IN THE HIGH COURT OF ESWATINI
In the matter Between: Case No.160/06
EASTER TSHABALALA Plaintiff
INYATSI CONSTRUCTION LIMITED Defendant
Neutral citation: Easter Tshabalala v Inyatsi Construction Limited (160/06)  SZHC 67(10th April, 2019)
Coram : M. Dlamini J
Heard : 5th April, 2019
Delivered : 10th April, 2019
Damages : Plea - bare denial - unacceptable in law – plaintiff fails to apply for default judgement – thereby
giving defendant opportunity to advance a defence-
Application for absolution
from the instance : Is there evidence upon which a reasonable man
might find for plaintiff?
: Plaintiff’s expert witness evidence correlates to defendant’s version - defendant cannot be called to answer
: PW 2 - a quantity surveyor - testifying on root causes of cracks - not a structural engineer -incompetent witness
: absolution from instance granted - action dismissed - plaintiff to pay costs of suit
Summary: The plaintiff demands the sum of E220 000 as compensation for damages upon his property by defendant while constructing Manzini-Mbekelweni road. The defendant denies liability on the basis that the damage on plaintiff’s house was due to poor workmanship.
 The plaintiff is an adult male of Mbekelweni area, Manzini region. The defendant is a legal persona dully incorporated and registered in terms of the company laws of the Kingdom. Its principal place of business is said to be at Bethany, Manzini region.
The Parties’ case
 The plaintiff alleges that between January 2002 and March 2003 defendant engaged in construction of the Manzini-Mbekelweni road. In the cause of the construction, his house was damaged in that it produced cracks. The value of his house was E220 000. In the result, plaintiff claims the sum of E220 000 as compensation for the damages suffered.
 In its plea, the defendant raised a point in limine on locus standi in judicio on the basis that defendant was not the owner of the said house. This point was however, not pursued. The court considered it abandoned. The defendant denied liability by stating:
“5. AD paragraph 6 & 7
Save to admit that the Defendant utilised heavy plant and machinery in the construction of the road between Manzini and Mbekelweni, the Defendant denies the remainder of the contents of these paragraphs.”
 Nothing further was stated by defendant on why it was denying liability. I must hasten to point out that the bare denial by defendant is totally unacceptable in law. Defendant ought to have stated the grounds upon its denial. To simple deny plaintiff’s allegations without the reasons for denial is tantamount in law to no denial.
 That as it is, the plaintiff opted not to raise any issue. In law plaintiff ought to have filed for a default judgement. He did not. By so doing, he gave defendant the opportunity to state the reasons why it was denying liability under trial. “Let sleeping dogs lie,” so goes the parlance. Plaintiff has now put himself under the burden of having to establish his claim by first advancing prima facie evidence.
 Is there evidence upon which a reasonable man might convict? My duty is to answer this question following the application by defendant for absolution from the instance.
 The plaintiff adduced evidence under oath. He stated that he was the resident of Mbekelweni, Manzini region. Around the year 1992 he commenced constructing the house under issue. He completed it in 1993. In the period January 2002 and March 2003, the defendant constructed a tarred road passing by his homestead. During the construction defendant rollers caused severe vibration. Fortunately, these vibration were during the day. Had they been at night, they would not have slept.
 He testified further:
“My house is five metres away from the said constructed road.”
 He further testified:
“When defendant had finished construction, we realised that the house had developed cracks.”
 He highlighted that the cracks were in the lounge, three bedrooms, passage and kitchen. A certain lady came to inspect the house at his invitation. This lady then:
“Advice that the cracks were due to the vibration at the instance of defendant construction.”
 This lady advised him to find a valuator. He took the advice as he approached Chiyanda. Chiyanda upon inspection condemned the house for human habitation on the basis that it was damaged beyond. Chiyanda recommended that defendant should compensate the plaintiff. PW1 referred the court to Chiyanda’s report and applied that it be admitted as part of his evidence. He handed a copy and stated that the original report was handed to his present attorney who unfortunately misplaced it. The court accepted the report provisionally and marked it as Ex A.
 Plaintiff also handed three photographs. He testified that all photographs depicted his house. These photographs were taken by P.M. Nzima. He applied for the court to accept them as part of his evidence. The court again accepted the photographs provisionally and marked them as Ex B1 – B3. He pointed out that having approached the defendant about the cracks on his house, defendant subsequently sent two gentlemen. The first gentleman merely looked at the house and left. The second gentleman requested plaintiff to dig by the corner of the house in order to assess its foundation. He complied.
