IN THE HIGH COURT OF SWAZILAND
JUDGMENT
CASE No. 4294/ 2010
HELD AT MBABANE
In the matter between:
FANA FAKUDZE PLAINTIFF
And
DUMSANI MKHONTA DEFENDANT
Neutral Citation: Fana Fakudze v Dumsani Mkhonta [4294/2001] SZHC 51
[2018] (9 April 2018)
Coram: M. LANGWENYA
Heard: 17 October 2017
Delivered: 9 April 2018
Summary: Civil Procedure-plaintiff instituted action against the defendant based on abduction. The plaintiff alleges that in July 2010 the defendant abducted his daughter who was a scholar and under the plaintiff’s control at the time. Plaintiff alleges that consequent to the abduction, his daughter dropped out of school and suffered psychological trauma. According to the plaintiff, he also suffered psychological trauma as a result of the alleged abduction of his daughter by the defendant. The defendant’s plea is that of a bare denial. The plaintiff argued that his daughter was eighteen years at the time of the abduction while the defendant’s case is that the plaintiff’s daughter was twenty years at the time. The plaintiff did not provide the birth certificate of his daughter nor did he furnish the court with receipts of the amount of school fees he alleges he paid for his daughter.
In order to survive absolution from the instance, the plaintiff has to provide evidence relating to all the elements of the claim-evidence without which no court could find for the plaintiff.
That the plaintiff’s daughter suffered psychological trauma and consequently dropped out of school has not been proved by the plaintiff. Psychological trauma suffered by the plaintiff and his daughter has not been shown to have existed nor to be causally related to the alleged abduction.
Plaintiff has also failed to prove the existence of a causal link between the alleged abduction by the defendant and the damages he allegedly suffered.
Absolution from the instance granted.
JUDGMENT
Introduction
[1] The plaintiff’s claim arises from the events of 17 July 2010 in Mankayane where, it is alleged the defendant abducted Nonjabulo Fakudze and kept her at his home for two nights against her will.
After leading two witnesses, the plaintiff closed his case. Upon closure of the plaintiff’s case the defendant brought an application for absolution from the instance, which application was opposed by the plaintiff. This is a judgment on that application. In order to determine whether the plaintiff succeeded in discharging his onus, it is important to consider the factual matrix upon which the matter is predicated. The facts of the matter will be considered and then weighed against the prerequisites for absolution from the instance to be granted.
Background
[2] The plaintiff instituted action against the defendant for damages based on
abduction. The plaintiff argues that his daughter, Nonjabulo Fakudze who was eighteen years old in the year 2010 was abducted by the defendant. The plaintiff sued the defendant at the High Court for E28,000.00 (twenty-eight thousand Emalangeni) damages suffered by him by reason of the defendant having abducted Nonjabulo.
The summons was issued on 23 November 2010. On 9 March 2011 the defendant filed a notice of intention to defend the action. On 9 June 2011 the defendant served and filed a plea. The plea was essentially a denial of the plaintiff’s allegations.
The Plaintiff’s Particulars of Claim
[3] The facts giving rise to the action are fairly straight forward. In his particulars of claim the plaintiff alleged as follows:
On Friday 17 July 2010 Nonjabulo Fakudze, a daughter of the plaintiff and a scholar at Holy Rosary High School left home to go to school but did not return home. It was the evidence of the plaintiff that in the year 2010, Nonjabulo was under the control of the plaintiff who is her natural father and guardian.
[4] On or about 17 July 2010 and at Mankayane the defendant induced and procured Nonjabulo Fakudze, a minor child who was under the control of the plaintiff to leave the plaintiff’s control and thereby abducted the said minor child.
As a consequence of the abduction, Nonjabulo dropped out of school.
Based on the above allegations, the plaintiff asserted that he suffered damages to the sum of E28,000.00 (twenty-eight thousand Emalangeni only) constituted as follows:
School expenses for the year 2010 E 9 000.00
School expenses for the year 2011 E 9 000.00
General damages occasioned by the
Disappearance of the child, stress, out of
Pocket expenses in travelling to search for
the minor E10,000.00
------------------------
Total E28,000.00
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Defendant’s Plea
[5] In response to the allegations set out in the particulars of claim, the defendant, in his plea tendered an exclusively bare denial.
Summary of Evidence
[6] It was the plaintiff’s evidence that on Friday 17 July 2010, his daughter, Nonjabulo went to school and did not return home. The plaintiff reported the matter to the police and on the next day a search for Nonjabulo ensued without success. Nonjabulo returned home on Sunday and informed the police she was at the defendant’s home.
[7] The plaintiff informed the Court that he laid a charge of abduction against the defendant; that the abduction charge was prosecuted and the defendant pleaded guilty and was fined by the Court. Notably, other than the plaintiff’s say so, no other evidence-either by way of the charge sheet, judgment or confirmatory evidence by a department of the criminal justice system was led before the Court to buttress the plaintiff’s evidence.
