The
applicant in this matter (Case No. SC402/13) filed an application to
adduce further evidence on appeal in the main matter (Case No.
SC88/12). Both matters were set down to be heard together on 19 March
2015. After hearing counsel, the application to adduce further
evidence was dismissed with costs.
Thereafter,
counsel for the applicant sought a postponement of the main matter in
order to consider the applicant's Constitutional rights, in
particular, the right to a fair hearing, in relation to the dismissal
of the application.
Following
further submissions, it was ordered, by consent, that the appeal in
the main matter be postponed on condition that the applicant be given
until 25 March 2015 to file such Constitutional matter as it
considers to have arisen from the refusal of the application to
adduce further evidence on appeal. In the event that the applicant
failed to comply with this condition, the Registrar was directed to
reset the appeal down for hearing.
The
applicant was ordered to pay the costs occasioned by the postponement
of the appeal.
On
25 March 2015, the applicant duly filed an appeal to the
Constitutional Court (in Case No. CCZ21/15) against the judgment of
this Court handed down on 19 March 2015. In that appeal, the
applicant seeks the reversal of the decision of this Court and a
substituted order granting the application to adduce further evidence
on appeal.
Following
the noting of the Constitutional appeal, the respondent's legal
practitioner has sought written reasons for the dismissal of the
application. Those reasons are as follows:
Factual
Background
On
29 November 2004, the respondent (plaintiff in the court a
quo)
concluded two separate agreements with the applicant (defendant in
the court a
quo).
The first was for the sale of plant equipment and goodwill at the
price of US$219,000=. The second was for the sale of three immovable
properties at the price of US$296,000=, US$97,000= and US$88,000=
respectively. A portion of the purchase price was to be paid in
Zimbabwe Dollars converted from United States Dollars at the
so-called auction rate.
On
7 November 2006, the respondent, through its lawyers, addressed a
letter by registered mail cancelling the agreement for the sale of
the three immovable properties. It then issued summons seeking an
order for rei
vindicatio
and the eviction of the applicant from the properties. The
applicant's defence was that the properties were not occupied by
the applicant company as such but by the current shareholders and
directors of the respondent company, and that, in any event, the
respondent had been fully paid for the properties.
Following
the trial of the matter, the court a
quo
found that the applicant had not paid for the assets in full within
the agreed time frames. The court also found that the shareholding
and directorship in the respondent company had not been validly
transferred to the applicant company or its representatives.
Moreover, the respondent's notice of intention to cancel the
agreement of sale was not invalid and the agreement had been properly
cancelled by the respondent. The court accordingly held that the
respondent was entitled to vindicate all three properties, including
the two properties that the applicant had sold to third parties after
the matter had been referred to trial. In the event, the eviction
order was granted and the applicant and its lawyer were ordered to
pay costs on a legal practitioner and client scale.
The
applicant subsequently appealed against the judgment of the High
Court, citing a multiplicity of grounds of appeal. It later filed the
present application to adduce further evidence on appeal, which
application, as I have already indicated, was dismissed with costs by
this Court.
The
Application
The
application to adduce further evidence on appeal pertains to evidence
given in the Regional Magistrates Court in criminal proceedings
against Mr. Musukuma (the Managing Director of the applicant) on a
charge of fraud. In particular, it consists of the affidavit evidence
of Mr. Vieira (a Director of the respondent) and Mr. Paul Paul (the
respondent's lawyer) together with the entire record of proceedings
in the criminal matter.
The
deponent to the founding affidavit (Mr. Musukuma) averred that this
record of proceedings was not available at the time of the civil
trial before the High Court. He further averred that this evidence is
relevant to the control of the respondent company. It is also
relevant to the agreed purchase price for the three properties sold
by the respondent to the applicant, the currency of purchase, the
sufficiency of the amount tendered by the applicant, and other issues
relating to the agreement of sale. The applicant sought an order
allowing the application and incorporating the Magistrates Court
record of proceedings in the main matter (Case No. SC88/12).
The
respondent opposed the application on the basis that the evidence of
Mr. Vieira, before the Magistrates Court, shows no material
difference with his evidence in the High Court. The dispute between
the parties, according to the respondent, is not about what payments
were made or in what currency they were made. It is about what value
to assign to the Zimbabwe Dollar payments made and tendered by the
applicant vis-à-vis the agreed United States Dollar figures. The
respondent averred that the application was merely designed to delay
the finalisation of the appeal, and should, therefore, be dismissed
with costs on a higher scale….,.
Argument
on the Merits
Counsel
for the applicant argued as follows in support of the application. At
the time of the trial in the High Court, Mr. Vieira had already
testified before the Magistrates Court. Although his evidence in the
criminal proceedings was known, it was not available in record form
at the civil trial stage. Again, there was nothing to suggest that
the affidavits of Messrs Paul and Vieira, before the Magistrates
Court, were available to be produced before the High Court. The
Magistrates Court record of proceedings was now available. It shows
that both Messrs Paul and Vieira had accepted the agreed purchase
price in Zimbabwe Dollars and that payment of the balance outstanding
in Zimbabwe Dollars would suffice. In the High Court, however, the
respondent took the position that the applicant's tender in
Zimbabwe Dollars was not acceptable. If such tender were to be
accepted as valid, the decision of the High Court on the propriety of
the cancellation of the agreement of sale would be wrong. In the main
appeal, therefore, this Court should have regard to the record of
proceedings in both the Magistrates Court and the High Court and, if
necessary, the relevant witnesses could be required to testify again
on remittal to the High Court.
