ABSOLUTION FROM THE INSTANCE

Absolution from the instance may be granted at the end of the plaintiff’s case, if the plaintiff has failed to adduce sufficient evidence upon which a reasonable court might grant judgement in favour of such plaintiff, or the plaintiff has not produced sufficient evidence to establish a prima facie case, in other words, a case of which all the elements of the claim have been proven.^[1]

The test for absolution to be applied at the end of a plaintiff’s case is set out in Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) (SCA) at 92E-93A as formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H:

“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 the plaintiff 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 (not should, nor ought to) find for the plaintiff.”

If the above-mentioned test is applied, a plaintiff must have delivered evidence relating to all elements of the claim. For example, in the case of a contractual claim, the plaintiff must have proven the existence of a valid contract, the material terms of such contract, and breach of the contract.

In reaching a conclusion whether absolution should be granted, it is not required of a court to critically look at all the evidence, as would be required of a court at the end of a trial in order to deliver judgement. The onus on the court is less stringent, as there should only be evidence on which a court could or might find for the plaintiff.

Absolution is granted sparingly, as also confirmed by the Gordon Lloyd judgement. Absolution from the instance conflicts with the legal principle audi alteram partem, which means that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. If absolution is granted, the defendant is not called at all to answer to the plaintiff’s claim, which could possibly result in an unfair result to the plaintiff. A defendant’s legal representative often put certain facts to the plaintiff’s witnesses under cross-examination, on the basis that their witnesses will come to testify as to such facts. If absolution is granted, a legal representative might have put a version before the court, which has not been tested by those legal representative’s witnesses, which is not fair to the plaintiff.

Conclusion:

Absolution from the instance should not be granted lightly by courts and should only be granted in circumstances where the plaintiff’s case is so weak that no reasonable court could find for the plaintiff.

[1] Petè et al: Civil Procedure: A Practical Guide, second edition, 2012 p 577

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