Johnstone v Murphy and Others (238 of 2025) [2025] ZWHHC 238 (1 April 2025)

4 HH 238 - 25 HCH 7483/23 HELEN JUDITH JOHNSTONE versus BRIAN MURPHY and TAWANDA COLLINS MUPINI and SHEILA ANNE MURPHY and VERACITY BUSINESS SOLUTIONS (PVT) LIMITED HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 1 April 2025 Summons Commencing Action S. Zishiri, for the plaintiff M. Mbuyisa, for the defendant MAMBARA J: This matter comes before this Court as an application for absolution from the instance at the close of the plaintiff’s case. The plaintiff, Ms. Helen Judith Johnstone (“the Plaintiff”), sues the defendant, Mr. Brian Murphy (“the Defendant”), for damages allegedly arising from professional negligence. At the close of the plaintiff’s case, the defendant applied for absolution from the instance, essentially arguing that the Plaintiff has failed to establish a prima facie case upon which a reasonable court, acting carefully, might find in her favour. The plaintiff’s late husband’s estate included immovable property and a motor vehicle, and the proceeds from the sale were allegedly entrusted to the defendant. The plaintiff maintains that the defendant was, at various points, instructed to preserve the value of these funds in foreign currency (United States Dollars) and/or to remit such funds to her foreign bank account, or alternatively to place them in an approved “blocked funds” arrangement. The plaintiff contends that the defendant’s failure to do so, or his alleged negligence in carrying out the plaintiff’s instructions, caused her financial loss, especially in view of monetary and legislative changes in Zimbabwe. The defendant disputes these allegations and contends there was no binding or formal engagement to act as an expert in preserving foreign currency. Further, the defendant argues that, even on the plaintiff’s own version, the complained-of currency losses were caused by changes in Zimbabwean law and exchange-control policies (particularly Exchange Control Directive RT120/18 and Statutory Instrument 33 of 2019), which were outside his control. Having heard the testimony of the plaintiff and her witness, this Court must determine whether, at the close of the plaintiff’s case, there is enough evidence upon which a reasonable court might find for the plaintiff. If not, absolution from the instance must be granted, thereby sparing the defendant from the burden and expense of mounting a defence against a claim that cannot, on the existing evidence, succeed. FACTUAL AND PROCEDURAL BACKGROUND The plaintiff’s late husband’s estate was registered under DR 2579/17. The immovable property in Harare was sold for US$135,000, and a motor vehicle for US$2,000. After expenses (and certain other distributions), the amount available to the plaintiff was alleged to be around US$105,650. It is undisputed that she resides either in the United Kingdom or elsewhere outside Zimbabwe, whilst the defendant resides (or conducts business) in Zimbabwe. According to the plaintiff’s version, she relied on the defendant to transfer or preserve these sums in foreign currency on her behalf. She contends that the defendant held himself out as having expertise in foreign currency remittances, estate administration, and dealing with Zimbabwean exchange-control processes. The plaintiff says that various email exchanges (which were also copied to the plaintiff’s son, Andrew Johnstone) reveal that the defendant took instructions to ensure the sum remained in US dollars or, alternatively, to apply to the Reserve Bank of Zimbabwe (“RBZ”) to have the funds recognized as blocked, preserving their foreign currency value. The plaintiff alleges that she eventually discovered that her money had been converted into local currency (initially bond notes, then RTGS, and later ZWL) by operation of law, effectively reducing her US$105,650 proceeds to a fraction of that sum in real terms. She attributes this result to the defendant’s negligence or failure to follow proper instructions. The defendant, on the other hand, disputes these allegations and pleads that there was no formal contract or legal duty of care arising at a level akin to a professional mandate in financial advisory or brokerage services. The defendant further contends that he could not have foreseen or prevented policy pronouncements, including Statutory Instrument 33 of 2019, that affected the re-denomination of the plaintiff’s proceeds from US dollars to local currency. In his view, the plaintiff and her son fully understood the risk of Zimbabwean monetary changes, yet proceeded to keep the proceeds in Zimbabwe, hoping to find a way to remit them. Ultimately, the defendant says, the re-denomination was a force majeure caused by legislative enactments, not by any negligence on his part. At trial, the plaintiff and her son testified. After they closed the plaintiff’s case, the defendant applied for absolution from the instance, arguing that there was no evidence upon which a court might reasonably find in the plaintiff’s favour regarding professional negligence or breach of duty. THE DOCTRINE OF ABSOLUTION FROM THE INSTANCE Under Zimbabwean civil procedure, absolution from the instance is a mechanism whereby the court ends the case at the close of the plaintiff’s evidence if there is no evidence upon which a reasonable tribunal might find for the plaintiff. This is to ensure that a defendant is protected from the unnecessary expense of defending a matter that, on the plaintiff’s evidence, cannot succeed. If the plaintiff’s evidence is insufficient to show a prima facie case, then absolution is warranted. In Gascoyne v Paul & Hunter 1917 TPD 170 at 173, it was held that, at the close of a plaintiff’s case, the question is: “Is there evidence upon which a reasonable man might find for