Home /Our Insights/Article Detail /Home /Home
| Login
- Our Team
- Our Expertise
- Our Insights
BOND CALCULATOR SUBSCRIBE
- Our Team
- Our Expertise
- Our Insights
Absolution from the instance
29 November 2018 2882
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 judgment 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 has been proven.
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 out to) find for the Plaintiff.”
If abovementioned 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 judgment. 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 judgment. Absolution from the instance conflicts with the legal principle audi alterem 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 testify as to such facts. If absolution is granted, a legal representative might have put a version before the court, which have not been tested by those legal representative’s witnesses, which is not fair to the Plaintiff.
Absolution from the instance should not be granted lightly by courts and should only be granted in circ*mstances where the plaintiff’s case is so weak that no reasonable court could find for the Plaintiff.
Tags:Law,Litigation
Share:
Talk to us
Get in touch with us to discuss how we can help you with your challenges
Get in touch
Popular Insights
Can a Creditor Sell the Home of a Debtor to Recover Outstanding Debt?
Understanding Estate Massing in Community of Property Marriages
Are You Obligated to Pay Arrear Levies When Purchasing a Sectional Title Unit? Part 1
Considering the CCMA? Here Is What You Need to Know
Related Insights
Don’t lose your title deed!
When should you register your B-BBEE transaction with the B-BBEE Commission?
Health and safety and the employer
Recent Insights
Don’t lose your title deed!
When should you register your B-BBEE transaction with the B-BBEE Commission?
Health and safety and the employer
Main Office
Somerset West
Parc du Links, 9 Niblick Way, Somerset West, 7130 |
PO Box 880, Somerset Mall, 7137 Docex 1, Somerset West |
021 840 8000 |
law@mblh.co.za |
Office Hours: 08:00 - 17:00 Monday to Thursday 08:00 - 16:00 Fridays Closed on weekends and Public Holidays |
Stellenbosch
Section 4, Block A, Stellenpark Business Park, R44, Stellenbosch, 7600 |
PO Box 880, Somerset Mall, 7137 |
021 840 8000 |
law@mblh.co.za |
Office Hours: 08:00 - 17:00 Monday to Thursday 08:00 - 16:00 Fridays Closed on weekends, Public Holidays and between 13:00 and 14:00 for lunch |
Corporate
Offices
About
History
Phatshoane Henney Group
PH Group Platinum Achiever
Transformation
- Offices
- +27 21 840 8000
- law@mblh.co.za
- Back to top