[60] The relevant test 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 or ought to) find for the plaintiff. [61] Consequently reasoning at this is to be distinguished from the reasoning which the court applies at the end of the [62] In Dannecker v Leopard Car & Camping Hire CC Damaseb JP articulated the considerations relevant to absolution at closing of the plaintiff’s case as follows: The following considerations are in my view relevant and find application in the ‘ case before me: Absolution at the end of plaintiff’s case ought only to be granted in a very clear case where the plaintiff has not made out any case at all, in fact and law; The plaintiff is not to be lightly shut out where the defence relied on by the defendant is peculiarly within the latter’s knowledge while the plaintiff has made out a case calling for an answer (or rebuttal) on oath; The trier of fact should be on the guard for a defendant who attempts to invoke the absolution procedure to avoid coming into the witness box to answer uncomfortable facts having a bearing on both credibility and the weight of probabilities in the case; the plaintiff’s evidence gives rise to more than one plausible inference, anyone of which is in his or her favour in the sense of supporting his or her cause of action and destructive of the version of the defence, absolution is an inappropriate remedy; Perhaps most importantly, in adjudicating an application of absolution at the end of plaintiff’s case, the of fact is bound to accept as true the evidence led by and on behalf of the plaintiff, unless the plaintiff’s evidence is incurably and inherently so improbable and unsatisfactory as to be rejected out of hand.’ [63] The test which the court applies for such applications has been authoritatively stated in various judgments and adopted by this court and our Supreme Court. The leading case normally referred to in this regard is Claude Neon Lights (SA) Ltd v Daniel where Miller AJA propound the applicable test in the following terms —
[60] The relevant test 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 or ought to) find for the plaintiff. [61] Consequently reasoning at this is to be distinguished from the reasoning which the court applies at the end of the [62] In Dannecker v Leopard Car & Camping Hire CC Damaseb JP articulated the considerations relevant to absolution at closing of the plaintiff’s case as follows: ‘ The following considerations are in my view relevant and find application in the case before me: Absolution at the end of plaintiff’s case ought only to be granted in a very clear case where the plaintiff has not made out any case at all, in fact and law; The plaintiff is not to be lightly shut out where the defence relied on by the defendant is peculiarly within the latter’s knowledge while the plaintiff has made out a case calling for an answer (or rebuttal) on oath; The trier of fact should be on the guard for a defendant who attempts to invoke the absolution procedure to avoid coming into the witness box to answer uncomfortable facts having a bearing on both credibility and the weight of probabilities in the case; the plaintiff’s evidence gives rise to more than one plausible inference, anyone of which is in his or her favour in the sense of supporting his or her cause of action and destructive of the version of the defence, absolution is an inappropriate remedy; Perhaps most importantly, in adjudicating an application of absolution at the end of plaintiff’s case, the of fact is bound to accept as true the evidence led by and on behalf of the plaintiff, unless the plaintiff’s evidence is incurably and inherently so improbable and unsatisfactory as to be rejected out of hand.’ [63] The test which the court applies for such applications has been authoritatively stated in various judgments and adopted by this court and our Supreme Court. The leading case normally referred to in this regard is Claude Neon Lights (SA) Ltd v Daniel where Miller AJA propound the applicable test in the following terms —
E%20and%20L%20Mvula%20Development%20Properties%20v%20%20Pacific%20Motors%20(I%202839-2013)%20[2017]%20NAHCMD%20248%20(17%20July%202017).docx