisfied that the plaintiff established a prima facie case against the second defendant. The application for absolution from the instance by the second defendant ought to succeed as it is merited. As regards costs, there is no reason to depart from the general rule that costs shall follow the event. No special circumstances exist to justify an order for punitive costs against the plaintiff as prayed. The plaintiff failed to prove its allegations, which remained bald, but its claim cannot be considered an abuse of the court process. There is also no conduct warranting such an order. [45] As regards the application for absolution from the instance by the first defendant, I am satisfied that the plaintiff established a prima facie case against him. The money was handed over to the first defendant, who in turn accepted the payment. The plaintiff’s evidence was that the payment was made in terms of an agreement. The relief for restitution was anchored on the agreement that the plaintiff said he had. In the alternative, the plaintiff’s case is that he was unjustly enriched at his expense and that he must be ordered to repay the funds. The first defendant must, therefore, be put to his defence to explain what he did with the money and prove the contract he alleged entitled him to deal with the money as he allegedly did. Whether he paid out the funds to the seller or not is within his personal knowledge, and he ought to rebut the averments that he unjustly enriched himself with the amount at the impoverishment of the plaintiff. I fully associate myself with the remarks by Beadle CJ (as he then was) in Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR 1 (A) at 5-6 that: “Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that justice is done between the parties, and, so far as is possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance”. The first defendant’s application for absolution from the instance cannot succeed. [46] The costs in respect of the application by the first defendant shall remain in the cause. While the plaintiff sought costs on a legal practitioner and client scale against the defendant, I failed to find any special circumstances justifying such a punitive scale of costs at this stage. It would also be prudent that the question of the appropriate scale of costs be reserved until the end of the trial and that it be assessed vis-à-vis the merits of each party’s case. [47] In the result, it is ordered as follows: 1. The second defendant’s application for absolution from the instance be and is hereby granted with costs. 2. The first defendant’s application for absolution from the instance be and is hereby dismissed, and the costs thereof shall be in the cause. Dembure J: ……………………………………………………….. Scanlen & Holderness Legal Practitioners, plaintiff’s legal practitioners Coghlan, Welsh and Guest, 1st and 2nd defendants’ legal practitioners

Judgment

Kotze v Parham and Others (432 of 2025) [2025] ZWHHC 432 (21 July 2025)

Headnotes

Judgment

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Discussion

Kotze v Parham and Others (432 of 2025) [2025] ZWHHC 432 (21 July 2025)

Headnotes

Judgment

Similar Cases

Discussion