CIVIL PRACTICE – REQUIREMENTS FOR APPLICATION FOR ABSOLUTION FROM THE INSTANCE

Namibia Students Financial Assistance Fund v Konghola  NAHCMD (23 January 2023)

 

The plaintiff instituted action against the defendant claiming payment from the defendant in the amount of N$529 250. The plaintiff alleges that the defendant, while employed by the plaintiff, unlawfully, dishonestly and fraudulently caused and/or facilitated payment from the plaintiff in the amount of N$529 250 to a certain Nelson Ndeitunga Sheefeni, who was not entitled to receive such payment. As a result of the defendant’s aforesaid conduct, the plaintiff suffered financial loss in the amount of N$529 250. The defendant defended the action and denied having unlawfully, dishonestly or fraudulently caused and/or facilitated the aforesaid payments in favour of Nelson Ndeitunga Sheefeni.

 

At the end of the plaintiff’s case, the defendant applied for absolution from the instance. The court dismissed the application for absolution. USIKU J considered the application.

 

It is trite law that the test for absolution from the instance is whether there is evidence at the end of the plaintiff’s case, upon which a court could or might 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’ (Danneck v Leopard Tour Car and Camping Hire CC (I 2909/2006) [2015] NAHCMD 30 (20 February 2015) para 25).

 

It is further trite that 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 in law. In adjudicating an application for absolution, 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.

 

Applying the above legal principles to the present facts, it is apparent that the plaintiff placed evidence before the court alleging that:

 

(a)          the defendant, while employed by the plaintiff, had unlawfully, fraudulently and dishonestly or facilitated payments from the Fund, in the amount of N$529 250, to Nelson Ndeitunga Sheefeni;

(b)          Nelson Ndeitunga Sheefeni is not a person entitled to the aforesaid payment;

(c)          as a result of the aforesaid conduct by the defendant, the plaintiff had suffered financially loss in the amount of N$529 250, which the plaintiff now claims from the defendant.

 

On the facts of the present matter, it cannot be said that the evidence led by and on behalf of the plaintiff is incurably and inherently improbable or unsatisfactory as to be ejected out of hand.

 

The facts that:

 

(a)          the documents initiated by the defendant were verified by the Supervisor and Manager for payments;

(b)          Nelson Ndeitunga Sheefeni has not been located to ascertain the reason for his receipt of the monies or whether or not he knows the defendant;

(c)          the issue of whether or not the defendant is being investigated by the Anti-Corruption Commission; etc,

are not decisive of the issue at hand at the present moment. The crucial issue at the moment is whether, at present moment, there is evidence upon which the court could or might find for the plaintiff.

 

‘[31]       Having assessed the evidence led by and on behalf of the plaintiff, I am of the opinion that there is evidence upon which a court, applying its mind reasonably to such evidence, could find for the plaintiff. For the aforegoing reason, the application for absolution from the instance stands to be dismissed with costs.’

 

As a result, the application for absolution for instance was dismissed with costs for the application.