IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/456/2007
In the matter between:
KALI THAANYANE t/a Kay Cee’s Resturant Plaintiff
LESOTHO ELECTRICITY CORPORATION Defendant
In application for absolutionfrom the instance
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 13th Day of July 2011
1. This was an application for absolution from the instance at the end of Plaintiff’s case. Plaintiff was represented by Mr Makhera and Defendant was represented by Mr Shale. Plaintiff sued Defendant for damages for loss suffered, and claimed a sum of Two Hundred and Sixty One Thousand Nine Hundred and Thirty Nine Ten Cents (M261,939.10). This was for damage to his stock of meats, equipment and other items in his butchery business resulting, allegedly, from power outage of electricity power supply under control of Defendant as an electricity supplying company.
2. Various documents were put in as exhibits and as documentary evidence by Plaintiff. Much critical comment followed over them by Mr Shale as will be clear hereinafter. Two witnesses come in for Plaintiff. It was Plaintiff’s manager Tankiso Michael Letsosa (PW1) and Plaintiff (PW2) himself. The Plaintiff closed his case.
3. While the principles of absolution from the instance were clearly understood as shown in both Counsels’ Heads of Arguments Mr Shale’s approach, on absence of a prima facie case, in his argument, was a simple one. He said that there was a gaping hole in the Plaintiff’s case even at this stage. He argued as follows:
4. Firstly, that power outage of the 21st January 2011 which was duly announced by Defendant and another “unplanned” outage which followed from 8.00 a.m to 4.00 in the afternoon when power was only restored on the 24th January 2007 could not have been caused by the negligence of the Defendant. Alternatively, even if there could have been negligence, which the Plaintiff did not prove, it did not mean that there had been wrongfulness in terms of the principles of our law of delict.
5. Secondly, as again submitted, such alleged damage to Plaintiff’s butchery stock has not been proved even prima facie when account is taken of the following. Firstly, what can be taken as the main proof of any such damage is extremely unreliable, more especially when it is unsupported and uncorroborated. It was this exhibit “B” from the Health Inspector of Maseru District dated the 23/02/2007 being a certificate of condemnation of spoilt foodstuffs”. It shows that the under mentioned foodstuffs were “seized condemned and destroyed as unfit for human consumption” as per described reasons.
6. According to Mr Shale still on the issue of the above “certificate” the first aspect that caused the basis of doubt was that while the power outage was alleged to have occurred on the 24th January 2007 it was only on the 23rd February 2007 when it was said that the “inspection of the grocery” was done. One factor, as contended, which was a basis for doubt was that it was almost after 30 days that the alleged inspection was done. The crisp question would then be where these meats were between the 23rd January 2007 the time of outage and the 23rd February 2007 when the inspection was done. There was another reason for worrying about this matter.
7. While the evidence of PW1 and PW2 was that the said inspection was done on a date earlier than 23rd February 2007. Mr Shale was not satisfied that, if it was at earlier date then the inspector or the maker of the exhibit “B” should have come forward to testify for the fact. Mr Shale argued that this is tied to another piece of evidence that caused doubt and introduced yet another doubt.
8. Thirdly, according to Plaintiff’s evidence during this outage, while Plaintiff was afraid of loss or the meats going bad he took the carcasses and meats and other items to a friend who had a butchery at Ha Mabote and to a local butchery owned by one Ntja. No impression was given at that time that there had already been damage to the meats or that some were left unsalvaged. More particularly even those that were salvaged were not detailed.
9. Fourthly, other stock was brought either during the outage, well after the outage or on dates quite very early before the 21st January 2007 that such stock was unlikely to have existed or would found in the butchery. It is noted as follows (a) exhibit “M1” shows stock bought on 23th January 2007 (b) exhibit “M1” shows stock bought on 18th December 2006 (M5,076.97) (c) exhibit “M3” shows stock bought 22nd January 2007 (M5,340.00) (d) exhibit “M” shows stock bought on 4th January 2007 (e) exhibit “M4” shows stock bought on 9th February 2007 (f) exhibit “M6” shows stock bought on 18th February 2007 (M3,560.00) (g) exhibit “M5” 7th December 2006 (M3,383.65), (h) “M6” 11th December 2006 (M5,156.25), (i) exhibit “M7” 11th December 2006, M 792.50) (j) exhibit “M8” 11th December 2006 (M1,398.60), exhibit H 15th January 2007 (M1,123.42), (l) exhibit 1 23rd January (M1,318.20), (m) exhibit receipt No. 51665 23rd January 2007, (M1,318.20) (n) exhibit 18th January 2007, (M2,119.00) (o) exhibit dated 18th January 2007, (M2,119.01).
10. As Mr Shale submitted further in the alternative, if the above exhibits proof existence of the stock if cannot however defeat the argument that the most likelihood is that this stock was salvaged even in the version of the Plaintiff himself. Before coming to the aspect of the repair to the compressor/deep freezer the above stock, including other purchases not listed above, can only come to any amount of M47,222.35, a far cry from even a quarter of the damages claimed.
