UCHENA
J: The applicant is the Church
Of The Province Of Central Africa and
is responsible for the affairs of the Anglican Church in Central
Africa. The first respondent is its Bishop for Manicaland with
whom it has pending cases before the courts for the determination of whether or
not he is still its Bishop. The first respondent leads a faction of the
Anglican Church in Manicaland. The second respondent is an Estate Agent
operating in Mutare. It was in August 2009, given a mandate by the first
respondent's faction to sale two pieces of land belonging to the Anglican
church. The third respondent is the Registrar of Deeds and was cited in his
official capacity as the official responsible for the registration of transfer
of title over land in Zimbabwe.
The
applicant filed this urgent application on the following facts. On 18 March 2010 the
applicant's Registrar who is the deponent of its founding affidavit received a
call from a member of the public who inquired from him, “whether the purchase
price of stands number 91 and 92
Second Street Mutare were negotiable”. These are
church assets over which the two factions of the Anglican church in Manicaland,
have a pending case before the courts. The applicant and first respondent, had
on 12 October 2009, agreed to a consent order being made under case numbers HC
4700/09 and HC 4804/09 regulating the control of church assets including these
stands. The first respondent's faction had in August 2009 given the second
respondent a mandate to sale stands 91and 92.
Alarmed
by the inquiry the applicant filed this urgent application seeking a
provisional order interdicting the respondents from selling or in any way
effecting transfer of the church's assets. It had obtaining a copy of the
mandate from the second respondent. The first respondent does not deny giving
the second respondent the mandate to sale the stands, but says it suspended the
mandate when it agreed to the consent order of 12 October 2009.
The
first and second respondents opposed the application and raised the following
preliminary issues:
1.
that the application is not urgent;
2.
that the matter is res
judicata; and
3.
that the applicant and the first respondent do not have
locus standii to sue and be sued in this case.
URGENCY
Mr
Chikumbirike for the first and second
respondents submitted that the application is not urgent because the mandate
was given in August 2009 and nothing happened until 18 March 2010.
He further submitted that the mandate was overtaken by the consent order
of 12 October 2009.
He further submitted that the urgency is premised on hearsay evidence. He
argued that if the hearsay evidence is excluded then there is no urgency at all
as the cause of action arose in August 2009.
Mr
Zhou for the applicant submitted that
the case is urgent as the stands are being sold as demonstrated by the inquiry
of 18 March 2010.
He further submitted that the case is urgent as the respondents did not say
that the mandate had been suspended after the parties agreed on the consent
order of 12 October 2009.
He later withdrew the later when Mr Chikumbirike
referred to a paragraph in the first respondent's opposing affidavit in which he,
specifically said the mandate had been suspended. The application's urgency
therefore depends on the admissibility of the inquiry of 18 March 2010. Mr Zhou submitted that
the evidence of inquiry is not inadmissible hearsay, as first hand hearsay is
admissible in terms of s 27 of the Civil Evidence Act [Cap 8:01]. He further submitted that hearsay evidence is admissible
in urgent interlocutory applications.
Mr Chikumbirike
in response submitted that s 27 of the Civil Evidence Act deals with viva voce
evidence and is therefore not applicable to cases were the hearsay evidence is
tendered in application proceedings. He insisted that the applicant should have
filled a supporting affidavit from the inquirer. On the issue of hearsay
evidence being admissible in urgent cases, he submitted that the applicant
filed this application on 26
March 2010, a week, after the date of inquiry therefore it had ample
time, within which it could have obtained a supporting affidavit from the
inquirer.
I agree with Mr Chikumbirike
that s 27 (1) of the Civil Evidence Act does not apply to first hand hearsay
evidence in application proceedings. Section 27 provides as follows.
“(1) Subject to this
section evidence of a statement made by any person, whether orally or in
writing or otherwise, shall be admissible in civil proceedings as evidence of
any fact mentioned or disclosed in the statement, if direct oral evidence by
that person of that fact would be admissible in those proceedings”
The use of the words “if direct
oral evidence by that person of that fact would be admissible in those
proceedings”, suggests that s 27 (1) applies to first hand hearsay evidence in action
proceedings.