the plaintiff?” If the defendant elects not to lead any evidence, that question becomes whether the court ought to grant judgment for the plaintiff on the evidence led. If the plaintiff’s evidence falls short, then absolution is the correct remedy. Closer to home, the Supreme Court of Zimbabwe in cases such as Supreme Service Station (1969) (Pvt) Ltd v Fox & Gooldridge (Pvt) Ltd 1971 (1) RLR 1 (A) emphasized that the standard is whether the evidence is of such a nature that a court might reasonably find for the plaintiff. One need not decide conclusively that the court “should” or “would” find for the plaintiff, only that the evidence is capable of supporting such a finding. In United Air Carriers (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) at 343B, the Court observed: “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.” In the context of professional negligence claims, a plaintiff must adduce some evidence on (a) the existence of a duty of care, (b) the standard of care and expertise required, (c) a breach of that standard, and (d) a causal link between that breach and the alleged loss. If the plaintiff’s own evidence fails to prove or suggest that the defendant owed and breached such a duty, the claim cannot stand. Courts have repeatedly emphasized that, in determining an application for absolution, the question is whether there is any evidence upon which a reasonable court, applying its mind properly to such evidence, might find for the plaintiff. The test is not whether the court ought or should find for the plaintiff, but whether it might. If the plaintiff’s case is so lacking that no reasonable court could find in their favour, absolution is appropriate. In criminal proceedings, the procedure allowing an accused to seek discharge at the close of the State’s case is closely analogous. Where the State’s evidence is too weak to warrant putting the accused to their defence, a court will discharge the accused and end the trial. Although the evidentiary burdens differ (beyond a reasonable doubt in criminal trials; on a balance of probabilities in civil claims), the principle that a defendant or accused should not face the burden of further defence where no prima facie case exists remains constant. SUMMARY OF THE EVIDENCE LED BY THE PLAINTIFF The plaintiff testified that she was the sole beneficiary of her late husband’s estate and that the net sale proceeds, after expenses, amounted to approximately US$105,650. Residing outside Zimbabwe, she entrusted the defendant with handling the funds—both to preserve their value in foreign currency and, if feasible, to remit the money abroad or otherwise formally register it with the Reserve Bank of Zimbabwe as blocked funds. She relied heavily on numerous emails exchanged between the defendant and herself (and her son, Andrew Johnstone), in which the defendant allegedly assured her he was knowledgeable about exchange-control processes and would manage or invest the sums accordingly. Over time, no remittance materialized, and the plaintiff received repeated messages that monetary policies in Zimbabwe had changed, culminating in the enactment of Statutory Instrument 33 of 2019, which effectively re-denominated certain US-dollar balances into RTGS at a one-to-one rate. The plaintiff testified that the defendant never produced a statement or similar proof to show the funds remained in US dollars or that any official blocked-funds registration had been done. She eventually discovered that her inheritance had been converted into local currency, leaving her with a far smaller sum in real US-dollar terms than she originally expected. Under cross-examination, the plaintiff acknowledged that she had not provided the defendant with definitive written instructions mandating him to apply for blocked funds on her behalf. She also admitted she was aware of exchange-control restrictions and recognized that, after SI 33 of 2019, many foreign-currency balances within Zimbabwe were forcibly converted to local currency. Nonetheless, she insisted that the defendant was negligent in failing to implement safeguards or to alert her promptly and meaningfully to the risk. Andrew Johnstone’s testimony broadly corroborated that of the plaintiff, particularly regarding the defendant’s representations of expertise and the shared understanding that the defendant would find a way to preserve or remit the funds. However, he likewise could not identify a specific document or instruction proving that the defendant was formally tasked with completing a particular legal process that the defendant then neglected. Andrew Johnstone argued that the defendant, presenting himself as knowledgeable in Zimbabwe’s exchange-control procedures, had a professional or quasi-professional obligation to see that the money was at least lodged in a safe or recognized mechanism to preserve USD value. He insisted that the plaintiff and he had relied on the defendant’s advice, hoping to mitigate or avoid the risk of currency erosion. 