 Having dug the trench, the gentleman used his finger to measure the depth of the foundation. He then opined that the foundation of the house was thin as it was 120mm instead of 200mm. He then entered into the bedrooms and inspected the cracks.
 The plaintiff prayed that the court order defendant to pay him the sum of E220 000 as a replacement value for his house. The plaintiff’s cross-examination was brief. He was asked if he still resided in the same house. He responded to the positive. He was asked why he was not relocated following that all houses which were within a radius of 15m from the road to be constructed were moved. He said that he did not know.
 Learned Counsel for the defendant then posed:
Mr. S.N. Maseko : “you were not moved because your house
fell about 21m away from the road?”
Mr. Tshabalala : “I am not sure of that distance as some
would measure and say it is 5m away.”
Mr. S.N. Maseko : “I am instructed that if what you say in your
particulars of claim is true, more particularly at paragraph 6 then you would have been moved.”
Mr. Tshabalala : “There is a house much close to the road than mine but it was not moved.”
 The cross-examination also revealed:
Mr. S.N. Maseko : “My instructions are that you constructed the house so poorly such that even without the road construction it would have developed cracks?”
Mr. Tshabalala : “The house was built and did not have
cracks for all those years. The road was
constructed and after sometime it developed
 The content of defendant’s expert witness report were put to the witness. It was put to him that his house was constructed without a damp construction. Mr. Tshabalala testified that a damp construction was put. It is just that it was not visible on the portion which was dug for purposes of ascertaining the depth of the foundation. Mr. S.N. Maseko pointed further that as a result of the poor workmanship his house developed moist. Mr. Tshabalala disputed this.
 On the evidence by Mr. Tshabalala that the vibration were so severe such that a person could have difficulty with sleeping, he was queried:
Mr. S.N. Maseko : “If the vibrations were so severe such as you
allege, taking into account the poor quality
of your house, the cracks would have been
evident when the construction was on going?”
 This question comes after Mr. Tshabalala pointed out that the cracks showed their ugly face after a month the road construction had been completed.
Mr. Tshabalala responded: “No inspector came to inspect the quality of my house.”
 From the aforegoing it is common cause that the plaintiff’s house developed cracks. From the line of cross-examination, there are two issues which the plaintiff must address in his evidence in order for the court to call the defendant to answer. The first is the distance of the plaintiff’s house from the periphery of the road. The second is the causes of the cracks on plaintiff’s house.
Evidence of expert witness
 Mr. M.P. Nzima on oath testified on his credentials as having done a construction technician course at Swaziland College of Technology in 1974. He then pursued a certificate on quantity survey under the City and Guilds based in London. He later joined the University of Swaziland for a diploma in Accounting and Business studies. He is a holder of Valuer’s diploma and Licentiate diploma in construction. He has worked with the Ministry of Works under the quantity department. He was elevated to the clerk position where he supervised inspectors of works for construction in the country.
 In June 2015, he did a valuation on plaintiff’s house. This was following the demise of Mr. Chiyanda who had done a valuation prior. Last year he again did an independent valuation following that the 2015 valuation was influenced by Chiyanda’s report. He noted severe cracks on plaintiff’s house. Many of the cracks which were deep were painted by last year. These cracks were visible in the kitchen, three bedrooms, the lounge and passage. He then testified:
“Mine was to make a valuation of the building.”
 He proceeded:
“Construction costs valuation and not sale valuation. The replacement value of the house was E500 000.”
 He then handed to court the said report. He also handed to court three photographs and testified that they depicted plaintiff’s house. These had been previously marked Ex B1 – B3. They were formally marked. Testifying on his report, he referred the court to page three of his photograph pages and stated:
“There is a crack which might have been caused by the vibration. It is in the bedroom which is eastern bedroom.”
Evidence on how far plaintiff’s house is from the road
 The plaintiff stated in his particulars of claim that his house was 5m away from the road. This allegation was repeated as evidence under oath by the plaintiff. PW 2, the quantity surveyor testified in regard to the distance as follows:
Mr. B.J. Simelane : “Did you measure the distance of the house
from the road?
Mr. M.P. Nzima : “The house is about 20m from the road and
the fence about 5m from the road.”
 The response by Mr. M.P. Nzima resonates with the suggestion under cross-examination on behalf of defendant, which was as follows:
Mr. S.N. Maseko : “Normally when a project of this magnitude is to be undertaken, homesteads near the
road are removed. Why were you not removed?
