ONISMO RUTSITO

versus

DELTA BEVERAGES, a division of

DELTA CORPORATION LIMITED

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 7, 8, 9 March 2011

Civil Trial

I.E.G. Musimbe, for the plaintiff

Adv T. Mpofu, for the defendant

            BERE J:  At the close of the plaintiff’s case the defendant swiftly moved to make an application for absolution from the instance.

            What runs through the plaintiff’s declaration is the allegation that the defendant lacked due diligence and care in the manufacturing of its product to the extent that the product itself is not safe, clean, health and fit for human consumption.

            The plaintiff testified  himself and called two more witnesses one of whom testified to corroborate the plaintiff’s evidence that he had partaken of contaminated coke.  That the plaintiff drank coke which was not safe for human consumption could not have been successfully challenged by the defendants as none of its representatives were present when the partaking took place.  The thrust of the defendant’s defence as demonstrated by the cross-examination was the source of the drink in question.

            The second witness called by the plaintiff alleged he was also a victim of contaminated coke on an entirely different occasion and in the court’s view, his unsolicitated testimony tendered to corroborate the plaintiff’s contention that all was not well in the defendant’s manufacturing of the product in question.

            Exhibits 8 and 9 which were produced by the plaintiff again tended to show that there were some foreign substances in the defendant’s coke and this appeared, in the eyes and mind of the court to show that there was something amiss with the defendant’s product.

            The plaintiff testified that as a  result of drinking the contaminated coke he ended up incurring medical expenses some of which even the defendant’s counsel was unable to challenge at the time he made an application for absolution from the instance. 

            It appeared the defendant’s counsel’s position was that the plaintiff ought to have used the defendant’s testing facilities at the defendant’s place if he felt there was something wrong with the coke that he drank.  I was not persuaded to accept this argument.  In fact it raises quite an interesting debate for one to argue that it would have been reasonably expected for the plaintiff, being a victim of the alleged negligence of the defendant to make use of the defendant’s facilities to either confirm or exonerate the defendant’s alleged lack of care and due diligence.

            The plaintiff alleged in his declaration that he had suffered general damages in the sum of US$20 000.00 for distress and anxiety.  The defendant counsel argued that in acquilian action distress and anxiety are not recognisable.  This obviously is a legal issue which both the plaintiff and the defendant would have to deal with when all the evidence in this case (including the defendant’s) have been gathered.

            Authorities are agreed on the test to be applied in deciding an application for absolution from the instance.  GUBBAY CJ eloquently laid down the legal position in the following:

“ A plaintiff will successfully with stand such an application if, at the close of his case there is evidence which a court, directing its mind reasonably to such evidence could or might (not should or ought to) find  for him.  See supreme SVC Station (1969) (Pvt) Ltd vs  Fox and Goodridge (Pvt) Ltd 1971 (1) RLR (A) at SD – E ; Lowrence vs  Ragar Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (s) at 158/B – E.”[1]

            Could or might the court in the instant case find for the plaintiff?    In the court’s view the answer must be in the affirmative.  The totality of the pieces of evidence put together by the plaintiff appear to me to establish a prima facie case of negligence on the part of the defendant.  The defendant must not be denied the opportunity to explain its manufacturing  process to court by this application for absolution from the instance.

            In both cases[2] cited by counsel for the defendant, the enquiry was allowed to run its full course and the court was only able to make a proper determination after assessing the defendant’s evidence together with that of the plaintiff.  It is clear to me that in both cases the courts made a specific finding that there was a likelihood or probability of interference with the defendant’s process after the product had left the production and distribution line on its way to the retailer.

            These findings were not made as a result of conjencture but followed a thorough analysis of the evidence placed before the court by both parties.  I am unable to speculate on such finding at this stage.  The defendant must give evidence to rebut the plaintiff’s allegations which have been reasonably corroborated by the witnesses who testified.

            Consequently, the application for absolution from the instance is dismissed with costs in the cause.

IEG Musimbe & Partners, Plaintiff’s legal practitioners

Messrs Dube, Manikai & Hwacha, defendant’s legal practitioners