4.8 Under cross-examination, Andrew Johnstone admitted that the defendant repeatedly advised them about the changing regulatory landscape. He could not point to a definitive email from the defendant explicitly stating: “I have completed the formal blocked funds registration for your benefit” or “I have submitted an application to the RBZ.” Indeed, it emerged that the parties were continuously exploring ways to move the money, but there was no documentary proof that a final arrangement was concluded or instructions were robustly acted upon. LEGAL ANALYSIS AND APPLICATION OF THE TEST In a claim for professional negligence or negligence more generally, the Plaintiff must show that: The defendant owed her a duty of care of a professional nature.That the standard of care required was that of a reasonable professional with relevant expertise under the circumstancesThe defendant breached that duty by failing to act as a reasonably prudent professional (or person) would under similar circumstances.The breach caused the losses complained of. In many jurisdictions, including Zimbabwe, South Africa, the United Kingdom, and the United States, the question of duty in a negligence case often turns on whether the parties had a recognized relationship (for instance, attorney-client, doctor-patient, or a formal contract for financial advisory). If no such relationship is established, or if the alleged professional obligations were too vague or indefinite, the claim may fail. From the plaintiff’s own evidence, it is not fully established that the defendant was acting under a formal professional mandate, such as one would find between a regulated financial advisor and a client. The defendant appears to have been someone known through mutual acquaintances, who presented himself as conversant with foreign currency matters. There was no written contract clearly specifying a professional engagement or imposing a recognized standard of care akin to that owed by a registered practitioner in the financial services sector. While Zimbabwean law recognizes that a duty of care can arise informally in certain circumstances, the plaintiff has not proffered direct evidence that the defendant expressly undertook a legally binding duty to preserve the inheritance in foreign currency or to process a “blocked funds” arrangement. Instead, the plaintiff’s testimony suggests repeated discussions, hopes, or intentions, but no record of formal instructions that the defendant was required—on penalty of professional negligence—to effect. If a court is to find that a defendant was professionally negligent, the plaintiff must at least offer some indication of: The recognized professional capacity of the defendant (e.g., a licensed financial advisor, or a legal practitioner specifically retained).The breach, i.e., the acts or omissions contrary to the standard of that profession.Clear instructions or a specific recognized function that the defendant undertook and then performed negligently. Even if one assumes that some sort of duty arose from the verbal or email exchanges, the plaintiff’s evidence did not concretely establish the defendant’s breach of a defined standard. The plaintiff did not produce any document demonstrating that the defendant had been unequivocally instructed to set up a blocked-funds arrangement with the Reserve Bank of Zimbabwe, or that such an arrangement was readily available during that time frame. The record suggests that the plaintiff and her son were well aware of the shifting legislative environment but relied on the defendant’s informal advice about possible solutions. When the country’s monetary regime changed under SI 33 of 2019, balances in US dollars on deposit inside Zimbabwe were converted to RTGS—a move that was legally mandated and beyond the defendant’s personal control. Regarding causation, the question is whether, but for the defendant’s alleged negligence, the plaintiff’s money would have remained in hard currency. The plaintiff did not bring forth evidence showing that a timely application to the Reserve Bank for blocked funds would have succeeded, or that an immediate transfer abroad was feasible under the strictures of Zimbabwean exchange-control rules. The re-denomination introduced by SI 33 of 2019 was not something the defendant could avoid by unilateral action. Absent proof that the defendant blatantly failed to follow a clear, legally viable instruction, it is difficult to conclude that he was the cause of the plaintiff’s loss. On the evidence, the plaintiff’s own witnesses admitted that they were aware of the legislative environment in Zimbabwe. They also conceded that no documentary or other proof exists that the defendant was expressly mandated to do more than offer informal suggestions and keep an eye on the possibility of externalizing the money. The plaintiff did not produce any letter, contract, or expert opinion demonstrating that a recognized professional standard was breached. There is no dispute that statutory instruments—particularly SI 33 of 2019—converted certain United States Dollar balances in Zimbabwean banks to RTGS (later ZWL) at a 1:1 rate. Subsequent exchange rates led to significant devaluation. If the root cause of the plaintiff’s loss was the Government’s promulgation of these new laws, then establishing negligence by the defendant requires at least some proof that he could have avoided that statutory re-denomination by promptly transferring or blocking the funds. However, the plaintiff’s evidence did not demonstrate that she had delivered to the defendant, in timely fashion, a foreign account number along with a clear mandate that “You must proceed immediately, no matter what, with the transfer.” Rather, the emails reflect ongoing deliberations, references to RBZ approvals, and a general uncertainty about whether such approval was even available. One cannot impose liability on a defendant for failing to outrun or circumvent the law, particularly where such law is strictly enforced by central bank policy. Without evidence that the defendant clearly neglected a feasible legal pathway to preserve the funds (for instance, by lodging a formal blocked-funds application under the correct procedures), the Court cannot assume wrongdoing. The plaintiff’s case needed to supply proof of some step that the defendant was mandated to, and could realistically, take—but did not. Such evidence is lacking on the record. At best, the plaintiff’s case establishes that she hoped or expected the defendant to manage the money in a way that avoided currency risk, but