Mr. Tshabalala : “I do not know as we do not remove
ourselves? It is the defendant who is to
Mr. S.N. Maseko : “You are usually moved away if your house
is within the radius of 15m from the road”
Mr. Tshabalala : “I do not know that”
Mr. S.N. Maseko : “You were not moved because your house is 21m away from the road.”
Mr. Tshabalala : “I am not sure of that as same would measure 5m away.”
 From this evidence, it is clear that the evidence of plaintiff’s own witness Mr. M.P. Nzima is similar to that of defendant that his house is about 20m away from the road and for that reason he could not be moved as he could not be negatively affected by the construction of the road. For this issue, there is no justification to call the defendant to its defence or put differently the reasonable man might not find for the plaintiff.
What actually caused the cracks on the plaintiff’s road? Was it the construction?
 I have already pointed out that the evidence of Mr. Tshabalala is that the cracks were caused by the vibration of the ground as a result of the rollers during the road construction. The defendant on the other hand disputes this and alleges that the cracks were as a result of poor workmanship. The plaintiff called Mr. M.P. Nzima, an expert witness on the stand.
 Mr. P. M. Nzima was led by learned counsel for the plaintiff as follows:
Mr. B.J. Simelane : “It is said that the road construction would not have effect on the house if the material used was good.”
Mr. M.P. Nzima : “The material was according to his drawing. It is not true. It is because of the nearness of the project and vibrations. The
rollers were kept in his yard. Cracks due to
bad materials are different in that they form
consistent layer like steps. In the present
case the cracks destroyed the blocks.”
 This witness was extensively cross-examined by Counsel for defendant. On the causes of the cracks he was asked:
Mr. S.N. Maseko : “Do you confirm that from your report you
do not know the causes of the cracks?
Mr. M.P. Nzima : “I did not mention the causes because I was making a valuation report and not a
Mr. S.N. Maseko : “What is the difference between valuation
report and a structural report?
Mr. M.P. Nzima : “A structural report would say how is the
composition of the foundation, strength of the material, walls, roofs which are the main thing while a valuation mentions the size of the house, the slap finishes (composition). All that combined together would make costs of the house.”
 Turning to exhibit B, the report is clear that it is a valuation report. In fact the report is completely silent on the cracks. The only information about cracks is page three of the photograph catalogue attached to the report following that the report was signed before the photograph catalogue. Page three shows photograph number two. This photograph reflects a crack running across a wall. It is clear from the evidence of PW2, Mr. P.M. Nzima that the relevant expert who would have testified on the causes of the cracks was a structural engineer and not a licentiate valuer as PW 2. PW2 merely inspected the house not for purposes of ascertaining the root cause for the cracks but to assess costs of rebuilding the house.
 What further confounds the plaintiff’s case is the evidence revealed under cross-examination. It was as follows:
Mr. S.N. Maseko : “Do you know that besides the house in
question, there is also a rondavel which is closer to the fence?”
Mr. P. M. Nzima : “Yes”
Mr. S.N. Maseko : “Do you know that rondavel was never
reported to have developed cracks yet it
Mr. P.M. Nzima : “It was not completed when the road was constructed.”
Mr. S.N. Maseko : “Had its construction started though?”
Mr. P.M. Nzima : “It was on the slap stage.”
Mr. S.N. Maseko : “Did you observe any cracks on it?”
Mr. P.M. Nzima : “I never inspected it.”
 Clearly one would have expected that a structure closer to the road would mostly be affected if the version by plaintiff is to be believed. The answer by PW2 that he never inspected it must be interpreted to mean that he did not inspect it because there were no cracks on it. The gist of the matter is that plaintiff closed his case without adducing evidence on what caused the cracks in his house. His say so cannot be relied upon. Expert evidence was crucial, more particularly on the evidence that a structure closer to the road had no cracks. I note that PW2 attempted to testify on the causes of the cracks. However, that evidence was not supported by his report. Worse still, he was not a structural engineer to testify on the causes of the cracks. In law he is an incompetent witness in that regard.
 In the result, I find that there is no prima facie evidence serving before me which a reasonable man might find for the plaintiff. I therefore enter the following orders:
34.1 Defendant’s application for absolution from the instance succeeds;
34.2 Plaintiff’s cause of action is dismissed;
34.3 Plaintiff is ordered to pay defendant costs of suit.
M. DLAMINI J
For the Plaintiff : B.J. Simelane of Ben J. Simelane & Associates
For the Defendant : S.N. Maseko of Henwood & Company
 See page 13 paragraph 6&7 in the book of pleadings