[8] The plaintiff stated further that no sooner had Nonjabulo returned to school than she dropped out. In the plaintiff’s view, the abduction, coupled with psychological trauma suffered as a result of teachers and students poking fun at her consequent to the abduction resulted in Nonjabulo dropping out of school. Surprisingly and rather significantly, no evidence of an expert, say in psychology and persons knowledgeable in issues of trauma was given in this respect. It is on this basis that I exclude the reference to psychological trauma by the plaintiff which has not been shown to the satisfaction of the court to have existed nor to be casually related to the abduction. I disregard, for the same reason the plaintiff’s suggestion that his daughter’s dropping out of school is a result of the alleged abduction by the defendant. Put differently, it is my considered view that the plaintiff has failed to show that Nonjabulo’s dropping out of school is traceable to the alleged abduction by the defendant. It is my considered view further that in the absence of the requisite evidence no reasonable fact finder could find that the alleged psychological harm suffered by Nonjabulo is traceable to the defendant.
[9] 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 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 find for the plaintiff.
[10] In deciding whether absolution should be granted at the close of the plaintiff’s case, it must be assumed that absent special considerations relating to the evidence adduced by the plaintiff, the evidence is true. This implies that the plaintiff has to make out a prima facie case in the sense that he has put before Court evidence relating to all the elements of the claim-to survive absolution because without such evidence no court could find for the plaintiff. The plaintiff’s particulars of claim show that he is claiming E9,000,00 for school fees paid for the year 2011 and yet there is neither prima facie evidence nor a tittle of evidence that the plaintiff had paid the school fees for the year 2011. The plaintiff only referred to the school fees of the year 2010 but the evidence is not supported with receipts and is contradictory as to be unbelievable. In this particulars of claim the plaintiff says he paid E9,000,00 for school fees for the year 2010. Under cross examination, the plaintiff says he paid E5,000 for school fees and around E3,000 for the school uniform in the year 2010.
[11] The plaintiff was unable to provide receipts to support his evidence that he paid the school fees for the year 2010 and the year 2011. It was the plaintiff’s evidence that with the lapse of time-seven years since the alleged abduction took place-he had lost the receipts. There is, however the small matter of his summons having been issued in November 2010; the plaintiff does not say why he was unable to attach the receipts for the school fees four months after the alleged abduction happened. The fact that the plaintiff could not produce the receipts when he instituted action against the defendant in November 2010 is problematic because as dominus litis, the plaintiff should have realized the importance of the receipts.
[12] There is also the issue of the age of the plaintiff’s daughter. The plaintiff says Nonjabulo was born in June 1992 while the defendant intimates that he was informed that Nonjabulo was born in 1990. The plaintiff did not file his daughter’s birth certificate and stated that the birth certificate got lost. There seems to have been no effort that was made by the plaintiff to secure a copy of Nonjabulo’s birth certificate to prove the age of his daughter.
[13] Needless to point out, since the burden of proof is on the plaintiff it is for him to prove the effects of the abduction and that he is entitled to compensation only for those effects which he proved. Put differently, 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[1]. In the instant case, and for the reasons outlined above, I am unable to find that the plaintiff has made a prima facie case in support of his claim.
[14] Also, for the plaintiff to succeed with his claim for damages he has to prove that there is a causal link between the alleged conduct of the defendant (the abduction) and the damages allegedly suffered by the plaintiff and his daughter. It is trite that causation has two elements: the first being a factual issue and the second being legal causation. The factual issue requires an answer which has to be sought by applying the ‘but-for’ test. The proper inquiry in this respect is what the presiding officer, who is factually assumed to make decisions reasonably, would, on the probabilities, have done had all the relevant information been put before him[2]. The second element of causation is legal causation which requires an enquiry into whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote[3].
[15] The plaintiff testified that the defendant abducted his daughter and was subsequently charged, tried, convicted and fined. Nonjabulo says she was taken to the Court but never gave evidence concerning the abduction. The plaintiff did not call the prosecutor who handled the matter to give evidence at the trial nor was any documentary evidence (of the charge sheet or judgment from the trial court) filed to support the plaintiff’s evidence. There was accordingly no evidence placed before the court to gainsay the evidence of the plaintiff as to the charge, trial and conviction of the defendant for abduction.
The Test for Absolution
[16] The test for absolution was set out in a definitive manner by Harms JA in the case of Gordon Lloyd Page and Associates v Riviera and Another[4] in the following terms:
‘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 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, nor ought to)
find for the plaintiff[5]’.
[17] The import of the above quote is that in order to survive absolution, the plaintiff has to make a prima facie case in the sense that there is evidence relating to all the elements of the claim without which no court could find for the plaintiff[6].
Prima facie evidence is defined as evidence requiring an answer or evidence that will be conclusive if the opponent does not adduce an answer in rebuttal.