that macroeconomic changes intervened. Hopes and expectations do not suffice for a legal claim in negligence where the plaintiff has not pinned down a specific duty or a clear breach. THE ABSOLUTION TEST Applying the test for absolution from the instance, the Court asks if there is sufficient evidence upon which a reasonable court might find for the plaintiff. That assessment focuses on whether the plaintiff’s version, taken at face value, discloses a prima facie case regarding duty, breach, and causation. The evidence, as it stands, indicates that the primary driver of the plaintiff’s financial loss was the statutory re-denomination of foreign currency balances under Zimbabwean law. The plaintiff’s argument, resting on the defendant’s alleged professional negligence, lacks the necessary proof of a clear mandate, a clear breach, and a direct causal relationship between any breach and the currency losses. Put simply, no reasonable tribunal could find for the plaintiff based on the evidence presented. For absolution from the instance, the Court does not weigh credibility in fine detail or prefer one side’s story over another. Instead, it asks whether there is sufficient evidence to call upon the defendant to answer. The Court concludes that the plaintiff’s own case fails to present a coherent, prima facie basis upon which to impose liability for professional negligence. Courts in Zimbabwe, South Africa, the United Kingdom, and the United States all recognize that a defendant should not be put on their defence if the plaintiff’s evidence is insufficient to sustain a claim. In Zimbabwe, the landmark case of Gascoyne v Paul & Hunter 1917 TPD 170 (as referenced in local jurisprudence) and later decisions have cemented the principle that, at the close of the plaintiff’s case, the central question is whether a reasonable court “might” find for the plaintiff on the strength of the evidence. If not, absolution is granted. In Supreme Service Station (1969) (Pvt) Ltd v Fox & Gooldridge (Pvt) Ltd 1971 (1) RLR 1 (A), the Court underscored that if the plaintiff’s case is so inherently lacking in proof that the court cannot envision a finding in the plaintiff’s favour, absolution should be granted. The same principle appears in United Air Carriers (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S), where the Supreme Court explained that the plaintiff must at least furnish some evidence on all elements of the claim to avoid absolution. South African law is broadly similar, as seen in cases like Gascoyne v Paul & Hunter (from which local doctrine partly derives) and the subsequent line of authorities clarifying that a court should not require a defendant to present a defence if the plaintiff’s case, viewed in the most favourable light, does not pass the threshold of a prima facie claim. Similarly, in Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88 (SCA), the Supreme Court of Appeal recognized that the plaintiff must present evidence upon which a reasonable court could find in her favour on all elements of the claim. In the United Kingdom, while the mechanism differs somewhat—often involving applications for summary judgment or submissions that there is “no case to answer”—the principle is that a claim lacking sufficient evidence on essential elements should be dismissed. In Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794, for instance, the Court of Appeal emphasized that if there is no realistic prospect of success on the available evidence, there is no reason to proceed. In the United States, Rule 50 of the Federal Rules of Civil Procedure allows a court to grant judgment as a matter of law (formerly known as a “directed verdict”) if no reasonable jury could find for the plaintiff. The threshold is not whether the court would or should find for the plaintiff, but whether the evidence is sufficient to enable such a finding at all. Where it is not, judgment for the defendant must issue. All of these comparative approaches echo the same foundational idea: a defendant must be spared the burden of defence if the plaintiff’s evidence, taken at its highest, still cannot sustain a verdict in the plaintiff’s favour. FINDINGS This Court, after considering all the evidence led by the plaintiff, finds that the plaintiff has not established a prima facie case sufficient to shift the burden to the defendant. There is no basis in the evidence to conclude that the defendant was bound by a formal duty of care at the level contended by the plaintiff, or that he negligently failed to carry out any specific, clearly mandated act that could have prevented the re-denomination and consequent loss of foreign-currency value. The re-denomination itself was a policy and legislative act outside the defendant’s control, and the plaintiff did not show that a viable, timely route existed to safeguard her funds that the defendant negligently ignored. CONCLUSION AND ORDER In civil litigation, absolution from the instance spares a defendant from prolonged proceedings where the evidence, taken at face value, cannot support a judgment against them. Here, the plaintiff’s evidence lacks sufficient proof of duty, breach, or causation. The legislative changes underpinning the plaintiff’s misfortune were not orchestrated by the defendant, and the plaintiff has not shown that the defendant breached any enforceable obligation that would have avoided or mitigated the impact of those changes. Absolution from the instance must therefore be granted. IT IS ORDERED THAT: The defendant’s application for absolution from the instance be and is hereby granted.The plaintiff’s claim be and is hereby dismissed.The plaintiff shall bear the costs of suit. Mambara J: ………………………………………… Sai Zishiri, plaintiff’s legal practitioners Mtetwa & Nyambirai, defendant’s