The evidence of the caller's inquiry, is therefore not admissible under s
27 (1) of the Civil Evidence Act.
I
must now consider the admissibility of the caller's inquiry on the basis of
urgency. Advocate Zhou's submission that hearsay evidence is admissible in
urgent cases is a correct statement of our law of evidence. It is made admissible by the provisions of
section 56 of the Civil Evidence Act which provides as follows:
“Where an issue
as to the admissibility of any evidence or the
competence or compellability of any witness arises which is not provided
for in this Act, the issue shall be determined according to the law applicable
in similar cases before the Supreme Court of Judicature in England:”
.
According to our case law, such evidence is
admissible under rules which allows for its
admission in interlocutory proceedings. See the case of Johnstone v Wildlife Utilisation Services (Pvt)
Ltd 1966 (4) SA 685 ® @ 686 where BEADLE
CJ commenting on the admissibility of hearsay evidence in urgent
applications said:
“It is accepted
in our practice that the rules of admission of hearsay evidence applicable to
interlocutory proceedings are not the same as those that apply to trial
actions. Such evidence given in affidavit form in such applications is not
necessarily excluded because it is hearsay, provided the source of the
information is disclosed. As I understand our practice it is this: First the
Court must examine the evidence given in this form and ascertain whether the
prejudice which might result to the opposite party, if the evidence is later
shown to be incorrect, would be irremediable. Second the Court must examine the
passages to see whether there is some justification, such as urgency, for the
evidence being placed before it in hearsay, and not in direct, form. In any
event, the Court will always attach less weight to evidence which is placed
before it in hearsay form than to that which is placed before it in direct
form. But the weight to be attached to it does not necessarily affect its
admissibility, provided it is relevant.”
In this case the source of the statement
is not properly disclosed. He is merely referred to as a member of the public.
This means the evidence of the content of the caller's statement is
inadmissible hearsay. Such hearsay evidence is only admissible if the source of
the information is disclosed. The result, is that this court can not admit and
rely on such evidence. Even if the caller's statement was admissible the fact
that the caller's identity was not revealed, makes it impossible for this court
to consider the aspects it should consider when it is to proceed on such
evidence.
We would in the result end up with
a situation where a call was received from someone who was inquiring about the
price of the stands. We do not know when the caller had received information
that the stands were being sold. The inference that the caller had recently
been informed of the stands being on sale is not the only reasonable inference
which can be drawn from the facts of this case. He may well have for a long
time, known of their being on sale but decided to inquire at the time he did
for reasons only known to himself. He may have received the information from
people who knew of their having been on sale. What is clear is that there is no
evidence that the caller had recently received information about the stands
being on sale. In the absence of that evidence it could still not be said that
the application is urgent. There would be no proof of an imminent sale of the
stands to justify the hearing of the application on an urgent basis. It would
still have to be heard as an ordinary application as it could not be said that
it could not wait.
In this case I agree with Mr Chikumbirike, that the time which lapsed
between the date of inquiry and the date this application was filed would have
enabled the applicant to obtain a supporting affidavit from the caller. It does
not therefore justify the placing of hearsay evidence before this court. In the
absence of that evidence there is no proof of an imminent sale of the stands.
I therefore conclude that the
application is not urgent. It should therefore await its turn to be heard in
terms of the rules applicable to none urgent applications. In view of my
finding that the application is not urgent I will not determine the other
preliminary issues as doing so would amount to hearing a none urgent
application on an urgent basis.
Mr Chikumbirike sought the dismissal of the application if the court
found in the applicant's favour on the preliminary issues he raised. The
application can not be dismissed because of its lack of urgency, as urgency
merely determines whether or not it can be heard on an urgent basis ahead of
other cases awaiting the court's attention. See the case of Commissioner, South African Revenue Service
v Hawker Aviation Partnership & Ors 2006 (4) SA 292 (SCA) @ 299F-
300A.
The application is therefore
struck off the roll.
The applicant shall pay the respondent's costs.
Gill Godlonton &
Gerrans, applicant's legal practitioners.
Chikumbirike &
Associates, first and second respondent's legal practitioners
