BHUNU J: The plaintiff sued the first to fifth defendants seeking vacant
possession of certain piece of immovable property known as stand number 381 Goodhope Township.
The first defendant claims
occupation of the disputed property on the basis that he inherited it from his
late father Lovemore Zhuwake.
The fifth defendant is the executor
in the estate of the late Lovemore Zhuwake whereas the second defendant is the
executrix in the estate of the late Johana Fransisca Logan, the previous owner
of the disputed property.
When sued the second defendant did
not enter an appearance to defend and was accordingly barred in terms of r 50
of the High Court Rules.
The effects of a bar flow from r 83
which provide that:
“(a) the Registrar shall not accept for filing
any pleading or other document from the party barred and
(b) the
party barred shall not be permitted to appear personally or by legal
practitioner in any subsequent proceedings in the action or suit; except for
the purpose of applying for the removal of the bar”.
During the course of the trial the
plaintiff sought to call the second defendant as a witness. Both counsel for
the first and fifth defendants have vigorously objected to the calling of this
witness on the grounds that she is already barred and as such she cannot be
heard in terms of r 83.
Counsel for the plaintiff however
countered that he is calling the second defendant as a witness and not as a
party to the proceedings.
Counsel for the first and fifth
defendants retorted that the second defendant is no ordinary party to the
proceedings. She is cited as a statutory functionary. Despite being barred she
remains a party to the proceedings by virtue of her statutory obligation to
represent the estate.
That may very well be so but I take
the robust view that the executor is in fact wearing two hats one as the
executrix in the estate of the late Johana Francisca Logan and the other as a
competent and compelabe witness in this trial. The two positions are separate
and distinct.
Whereas r 83 expressly bars a barred
party from being heard other than for the upliftment of the bar it does not
preclude a barred party from giving evidence as a witness at the instance of an
interested party.
Had the law maker intended to bar a
party who has been barred from giving evidence it would have undoubtedly
expressly said so.
As the law does not expressly bar a
barred party from giving evidence as a witness it means that the law does not
prohibit him from being called as a witness by another party in the same
proceedings.
It is trite that what is not
prohibited by law is permissible at law. For that reason I hold that it is
competent for the plaintiff to call the second defendant not withstanding that
she has been barred from being heard as a party. Being heard as party is
different from being heard as a witness for the other party.
It is accordingly ordered that the
plaintiff be and is hereby allowed to call the second defendant as a witness in
these proceedings.
Hute & Partners, the plaintiff's legal
practitioners
Mbidzo, Muchadehama
& Makoni, the
first defendant's legal practitioners
Chadyiwa
& Associates, fifth respondent's
legal practitioners