legal practitioners 4 HH 238 - 25 HCH 7483/23 4 HH 238 - 25 HCH 7483/23 HELEN JUDITH JOHNSTONE versus BRIAN MURPHY and TAWANDA COLLINS MUPINI and SHEILA ANNE MURPHY and VERACITY BUSINESS SOLUTIONS (PVT) LIMITED HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 1 April 2025 Summons Commencing Action S. Zishiri, for the plaintiff M. Mbuyisa, for the defendant MAMBARA J: This matter comes before this Court as an application for absolution from the instance at the close of the plaintiff’s case. The plaintiff, Ms. Helen Judith Johnstone (“the Plaintiff”), sues the defendant, Mr. Brian Murphy (“the Defendant”), for damages allegedly arising from professional negligence. At the close of the plaintiff’s case, the defendant applied for absolution from the instance, essentially arguing that the Plaintiff has failed to establish a prima facie case upon which a reasonable court, acting carefully, might find in her favour. The plaintiff’s late husband’s estate included immovable property and a motor vehicle, and the proceeds from the sale were allegedly entrusted to the defendant. The plaintiff maintains that the defendant was, at various points, instructed to preserve the value of these funds in foreign currency (United States Dollars) and/or to remit such funds to her foreign bank account, or alternatively to place them in an approved “blocked funds” arrangement. The plaintiff contends that the defendant’s failure to do so, or his alleged negligence in carrying out the plaintiff’s instructions, caused her financial loss, especially in view of monetary and legislative changes in Zimbabwe. The defendant disputes these allegations and contends there was no binding or formal engagement to act as an expert in preserving foreign currency. Further, the defendant argues that, even on the plaintiff’s own version, the complained-of currency losses were caused by changes in Zimbabwean law and exchange-control policies (particularly Exchange Control Directive RT120/18 and Statutory Instrument 33 of 2019), which were outside his control. Having heard the testimony of the plaintiff and her witness, this Court must determine whether, at the close of the plaintiff’s case, there is enough evidence upon which a reasonable court might find for the plaintiff. If not, absolution from the instance must be granted, thereby sparing the defendant from the burden and expense of mounting a defence against a claim that cannot, on the existing evidence, succeed. FACTUAL AND PROCEDURAL BACKGROUND The plaintiff’s late husband’s estate was registered under DR 2579/17. The immovable property in Harare was sold for US$135,000, and a motor vehicle for US$2,000. After expenses (and certain other distributions), the amount available to the plaintiff was alleged to be around US$105,650. It is undisputed that she resides either in the United Kingdom or elsewhere outside Zimbabwe, whilst the defendant resides (or conducts business) in Zimbabwe. According to the plaintiff’s version, she relied on the defendant to transfer or preserve these sums in foreign currency on her behalf. She contends that the defendant held himself out as having expertise in foreign currency remittances, estate administration, and dealing with Zimbabwean exchange-control processes. The plaintiff says that various email exchanges (which were also copied to the plaintiff’s son, Andrew Johnstone) reveal that the defendant took instructions to ensure the sum remained in US dollars or, alternatively, to apply to the Reserve Bank of Zimbabwe (“RBZ”) to have the funds recognized as blocked, preserving their foreign currency value. The plaintiff alleges that she eventually discovered that her money had been converted into local currency (initially bond notes, then RTGS, and later ZWL) by operation of law, effectively reducing her US$105,650 proceeds to a fraction of that sum in real terms. She attributes this result to the defendant’s negligence or failure to follow proper instructions. The defendant, on the other hand, disputes these allegations and pleads that there was no formal contract or legal duty of care arising at a level akin to a professional mandate in financial advisory or brokerage services. The defendant further contends that he could not have foreseen or prevented policy pronouncements, including Statutory Instrument 33 of 2019, that affected the re-denomination of the plaintiff’s proceeds from US dollars to local currency. In his view, the plaintiff and her son fully understood the risk of Zimbabwean monetary changes, yet proceeded to keep the proceeds in Zimbabwe, hoping to find a way to remit them. Ultimately, the defendant says, the re-denomination was a force majeure caused by legislative enactments, not by any negligence on his part. At trial, the plaintiff and her son testified. After they closed the plaintiff’s case, the defendant applied for absolution from the instance, arguing that there was no evidence upon which a court might reasonably find in the plaintiff’s favour regarding professional negligence or breach of duty. THE DOCTRINE OF ABSOLUTION FROM THE INSTANCE Under Zimbabwean civil procedure, absolution from the instance is a mechanism whereby the court ends the case at the close of the plaintiff’s evidence if there is no evidence upon which a reasonable tribunal might find for the plaintiff. This is to ensure that a defendant is protected from the unnecessary expense of defending a matter that, on the plaintiff’s evidence, cannot succeed. If the plaintiff’s evidence is insufficient to show a prima facie case, then absolution is warranted. In Gascoyne v Paul & Hunter 1917 TPD 170 at 173, it was held that, at the close of a plaintiff’s case, the question is: “Is there evidence upon which a reasonable man might find for the plaintiff?” If the defendant