- April 26, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The plaintiff, a building owner, entered into a building contract with the second defendant. The plaintiff had had an initial contract with Nathan Auala who represented his company, Silver Lining Investment Properties (Pty) Ltd (SLIP) (the first defendant). In subsequent emails to the plaintiff, Aula informed the plaintiff that he and Guy van den Berg (the second defendant, who represented JL Group Co (Pty) Ltd and who was SLIP’s contact person) were partners. He assured the plaintiff of quality workmanship that was ‘fairly priced’. The claim of the plaintiff, the building owner, was primarily this: An order confirming the cancellation of the agreement (‘the building contract’ ) between the plaintiff and the first defendant and second defendant (and/or third defendant); payment in the amount of N$605 936.65 and interest on the said amount at the rate of 20 percent per annum from the date of judgment to date of payment in full.
After the close of the plaintiff’s case, the first defendant brought an application for absolution from the instance.
The crisp defence of the first defendant was couched neatly and concisely in the following terms, namely, that ‘the first defendant only assisted the second defendant with his application process with Standard Bank (the financier of the building project) and that no partnership existed between the first defendant and the second defendant as respects the execution of the building project’, that is, over and above the assistance with ‘the application process’.
In the instant proceeding, the judge pointed out that in the common law tradition, judges are not required to reinvent the wheel when it comes to applying legal principles. Referring to a previous absolution application, the judge reiterated the principles and approaches used in that case.
Parker AJ:
In Neis v Kasuma HC-MD-CIV-ACT-CON-2017/000939 [2020] NAHCMD 320 (30 July 2020), I stated thus:
“[6] The test for absolution from the instance has been settled by the authorities. The principles and approaches have been followed in a number of cases. They were approved by the Supreme Court in Stier and Another v Henke 2012 (1) NR 370 (SC). There, the Supreme Court stated:
“[4] At 92F-G, Harms JA in Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) referred to the formulation of the test to be applied by a trial court when absolution is applied at the end of an appellant’s (a plaintiff’s) case as appears in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H:
“. . . when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, or ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)”
“Harms JA went on to explain at 92H – 93A:
“This implies that a plaintiff has to make out a prima facie case — in the sense that there is evidence relating to all the elements of the claim — to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4 ed at 91-2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is evidence upon which a reasonable man might find for the plaintiff” (Gascoyne (loc cit)) — a test which had its origin in jury trials when the reasonable man was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another ”reasonable” person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interest of justice. . . .”
‘[7] Thus, in Dannecker v Leopard Tours Car & Camping Hire CC (I 2909/2006) [2015] NAHCMD 30 (20 February 2015), Damaseb JP stated as follows on the test of absolution from the instance at the close of plaintiff’s case:
“The test for absolution at the end of the plaintiff’s case
[25] The relevant test 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 to) find for the plaintiff. The reasoning at this stage is to be distinguished from the reasoning which the court applies at the end of the trial; which is: ‘Is there evidence upon which a Court ought to give judgment in favour of the plaintiff?’
[26] The following considerations (which I shall call ‘the Damaseb considerations’) are in my view relevant and find application in the case before me:
(a) Absolution at the end of the plaintiff’s case ought only to be granted in a very clear case where the plaintiff has not made out any case at all, in fact, and law;
(b) The plaintiff is not to be lightly shut out where the defence relied on by the defendant is peculiarly within the latter’s knowledge while the plaintiff had made out a case calling for an answer (or rebuttal) on oath;
(c) The trier of fact should be on the guard for a defendant who attempts to invoke the absolution procedure to avoid coming into the witness box to answer uncomfortable facts having a bearing on both credibility and the weight of probabilities in the case;
(d) Where the plaintiff’s evidence gives rise to more than one plausible inference, any one of which is in his or her favour in the sense of supporting his or her cause of action and destructive of the version of the defence, absolution is an inappropriate remedy;
(e) Perhaps most importantly, in adjudicating an application of absolution at the end of the plaintiff’s case, the trier of fact is bound to accept as true the evidence led by and on behalf of the plaintiff, unless the plaintiff’s evidence is incurably and inherently so improbable and unsatisfactory as to be rejected out of hand”.
‘[5] Another important principle that the court determining an absolution application should consider is this. The clause ‘applying its mind reasonably’, used by Harms JA in Neon Lights (SA) Ltd ‘requires the court not to consider the evidence in vacuo but to consider the evidence in relation to the pleadings and in relation to the requirements of the law applicable to the particular case (Bidoli v Ellistron t/a Ellistron Truck & Plaint 2002 NR 451 at 453G).
‘[13] The court in Bidoli stated that the clause ‘applying its mind reasonably’, used by Harms JA in Claude Neon Lights (SA) Ltd v Daniel ‘requires the court not to consider the evidence in vacuo but to consider the evidence in relation to the pleadings and in relation to the requirements of the law applicable to the particular case’.’-H:
“. . . when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, or ought to) find for the plaintiff (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4).
The court found that on the totality of the evidence and judging by the external manifestations, the plaintiff had proved to a prima facie degree that the parties to the building contract were the plaintiff on the one hand and the partners on the other. The court found further that the plaintiff has proved to a prima degree that she performed her obligations under the contract, but the partners did not, because they abandoned the site leaving the project uncompleted. Therefore, as a direct result of the breach, the plaintiff suffered damages as she had to borrow moneys from the bank to pay for the completion of the outstanding works. The plaintiff’s expert witness placed evidence before the court, establishing the value of the works completed and the value of the outstanding works. In the result, the court found that the plaintiff had made out a prima facie case, requiring an answer from the defendant.
The court, therefore, held the following:
a) There is no formality prescribed by the law for the settling of a partnership agreement. The plaintiff only needed to prove to a prima facie degree the essentialia of a partnership, as set out by the court.
b) The question for the court, when an absolution application is brought at the close of the plaintiff’s case, is whether the plaintiff has crossed the low threshold of proof that the law has set when the plaintiff’s case is closed but the defendant’s case is not
In the result, the application for absolution from the instance was dismissed with costs, and such costs shall include the costs occasioned by the employment of one instructing counsel and one instructed counsel.