[18] Thus it is clear from the aforesaid that:
a) In the absence of Nonjabulo’s birth certificate and where there is a dispute of the date of birth of Nonjabulo, there is no prima facie case that plaintiff’s daughter was a minor at the time of the alleged abduction. When abduction is alleged, the plaintiff ought to have proved that his daughter was below the age of eighteen years and therefore a minor under his control. In the absence of cogent evidence why the plaintiff’s birth certificate was not filed in the year 2010 when the action was instituted or when the matter was heard in November 2017 the court is unable to ascertain the age of the plaintiff’s daughter at the time of the alleged abduction. The court cannot with certainty hold that the plaintiff’s daughter was a child below the age of eighteen years when the alleged abduction happened.
[19] Abduction is a criminal offence, but it is a matter for which civil proceedings may be instituted if the two essential elements of an action arising ex delicito are present. A wrongful act must be alleged, that is the taking of the child from its parent or guardian. Particulars of damage must be given. In the ordinary way a parent from whom a child has been abducted is wronged, for he has an antecedent right in rem to the control and society of his family and therefore be specially alleged and proved. In general, the damages recoverable, will be either per quod servitium admist, or for out of pocket expenses as a result of the injury. In civil proceedings for abduction there can be no compensation for mental anguish[7].
[20] In the particulars of claim, the plaintiff claims compensation for stress resultant from the disappearance of his daughter. Such a claim, is in my view is misplaced because in civil proceedings for abduction there can be no compensation for mental anguish.
b) In the absence of proof that the plaintiff paid the school fees for the year 2011and the year 2010, he has failed to make a prima facie case against the defendant for the damages claimed.
[21] In order to survive absolution from the instance a prima facie case must be made by the plaintiff in the sense that there is evidence relating to all the elements of the claim because without such evidence no court could find for the plaintiff[8]. In the case at hand and for the reasons outlined above, the plaintiff has failed to make out a prima facie case.
[22] In the case of Build-A-Brick Bk en’ Ander v Eskom[9], Hatting J says that the test to be applied in determining the question whether the defendant’s application for absolution from the instance should be granted is not whether the adduced evidence required an answer, but whether such evidence held the possibility of finding for the plaintiff. In the case at hand and for the reasons I have stated above, I am of the view that the evidence tendered by the plaintiff does not hold the possibility for finding for the plaintiff.
Damages
[23] The aim of an award for damages is to restore a plaintiff to the same position as if a delict committed against him by the defendant had not been committed[10].
It is also well established that a plaintiff claiming damages must prove both the fact of the damage and its amount[11]. Consequently a plaintiff cannot make a claim for damages without placing before the court sufficient evidence of the loss he has suffered, even if he is otherwise entitled in principle to recover damages. A court called upon to assess a claim for damages must carefully balance two competing principles. On the one hand, the burden of proving the fact and amount of loss falls squarely on the plaintiff, who must give the court sufficient evidence with which it may quantify the damage. The court expects the plaintiff to do his best to prove his loss and to provide cogent evidence thereof.
[24] In the present case, the plaintiff claims a total of E28,000 (twenty-eight thousand Emalangeni) for school fees for the years 2010 and 2011 and general damages occasioned by the disappearance of the child, stress as well as out of pocket expenses. In his evidence in chief, the plaintiff stated that he had paid school fees for the full year not two full years. It is unclear why the plaintiff, in his particulars of claim wants damages for school fees paid for the years 2010 and 2011 and how he arrives at the quantum of such damages. The plaintiff stated before court that he wanted compensation for psychological trauma of both his daughter and himself. It is the evidence of the plaintiff that he paid about E3,000.00 for the school uniform; E5,000.00 for school fees; and that he wants E5,000.00 for psychological trauma of his daughter. Needless to say, the plaintiff’s evidence in chief and under cross examination contradicts that which is contained in his particulars of claim in this regard.
As earlier pointed out, in an action based on abduction, there can be no compensation for mental anguish.
For the reasons outlined above, absolution from the instance is granted.
Order
[25] In the light of the above, the following order is made:
- Absolution from the instance is granted
- Costs to follow the result.
____________________________
M. LANGWENYA
JUDGE OF THE HIGH COURT
For the Applicant : Mr. I. Du Pont
For the Respondent : Mr. O. Nzima.
[1] Marine and Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A.
[2] Minister of Safety and Security & Another v Camichele 2004 (3) SA 305 (SCA) para 61.
[3] Inernational Shipping Company Pty Ltd v Bentley 1990 (1) SA 680 (A) at 7001.
[5] See: Cluade Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G; Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)
[6] Marine and Trade Insurance Co. Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A.
[7] Isaacs, I Beck’s Theory and Principles of Pleading in Civil Actions, Butterworths Publishers, 1982, Appendix V, paragraph 89.
[8] Marine & Trade Insurance Co. Ltd v Van der Schyft 1972 (1) SA 26 (A) at 37 G-38 A.
[9] 1996 (1) SA 115 (O) at 123 A-E.
[10] Livingstone v The Rawyards Coal Company (1880) 5 App Case 25 at 39.
[11] McGregor QC of McGregor on Damages (Sweet & Maxwell, 17th ed, 2003).
