- March 3, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
During October 2016, the plaintiff and a representative of the first defendant entered into a partly written, partly oral agreement regarding the production and delivery of 472 680 x 80mm pavers with a strength of 35mpa and 130 200 x 60mm interlock pavers also with a strength of 35mpa. The plaintiff would pay the first defendant the amount of N$2 309 195,41 in two equal installments, the first to be paid during October 2016 and the second installment as soon as half of the pavers were delivered. The plaintiff paid over N$1 154 597, 71 on 14 October 2016 and provided the first defendant with proof of payment. It was not disputed that 62300 x 80 mm pavers and 4200 x 60 mm pavers were delivered.
At the time that the plaintiff contracted the first defendant, the plaintiff, and Intek Construction CC were in a joint venture where they were contracted to build the Agricultural Technology Centre in Ongwediva, in Northern Namibia. It was further also the case that the first defendant was at the time the parties entered into an agreement, the property of Mr. Erwin Paulus. It was however sold some time after the agreement was concluded to Mr. Mark Wylie, who is also the owner of the second defendant.
The main claim in these proceedings was instituted against the first defendant and in the alternative, a claim was instituted against the second defendant should an assignment of rights and obligations from the first defendant be transferred to the second defendant. Two witnesses testified on behalf of the plaintiff and at the end of the plaintiff’s case, the defendants applied for absolution from the instance based on several grounds.
RAKOW J considered the applicable legal principles:
‘The basis for absolution from the instance
[17] The process for the application for absolution from the instance is set out in rule 100 of the High Court Rules but it however does not set out what needs to be considered. The test for granting absolution from the instance at the end of a plaintiff’s case is set out in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G – H, where Miller AJA said:
‘(W)hen 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.’
[18] In Ramirez v Frans and Others [2016] NAHCMD 376 (I 933/2013; 25 November 2016) para 28, this court dealt with the application for absolution and the principles applicable. Concerning case law, the following principles were extracted:
‘(a) (T)his application is akin to an application for a discharge at the end of the case for the prosecution in criminal trials i.e in terms of s 174 of the Criminal Procedure Act — General Francois Olenga v Spranger (I 3826/2011) [2019] NAHCMD 192 (17 June 2019), infra at 13 para 35;
(b) the standard to be applied is whether the plaintiff, in the mind of the court, has tendered evidence upon which a court, properly directed and applying its mind reasonably to such evidence, could or might, not should, find for the plaintiff — Stier and Another v Henke 2012 (1) NR 370 (SC) at 373;
(c) the evidence adduced by the plaintiff should relate to all the elements of the claim because in the absence of such evidence, no court could find for the plaintiff — Factcrown Limited v Namibian Broadcasting Corporation 2014 (2) NR 447 (SC);
(d) in dealing with such applications, the court does not normally evaluate the evidence adduced on behalf of the plaintiff by making credibility findings at this stage. The court assumes that the evidence adduced by the plaintiff is true and deals with the matter on that basis. If the evidence adduced by the plaintiff is, however, hopelessly poor, vacillating, or of so romancing a character, the court may, in those circumstances, grant the application — General Francois Olenga v Erwin Spranger;
(e) the application for absolution from the instance should be granted sparingly. The court must generally speaking, be shy, frigid, or cautious in granting this application. But when the proper occasion arises, and in the interests of justice, the court should not hesitate to grant this application — Stier and General Francois Olenga v Spranger (supra).’
Discussion
[19] At this stage, the court must look at the evidence adduced by the plaintiff and decide whether they indeed proved their claims or not. The court at this stage is not required to evaluate the evidence produced in order to make credibility findings. When evaluating the evidence produced, the court is of the opinion that the plaintiff indeed has made some case that requires an answer from the defendants and as such, the allegations and evidence produced by the plaintiff might be sufficient to prove at least part of the claims. The question regarding the calculations of the claim amounts can also be addressed by a simple calculation as it is possible to calculate the transport costs per paver as these costs were initially quoted separately. It is further possible to calculate the damages amount from the amounts tendered into evidence.
[20] For these reasons, I find that the plaintiff indeed tendered evidence upon which a court, properly directed and applying its mind reasonably to such evidence, could or might find for the plaintiff and accordingly the application for absolution is dismissed.’
As a result, the application for absolution from the instance was dismissed. Costs of the application were to be costs in the causes and the matter was postponed for fixing of a date for continuation of the trial.
Supeco Trading CC v S P Brick Warehouse CC and another (HC-MD-ClV- ACT-CON 2019 04471) [2023] NAHCMD 88 (3 March 2023)