elects not to lead any evidence, that question becomes whether the court ought to grant judgment for the plaintiff on the evidence led. If the plaintiff’s evidence falls short, then absolution is the correct remedy. Closer to home, the Supreme Court of Zimbabwe in cases such as Supreme Service Station (1969) (Pvt) Ltd v Fox & Gooldridge (Pvt) Ltd 1971 (1) RLR 1 (A) emphasized that the standard is whether the evidence is of such a nature that a court might reasonably find for the plaintiff. One need not decide conclusively that the court “should” or “would” find for the plaintiff, only that the evidence is capable of supporting such a finding. In United Air Carriers (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) at 343B, the Court observed: “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.” In the context of professional negligence claims, a plaintiff must adduce some evidence on (a) the existence of a duty of care, (b) the standard of care and expertise required, (c) a breach of that standard, and (d) a causal link between that breach and the alleged loss. If the plaintiff’s own evidence fails to prove or suggest that the defendant owed and breached such a duty, the claim cannot stand. Courts have repeatedly emphasized that, in determining an application for absolution, the question is whether there is any evidence upon which a reasonable court, applying its mind properly to such evidence, might find for the plaintiff. The test is not whether the court ought or should find for the plaintiff, but whether it might. If the plaintiff’s case is so lacking that no reasonable court could find in their favour, absolution is appropriate. In criminal proceedings, the procedure allowing an accused to seek discharge at the close of the State’s case is closely analogous. Where the State’s evidence is too weak to warrant putting the accused to their defence, a court will discharge the accused and end the trial. Although the evidentiary burdens differ (beyond a reasonable doubt in criminal trials; on a balance of probabilities in civil claims), the principle that a defendant or accused should not face the burden of further defence where no prima facie case exists remains constant. SUMMARY OF THE EVIDENCE LED BY THE PLAINTIFF The plaintiff testified that she was the sole beneficiary of her late husband’s estate and that the net sale proceeds, after expenses, amounted to approximately US$105,650. Residing outside Zimbabwe, she entrusted the defendant with handling the funds—both to preserve their value in foreign currency and, if feasible, to remit the money abroad or otherwise formally register it with the Reserve Bank of Zimbabwe as blocked funds. She relied heavily on numerous emails exchanged between the defendant and herself (and her son, Andrew Johnstone), in which the defendant allegedly assured her he was knowledgeable about exchange-control processes and would manage or invest the sums accordingly. Over time, no remittance materialized, and the plaintiff received repeated messages that monetary policies in Zimbabwe had changed, culminating in the enactment of Statutory Instrument 33 of 2019, which effectively re-denominated certain US-dollar balances into RTGS at a one-to-one rate. The plaintiff testified that the defendant never produced a statement or similar proof to show the funds remained in US dollars or that any official blocked-funds registration had been done. She eventually discovered that her inheritance had been converted into local currency, leaving her with a far smaller sum in real US-dollar terms than she originally expected. Under cross-examination, the plaintiff acknowledged that she had not provided the defendant with definitive written instructions mandating him to apply for blocked funds on her behalf. She also admitted she was aware of exchange-control restrictions and recognized that, after SI 33 of 2019, many foreign-currency balances within Zimbabwe were forcibly converted to local currency. Nonetheless, she insisted that the defendant was negligent in failing to implement safeguards or to alert her promptly and meaningfully to the risk. Andrew Johnstone’s testimony broadly corroborated that of the plaintiff, particularly regarding the defendant’s representations of expertise and the shared understanding that the defendant would find a way to preserve or remit the funds. However, he likewise could not identify a specific document or instruction proving that the defendant was formally tasked with completing a particular legal process that the defendant then neglected. Andrew Johnstone argued that the defendant, presenting himself as knowledgeable in Zimbabwe’s exchange-control procedures, had a professional or quasi-professional obligation to see that the money was at least lodged in a safe or recognized mechanism to preserve USD value. He insisted that the plaintiff and he had relied on the defendant’s advice, hoping to mitigate or avoid the risk of currency erosion. 