Counsel
for the respondent countered as follows:
The
State case in the criminal proceedings was closed on 25 January 2011.
Both Messrs Vieira and Paul had testified by that date. The criminal
trial ended in May 2011. The applicant's defence in the High Court
case was concluded in June 2011. Thus, a period of five months had
elapsed between the closure of the State case in the criminal matter
and the conclusion of the defence case in the civil trial. The
applicant could have sought an adjournment of the trial or applied to
adduce further evidence in the High Court before the trial was
completed. Alternatively, it could have applied to re-open its case
in the High Court before judgment was delivered on 14 March 2012. The
applicant did not exercise any of these options. In any event, the
affidavits of Messrs Vieira and Paul were respectively sworn and
signed on 5 June 2009 and 18 August 2009. Both affidavits were used
in the criminal trial before the Magistrates Court and were available
long before the civil trial in the High Court. Finally, the present
application was filed on 21 October 2013, more than nine months after
the main appeal was lodged. In short, there was a flagrant lack of
diligence on the part of the applicant.
Principles
Governing the Adduction of Further Evidence
In
England, the test for adducing further evidence or ordering a fresh
trial was lucidly enunciated by DENNING LJ in Ladd
v Marshall
[1954] 3 All ER 745 (CA)…,:
“In
order to justify the reception of fresh evidence or a new trial,
three conditions must be fulfilled:
(i)
Firstly, it must be shown that the evidence could not have been
obtained with reasonable diligence for use at the trial;
(ii)
Second, the evidence must be such that, if given, it would probably
have an influence on the outcome of the case, although it need not be
decisive;
(iii)
Third, the evidence must be such as is presumably to be believed, or
in other words, it must be apparently credible although it need not
be incontrovertible.”
This
test has been followed by our courts, with marginal amplification, in
Farmers'
Co-op Ltd v Borden Syndicate (Pvt) Ltd
1961 R & N 28 (FS)…, and in Leopard
Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd
1994 (1) ZLR 255 (SC)…,.
In
South Africa, the requirements for the adduction of further evidence
on appeal are essentially the same, albeit differently phrased. They
were set out by HOLMES JA in S
v de Jager
1965 (2) SA 612 (A)…,.:
“(a)
There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is sought to
lead
was not led at the trial.
(b)
There should be a prima
facie
likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the
trial.”
These
requirements have been applied by this Court in several cases over
the years. See S
v Mutters & Anor
1987 (1) ZLR 202 (S)…,.; S
v Osborne
1989 (3) ZLR 326 (S)…,.; S
v Kuiper
2000 (1) ZLR 113 (SC)…,.; Petho
v Minister of Home Affairs, Zimbabwe, & Anor
2003 (3) SA 131 (ZS).
Drawing
from the above-cited authorities, I venture to paraphrase the
governing principles as follows;
(i)
The evidence to be adduced must have been un-obtainable with due
diligence or unavailable for adduction at the trial stage;
(ii)
It should be probably influential or materially relevant to the
outcome of the trial; and
(iii)
It must be apparently credible or prima
facie
likely to be true.
Disposition
Insofar
as concerns the affidavits of Messrs Vieira and Paul, they were,
respectively, sworn and signed in June and August 2009. Both
affidavits were undoubtedly available long before the inception of
the civil trial in the High Court.
Turning
to the criminal proceedings in the Magistrates Court, the State case
was closed in January 2011 and both Messrs Vieira and Paul had
testified by that date. The criminal trial ended in May 2011 and the
applicant concluded its defence in the High Court case in June 2011.
In the intervening period of five months, i.e.
between the closure of the State case in the criminal matter and the
conclusion of the defence case in the civil trial, the applicant was
at large either to seek an adjournment of the civil trial or to apply
to adduce further evidence in the High Court before the trial was
completed. There appears to be no plausible reason in the
circumstances of this matter, and no such reason has been proffered
by the applicant, why neither of these options was exercised.
Even
at the end of the civil trial, during the period when judgment in the
matter was reserved, the applicant could quite conceivably have
applied to re-open its case in the High Court.
In
short, the evidence sought to be adduced in the main appeal was
available and adducible from the time it was produced to just before
the High Court delivered its decision in March 2012.
In
the premises, the applicant has failed to demonstrate that it
exercised due diligence in obtaining and availing the affidavit
evidence and record of criminal proceedings that it now, very
belatedly, seeks to adduce. Consequently, it has dismally failed to
cross the very first hurdle in meeting the established tests for the
adduction of further evidence on appeal.
For
the foregoing
reasons, the application to adduce further evidence in this matter
was dismissed with costs.
