The
plaintiff has applied for leave to re-open the case to adduce further
evidence after the close of the defendant's case.
This
kind of application is rare in practice.
This
interlocutory application should, however, be understood in the
context of the peculiar facts of this case. The gravamen of this
application is the following:
When
the plaintiff was presenting his case, he indicated that he wanted to
call a witness in the employ of the Human Resources Department of the
defendant, one Ndlovu. Mr Ndlovu is the Personnel Manager at the
defendant. Counsel for the plaintiff stated; “My Lord the plaintiff
has proposed and had subpoenaed the Personnel Manager of the National
Railways of Zimbabwe, Mr Ndlovu, but we were advised yesterday that
he would not be available until about the 23rd
of January….,.”
In
response, counsel for the defendant had this to say; “My Lord, in
relation to the witness, that was the first time matter that was
said. I had not been made to be aware that my learned friend (was)
seeking the presence of that witness…,. In my respectful
observation, my Lord, it's not the proper thing to do. We
also advised my learned friend that the very witness that he intends
to call is our witness, witness from the NRZ to come and deal with
those issues that was (sic) raised during cross-examination. I submit
my Lord that it is not proper for my learned friend to seek to call a
witness who we wanted to call and, who will certainly be conflicted
in terms of his testimony.”…,.
In
response, counsel for the plaintiff; “…, I did look at the
synopsis of evidence, there was, I must point out, no indication that
the witness we proposed to call would actually be called by the
defendant. And so I am not aware of a rule that gives one party
monopoly of witnesses over the other. If he is a dispassionate
witness of the truth, as he should, then he must be available to be
called even by the plaintiff. The
reason why this witness is sought, part of the plaintiff's claim
relates to prospective damages, what he has lost or what he stands to
lose. So it requires someone with information as to what the
plaintiff's…, what his colleagues are actually being paid so that
they can observe as to what he would have been paid had his
employment continued and so he becomes a necessary, a material
witness in this regard.”…,.
The
matter was postponed before this issue was resolved. On resumption,
counsel for the plaintiff addressed the court in the following terms:
“My
Lord, last year the plaintiff indicated that he was desirous of
calling Mr G. Ndlovu, the Human Resources Manager of the defendant,
and counsel for the defendant indicated that they would be calling
the same witness and the parties have exchanged correspondence on the
issue of that particular witness and the defendant has confirmed that
Mr Ndlovu remains their witness and is not available to be called as
a witness for the plaintiff. On the understanding that the defendant
will be calling Mr Ndlovu, the plaintiff has no other witness to call
and will be closing his case. If, on the other hand, there has been a
change and the defendant no longer wises to call Mr Ndlovu then the
plaintiff wishes to call Mr Ndlovu, so, perhaps, at this juncture,
before formally closing, counsel for the defendant would shed light
on how they propose to deal on whether they will be calling Mr Ndlovu
or not.”
In
response, counsel for the defendant had this to say:
“It
is correct, my Lord, that the parties exchanged correspondences in
relation to Mr G. Ndlovu, or any other person in his department, as a
potential witness. What, however, we made clear to my learned friend
was that Mr G. Ndlovu was a witness for the defendant and he was
going to be called as a witness by the defendant to rebut whatever
evidence the plaintiff will be led against the defendant. So what was
clearly made known to the plaintiff was that we were only going to
call Mr Ndlovu to rebut the evidence that he would have been led
against defendant. We also made it clear to the plaintiff that it was
entirely up to him to prove his case against the defendant, to bring
to court whatever evidence he feels to prove his case, not to depend
on the defendant to prove his case against it's (case). So, my
Lord, what I am saying here is the defendant was going to call Mr
Ndlovu only if the plaintiff has led evidence against the defendant.
What they indicated is that they were totally against the calling of
Mr G. Ndlovu by plaintiff in order to be used to prove the case
against defendant.
But,
my Lord, what must be clear from the record is that the plaintiff has
actually closed his case. So whether or not the defendant is going to
call G. Ndlovu or not is now of no consequence because the plaintiff
has clearly indicated that he is now closing his case. That should be
the end of the matter. So, again, even if the defendant has called G.
Ndlovu or not, for now, it is of no consequence because the plaintiff
has closed his case.”
Counsel
for the plaintiff
then said:-
“Yes,
it is degenerating, I think, into a game of wits which a trial should
not be. The plaintiff closes his case with a rider that the defendant
should know that if the defendant (does) not call Mr G. Ndlovu they
can be certain an application is going to be led to re-open the
plaintiff's case to lead Mr Ndlovu's evidence. That evidence had
not been led on the understanding that Mr Ndlovu is a witness for the
defendant but should the defendant then not call him and close his
case, then plaintiff reserved the right to re-open its case and still
call Mr Ndlovu.”
The
defendant closed its case without calling Mr G. Ndlovu to testify.
In
the circumstances, the plaintiff has applied to re-open his case and
call him. The defendant strongly opposes the application to reopen
the plaintiff's case for the aforesaid purpose.
In
terms of Order 19 Rule 437(5) of the High Court Rules, 1971 either
party may, with the leave of the court, adduce further evidence at
any time before judgment, but such leave shall not be granted if it
appears to the court that such evidence was intentionally withheld
out of its proper order.
It
is trite law that the discretion to permit the adduction of further
evidence must be exercised judicially upon consideration of all
relevant factors, and, in essence, it is a matter of fairness to both
sides. Key factors for consideration are:
(1)
Explanation for the failure to lead the available evidence timeously;
(2)
The danger of prejudice to the other party; and
(3)
Sufficient materiality of the evidence.
Mkwananzi
v Van der Merwe & Anor 1970 (1) SA 609 (A)…,; Coetzee v Jansen
1954 (3) SA 173; and Blose v Ethekwini Municipality (20053/14) [2015]
ZASCA 87.
In
the current matter, the explanation for the non-timeous calling of
the witness is justifiable as evinced by the submissions made by
counsel for the plaintiff above before the plaintiff closed his case.
As alluded to above, the plaintiff put a rider that should the
defendant decide not to call Mr Ndlovu, he will apply to re-open his
case for the purposes of adducing evidence from him. As shown above,
the defendant strenuously opposed the calling of Mr Ndlovu by the
plaintiff saying the said was its witness. In the circumstances, the
plaintiff did not intentionally withhold the evidence of the said
witness. The plaintiff tried, in vain, to adduce the testimony of Mr
Ndlovu timeously but fails because of the opposition by the
defendant.
On
the question of prejudice, I do not think the defendant will suffer
any prejudice. This witness was its witness whom it deliberately
abandoned. In any event, the defendant will be afforded the
opportunity to cross-examine the witness if it so wishes.
Finally,
there is sufficient materiality of the evidence of the witness. It is
on account of such materiality that the defendant initially jealously
protected him as its witness. If the evidence of the witness is not
material the defendant would not have vehemently opposed attempts by
the plaintiff to call him.
In
the circumstances, I grant leave to the plaintiff to re-open his case
and adduce the evidence of Mr G. Ndlovu.