4.8 Under cross-examination, Andrew Johnstone admitted that the defendant repeatedly advised them about the changing regulatory landscape. He could not point to a definitive email from the defendant explicitly stating: “I have completed the formal blocked funds registration for your benefit” or “I have submitted an application to the RBZ.” Indeed, it emerged that the parties were continuously exploring ways to move the money, but there was no documentary proof that a final arrangement was concluded or instructions were robustly acted upon. LEGAL ANALYSIS AND APPLICATION OF THE TEST In a claim for professional negligence or negligence more generally, the Plaintiff must show that: The defendant owed her a duty of care of a professional nature. That the standard of care required was that of a reasonable professional with relevant expertise under the circumstances The defendant breached that duty by failing to act as a reasonably prudent professional (or person) would under similar circumstances. The breach caused the losses complained of. In many jurisdictions, including Zimbabwe, South Africa, the United Kingdom, and the United States, the question of duty in a negligence case often turns on whether the parties had a recognized relationship (for instance, attorney-client, doctor-patient, or a formal contract for financial advisory). If no such relationship is established, or if the alleged professional obligations were too vague or indefinite, the claim may fail. From the plaintiff’s own evidence, it is not fully established that the defendant was acting under a formal professional mandate, such as one would find between a regulated financial advisor and a client. The defendant appears to have been someone known through mutual acquaintances, who presented himself as conversant with foreign currency matters. There was no written contract clearly specifying a professional engagement or imposing a recognized standard of care akin to that owed by a registered practitioner in the financial services sector. While Zimbabwean law recognizes that a duty of care can arise informally in certain circumstances, the plaintiff has not proffered direct evidence that the defendant expressly undertook a legally binding duty to preserve the inheritance in foreign currency or to process a “blocked funds” arrangement. Instead, the plaintiff’s testimony suggests repeated discussions, hopes, or intentions, but no record of formal instructions that the defendant was required—on penalty of professional negligence—to effect. If a court is to find that a defendant was professionally negligent, the plaintiff must at least offer some indication of: The recognized professional capacity of the defendant (e.g., a licensed financial advisor, or a legal practitioner specifically retained). The breach, i.e., the acts or omissions contrary to the standard of that profession. Clear instructions or a specific recognized function that the defendant undertook and then performed negligently. Even if one assumes that some sort of duty arose from the verbal or email exchanges, the plaintiff’s evidence did not concretely establish the defendant’s breach of a defined standard. The plaintiff did not produce any document demonstrating that the defendant had been unequivocally instructed to set up a blocked-funds arrangement with the Reserve Bank of Zimbabwe, or that such an arrangement was readily available during that time frame. The record suggests that the plaintiff and her son were well aware of the shifting legislative environment but relied on the defendant’s informal advice about possible solutions. When the country’s monetary regime changed under SI 33 of 2019, balances in US dollars on deposit inside Zimbabwe were converted to RTGS—a move that was legally mandated and beyond the defendant’s personal control. Regarding causation, the question is whether, but for the defendant’s alleged negligence, the plaintiff’s money would have remained in hard currency. The plaintiff did not bring forth evidence showing that a timely application to the Reserve Bank for blocked funds would have succeeded, or that an immediate transfer abroad was feasible under the strictures of Zimbabwean exchange-control rules. The re-denomination introduced by SI 33 of 2019 was not something the defendant could avoid by unilateral action. Absent proof that the defendant blatantly failed to follow a clear, legally viable instruction, it is difficult to conclude that he was the cause of the plaintiff’s loss. On the evidence, the plaintiff’s own witnesses admitted that they were aware of the legislative environment in Zimbabwe. They also conceded that no documentary or other proof exists that the defendant was expressly mandated to do more than offer informal suggestions and keep an eye on the possibility of externalizing the money. The plaintiff did not produce any letter, contract, or expert opinion demonstrating that a recognized professional standard was breached. There is no dispute that statutory instruments—particularly SI 33 of 2019—converted certain United States Dollar balances in Zimbabwean banks to RTGS (later ZWL) at a 1:1 rate. Subsequent exchange rates led to significant devaluation. If the root cause of the plaintiff’s loss was the Government’s promulgation of these new laws, then establishing negligence by the defendant requires at least some proof that he could have avoided that statutory re-denomination by promptly transferring or blocking the funds. However, the plaintiff’s evidence did not demonstrate that she had delivered to the defendant, in timely fashion, a foreign account number along with a clear mandate that “You must proceed immediately, no matter what, with the transfer.” Rather, the emails reflect ongoing deliberations, references to RBZ approvals, and a general uncertainty about whether such approval was even available. One cannot impose liability on a defendant for failing to outrun or circumvent the law, particularly where such law is strictly enforced by central bank policy. Without evidence that the defendant clearly neglected a feasible legal pathway to preserve the funds (for instance, by lodging a formal blocked-funds application under the correct procedures), the Court cannot assume wrongdoing. The plaintiff’s case needed to supply proof of some step that the defendant was mandated to, and could realistically, take—but did not. Such evidence is lacking on the record. At best, the plaintiff’s case establishes that she hoped or expected the defendant to manage the money in a way that avoided currency risk, but that macroeconomic changes