11. While some four bewyses showing purchases of animals for slaughter were exhibited see “C” “D” “E” and “F” this court was not told of the value or specifically the purchase prices of the animals. I took that this gave rise, yet again, to that failure by Plaintiff to prove damages suffered by Plaintiff in respect of those animals allegedly bought per the bewyses.
12. But most pertinently, looking at above exhibit “E”, it reflects a cow which was bought on 18th June 2006 that is 6 months before the event. Other purchases were made on 23rd January 2007 and 24th January 2007 when there was no electricity according to Plaintiff and his witness. Also, as to those goods bought on 9th July 2007 that is after the incident, the witness conceded that this was a fatal flaw on the Plaintiff’s case.
13. Indeed, it was put to PW2 (the Plaintiff) that the documents which form the basis of the claim were inaccurate because of the problems discussed above, therefore even the amount claimed cannot reflect the actual loss suffered by Plaintiff due to alleged negligence. Plaintiff conceded this important aspect which was central to proving or disproving the claim even at this stage. He could only contend that it was only in some of the documents but not all of them.
14. Now to the compressor/deep freezer. It was significant that the Plaintiff did not lead evidence to show how the compressor/deep freezer was broken as a result of the negligence on the part of the Defendant. Whatever has come out as an attempt to do so in exhibit “L” an invoice, it shows repair on the freezer room, compression replacement and other items presumably part of or related to the compressor including labour ending with the total sum of M21,137.90. Without support from a witness explaining the damage this became valueless as evidence to prove damage of the equipment. Normally such evidence would vouch for the fair, necessary and reasonable repair of equipment. No wonder no such attempt was made by either PW1 or PW2. Indeed this goes back to the question of how this if it is a result of the outage and how it has occurred as a result of negligence. Unfortunately this was not treated in that manner at all. I was in respectful agreement with the Defendant’s Counsel.
15. Mr Shale was insistent that whether outage is proved (as it was admitted) that itself or by itself does not point at wrongfulness either on the basis of negligence, breach of legal duty or omission of any kind. If such existed Plaintiff has not been able to point out why and how. If, alternatively, Plaintiff relied on vicarious liability of Defendant’s employees, he has not pointed out as to how this occurred. I agreed that the principles are as follows.
16. After the close of plaintiff’s case, before commencing its case, the defendant may apply for dismissal of the plaintiff’s claim. At this stage the question for determination by the court is whether there is evidence upon which a reasonable man might find for the plaintiff. That is, whether there is a prima facie case established against the defendant. See Dorbyl Vehicle Trading Finance Co. (Pty) Ltd v Maisa Matšaba CIV/T/659/1996 per Ramodibedi J (as he then was) on 30th August 1996 and Gascoyne v Paul and Hunter 1917 TPD 170 at173.
17. An application for absolution from the instance is akin to an application for the discharge of an accused at the close of the evidence for the prosecution in a criminal case. The court may grant absolution if the plaintiff has failed to establish an essential element of his claim, as was submitted by Defendant in the present case. See Ntombela v Minister of Police, 1985 (3) SA 571 (0).
18. In the present case, it would be interesting for the court to investigate whether on the evidence presented to it, it might find for the Plaintiff. The court will have to investigate whether Plaintiff has proved any negligence on the part of the Defendant. Whether Plaintiff’s machinery got broken and the goods got perished as a result of the alleged negligence. Lastly, whether the quantum of damages has been proved. It is submitted that on the evidence before the court Plaintiff had failed to adduce evidence to proof the above. My observations on the evidence indicated just that.
19. In my view it was to noteworthy that Plaintiff’s claim had been clustered together in a round figure. As such it was difficult for the court to sieve through to determine the quantum even for the purpose of whether the court could be inclined to believe PW2. This witness conceded that in some respects the claim was bad. It was also submitted that the court may not grant the prayers sought if it turns out that Plaintiff’s claim is in law non existent. In the cases cited below, the court found that it could not protect a right that did not exist. Plettenburg Bay Enterainment v Minister Van Wet Orde 1993 (2) SA 396. Melato Mokoena v Makarabo Mokoena & Others CIV/APN/216/2005 per Maqutu J. (as he then was) (unreported), 16/01/2007. This is more apposite to that inquiry whether there was negligence and/or wrongfulness. I have already decided that these were not proved.
20. On the authorities cited hereinabove, it was submitted that the Defendant ought to be absolved from the instance and the action be dismissed with costs at this stage. It was submitted further that no reasonable court might find for Plaintiff on the basis of the evidence presented before this court coupled with the glaring defects addressed hereinabove. It was submitted that Plaintiff has hopelessly failed to establish a prima facie case against the Defendant more especially the damages claimed. In the premises this action ought to be dismissed with costs. I agreed.
21. This claim is dismissed on absolution from the instance. Costs are awarded to the Defendant.
T. E. Monapathi
For Applicant : Adv. Makhera
For Defendant : Adv. Shale
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