Court name
Supreme Court of Zimbabwe
Case number
SC 55 of 2006
Civil Appeal 244 of 2005

Chitengwa v Manase (44/05) (SC 55 of 2006, Civil Appeal 244 of 2005) [2007] ZWSC 55 (13 November 2007);

Law report citations
Media neutral citation
[2007] ZWSC 55
















REPORTABLE
ZLR (49)


Judgment
No. SC 55/06


Civil
Appeal No. 244/05








LEWIS
MURIDZO CHITENGWA




v





WILSON
TATENDA MANASE








SUPREME
COURT OF ZIMBABWE


HARARE,
NOVEMBER 1, 2006 & JANUARY 16, 2007








J
C Andersen SC
,
for the applicant





A
M Gijima
,
for the respondent








CHEDA JA: In
Chambers, in terms of r 39(4) of the Supreme Court Rules.








This
is an application for leave to lead further evidence on appeal.






The High Court granted an order
for summary judgment against the applicant in case number HC 6289/02
ordering that he should vacate
the premises that the respondent
purchased, or be evicted.





The
applicant has noted an appeal against that judgment.





In
his application for leave to lead further evidence on appeal the
applicant says he will argue that the price at which the house
was
purchased was too low, and he has since got evidence which will show
that his house was valued by the Central African Building
Society at
$35 000 000,00.





Applications
for leave to lead further evidence on appeal are governed by r 39(4)
of the Supreme Court Rules (“the Rules”).





Rule
39(4) reads as follows:





“An
application to lead further evidence on appeal shall be accompanied
by that evidence in the form of an affidavit, and also by an
affidavit, or a statement from a legal practitioner, showing why the
evidence was not led at the trial, as also a copy of the judgment
appealed from and a statement indicating in what manner it is alleged
the evidence sought to be adduced affects the matters at issue.”








In
this case the evidence that applicant seeks to lead is not there.
There is no affidavit from the legal practitioner. All
there is, is
an affidavit from the applicant in which he alleges that he
discovered that the Central African Building Society valued
the house
at $35 000 000,00 when they issued a mortgage bond to the respondent.
He claims that when the matter was heard at the
High Court he was
away out of the country and was not able to lead that evidence.






The
provisions of the rule are very clear. They require that there be
an affidavit from the legal practitioner. There is none.
Even if
one accepted the affidavit of the applicant in place of that of the
legal practitioner, the evidence is not there. There
is only the
claim of it by the applicant. When I asked for it, Mr
Andersen
who appeared for the applicant could only say that this was not
disputed by the respondent. That is not enough. The Rules require
that the evidence be filed in the form of an affidavit and not just
be alleged to be in existence.






In S
v De Jager

1965 (2) SA 612 it was stated, among other requirements, that there
should be a
prima
facie

likelihood of the truth of the evidence, and the evidence should be
materially relevant to the outcome of the trial.






Clearly the Court can only make
such an assessment of the evidence if it is placed before it and not
just alleged by the applicant.





There
is no explanation why such evidence was not obtained from Central
Africa Building Society in affidavit form. There is nothing
to show
when the valuation was done and how such value was arrived at or what
considerations were taken into account by the evaluator.





This
failure by the applicant to comply with the Rules is fatal to the
application and it cannot succeed.





In
the result the application is dismissed with costs.












Gill,
Godlonton & Gerrans
,
applicant’s legal practitioners


Manase
& Manase
,
respondent's legal practitioners