intervened. Hopes and expectations do not suffice for a legal claim in negligence where the plaintiff has not pinned down a specific duty or a clear breach. THE ABSOLUTION TEST Applying the test for absolution from the instance, the Court asks if there is sufficient evidence upon which a reasonable court might find for the plaintiff. That assessment focuses on whether the plaintiff’s version, taken at face value, discloses a prima facie case regarding duty, breach, and causation. The evidence, as it stands, indicates that the primary driver of the plaintiff’s financial loss was the statutory re-denomination of foreign currency balances under Zimbabwean law. The plaintiff’s argument, resting on the defendant’s alleged professional negligence, lacks the necessary proof of a clear mandate, a clear breach, and a direct causal relationship between any breach and the currency losses. Put simply, no reasonable tribunal could find for the plaintiff based on the evidence presented. For absolution from the instance, the Court does not weigh credibility in fine detail or prefer one side’s story over another. Instead, it asks whether there is sufficient evidence to call upon the defendant to answer. The Court concludes that the plaintiff’s own case fails to present a coherent, prima facie basis upon which to impose liability for professional negligence. Courts in Zimbabwe, South Africa, the United Kingdom, and the United States all recognize that a defendant should not be put on their defence if the plaintiff’s evidence is insufficient to sustain a claim. In Zimbabwe, the landmark case of Gascoyne v Paul & Hunter 1917 TPD 170 (as referenced in local jurisprudence) and later decisions have cemented the principle that, at the close of the plaintiff’s case, the central question is whether a reasonable court “might” find for the plaintiff on the strength of the evidence. If not, absolution is granted. In Supreme Service Station (1969) (Pvt) Ltd v Fox & Gooldridge (Pvt) Ltd 1971 (1) RLR 1 (A), the Court underscored that if the plaintiff’s case is so inherently lacking in proof that the court cannot envision a finding in the plaintiff’s favour, absolution should be granted. The same principle appears in United Air Carriers (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S), where the Supreme Court explained that the plaintiff must at least furnish some evidence on all elements of the claim to avoid absolution. South African law is broadly similar, as seen in cases like Gascoyne v Paul & Hunter (from which local doctrine partly derives) and the subsequent line of authorities clarifying that a court should not require a defendant to present a defence if the plaintiff’s case, viewed in the most favourable light, does not pass the threshold of a prima facie claim. Similarly, in Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88 (SCA), the Supreme Court of Appeal recognized that the plaintiff must present evidence upon which a reasonable court could find in her favour on all elements of the claim. In the United Kingdom, while the mechanism differs somewhat—often involving applications for summary judgment or submissions that there is “no case to answer”—the principle is that a claim lacking sufficient evidence on essential elements should be dismissed. In Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794, for instance, the Court of Appeal emphasized that if there is no realistic prospect of success on the available evidence, there is no reason to proceed. In the United States, Rule 50 of the Federal Rules of Civil Procedure allows a court to grant judgment as a matter of law (formerly known as a “directed verdict”) if no reasonable jury could find for the plaintiff. The threshold is not whether the court would or should find for the plaintiff, but whether the evidence is sufficient to enable such a finding at all. Where it is not, judgment for the defendant must issue. All of these comparative approaches echo the same foundational idea: a defendant must be spared the burden of defence if the plaintiff’s evidence, taken at its highest, still cannot sustain a verdict in the plaintiff’s favour. FINDINGS This Court, after considering all the evidence led by the plaintiff, finds that the plaintiff has not established a prima facie case sufficient to shift the burden to the defendant. There is no basis in the evidence to conclude that the defendant was bound by a formal duty of care at the level contended by the plaintiff, or that he negligently failed to carry out any specific, clearly mandated act that could have prevented the re-denomination and consequent loss of foreign-currency value. The re-denomination itself was a policy and legislative act outside the defendant’s control, and the plaintiff did not show that a viable, timely route existed to safeguard her funds that the defendant negligently ignored. CONCLUSION AND ORDER In civil litigation, absolution from the instance spares a defendant from prolonged proceedings where the evidence, taken at face value, cannot support a judgment against them. Here, the plaintiff’s evidence lacks sufficient proof of duty, breach, or causation. The legislative changes underpinning the plaintiff’s misfortune were not orchestrated by the defendant, and the plaintiff has not shown that the defendant breached any enforceable obligation that would have avoided or mitigated the impact of those changes. Absolution from the instance must therefore be granted. IT IS ORDERED THAT: The defendant’s application for absolution from the instance be and is hereby granted. The plaintiff’s claim be and is hereby dismissed. The plaintiff shall bear the costs of suit. Mambara J: ………………………………………… Sai Zishiri, plaintiff’s legal practitioners Mtetwa & Nyambirai, defendant’s legal practitioners