Court name
Supreme Court of Zimbabwe
Case number
SC 59 of 2006
Civil Application 64 of 2006

Sate v Chimbari & Others (64/06) (SC 59 of 2006, Civil Application 64 of 2006) [2007] ZWSC 59 (22 January 2007);

Law report citations
Media neutral citation
[2007] ZWSC 59













REPORTABLE
ZLR (51)





Judgment
No. SC 59/06


Civil
Application No. 64/06








CHALMERS
SATE





v





(1) F
CHIMBARI (2) ANNE KASEKE (3) THE MASTER OF
THE HIGH COURT (4) CHITUNGWIZA
MUNICIPAL
COUNCIL








SUPREME
COURT OF ZIMBABWE


SANDURA JA,
MALABA JA & GWAUNZA JA


HARARE, JULY 3
2006 & JANUARY 23, 2007








T
Batasara
, for the
applicant





T
Nyawo
, for the first
and second respondents





No appearance
for the third and fourth respondents







MALABA JA: This is an
application for leave to adduce further evidence on appeal. The
appeal against the judgment of the High Court
was noted on 11 January
2006.





The facts
are these –






The applicant instituted action
in the High Court against the respondents claiming an order of
transfer of stand number 17742 Unit
M, Seke, registered in the name
of the late Simon James. The ground on which the claim was based
was that he entered into an agreement
of sale with the deceased
during his lifetime, in terms of which the said property was sold to
him for $58 900 which purchase price
he had paid in full.





The first
respondent is the executor of the deceased’s estate, whilst the
second respondent once lived with the deceased in an
unregistered
customary law union as husband and wife. The first and second
respondents opposed the claim by the applicant in the
High Court.





It was
common cause that the deceased and the second respondent lived
together in 1963 as husband and wife. They had a child together
but
later separated. It was also not disputed that in 1981 stand 17742
was allocated to Simon James. In 1994 it was transferred
into his
name under a lease-to-buy scheme established by the fourth
respondent. It was further not in dispute that Simon James
entered
into an agreement of sale with the applicant in terms of which he
agreed to sell the stand for $58 900. He died before
transfer could
be effected into the applicant’s name.





At one time
the applicant successfully had the deceased’s rights in the stand
ceded to him with the consent of the fourth respondent.
The cession
was, however, subsequently reversed by the High Court at the
instigation of the second respondent who disputed that
the deceased
had real rights in the stand to cede to the applicant.





The
applicant then instituted action in the High Court claiming transfer
of the stand into his name, alternatively the refund of
the purchase
price. The issues before the High Court were agreed by the parties
at a pre-trial conference as being –






1. Whether or not there was a
valid contract of sale between the plaintiff and the late Simon
James.


2. Did the
plaintiff pay the full purchase price in terms of the contract of
sale?


3. In the
event of the court granting the alternative claim, should the
plaintiff be refunded the actual purchase price paid or the
current
open market value of the house?





Apart from
the evidence of the agreement of sale, the applicant did not adduce
any other documentary evidence of ownership of the
stand by the
deceased. The second respondent’s case was that she applied for
the stand. At that time women were not allowed
to hold identity
documents. The deceased agreed to have his identity document used
to get the house for her. His particulars,
as reflected on the
identity document, were used to complete the application. They were
entered in all other documents relating
to the house. The deceased
signed these documents. She said that although it appeared from the
records that the deceased owned
the house he never lived in it. It
was her house.





The learned
judge who heard the case found that the second respondent and her
witnesses were credible witnesses. He found that
the second
respondent’s story was supported by an affidavit sworn to by the
deceased during his lifetime, in which he acknowledged
that she had a
share in the ownership of the house. At one time he asked the
fourth respondent to remove the second respondent’s
name from the
records relating to the house. The learned judge said that it was
unlikely that the deceased could have acknowledged
the second
respondent’s right in the ownership of the house when they had
separated from each other a long time ago and were not
living
together in the house. He found that there was no valid agreement
of sale on the basis of which the applicant could be granted
transfer
of the property. It was also the learned judge’s finding that the
applicant had not paid the purchase price. The claim
was dismissed
with costs prompting the appeal to this Court.





In the
meantime, the applicant changed legal practitioners. He placed
before us documents which he claims contain evidence of
ownership of
the property by the deceased. These documents are copies of the
application for the house made in the name of the
deceased. They
included the notification of the decision by the fourth respondent to
allocate the deceased the stand, and the agreement
of the
lease-to-buy entered into between the deceased and the fourth
respondent on 8 March 1994.





The
applicant now applies for leave to adduce the documentary evidence on
appeal to show that the deceased had the right, in the
stand to cede
to him and that the second respondent’s claim that the house
belonged to her was false. He has not denied the allegation
that
the fresh evidence he seeks to adduce on appeal was available at the
offices of the fourth respondent and that as public documents
they
were easily obtainable. The applicant disclosed that at the time he
personally perused a file which contained the documents
at the fourth
respondent’s offices. His position was that the evidence was not
adduced during the trial because his erstwhile
legal practitioner did
not appreciate its probative value in the determination of the issues
by the High Court.





The first
and second respondents have opposed the application. Their main
ground is that the fresh evidence the applicant wants
to adduce on
appeal was available and easily obtainable from the fourth
respondent’s offices before and during the trial. They
said that
the applicant did not allege that he did not see the documents when
he perused the relevant file. It was their contention
that the
leading of the evidence would not have an important influence on the
result of the case.





In
considering the application it is important to bear in mind that this
Court has a discretion in the matter. The factors it
has to take
into account in the exercise of that discretion have been stated in
numerous decided cases. These are whether –






(a) the evidence could not with
reasonable diligence have been obtained in time for the trial;


(b) the
evidence is apparently credible;


(c) the
evidence would probably have an important influence on the result of
the case although it need not be decisive; and


(d) conditions
have changed since the trial so that the fresh evidence would
prejudice the opposite party.





See
Farmers Co-op (Pvt) Ltd
v Borden Syndicate (Pvt) Ltd

1961 R & N 28 at 31 B – C;
Leopard
Rock Hotel Co. (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd

1994 (1) ZLR 255 (S) at 260 G and
Warren-Codrington
v Forsyth Trust (Pvt) Ltd

2000 (2) ZLR 377 (S) at 381 B.





On the first
point, I agree with the first and second respondents that the
evidence sought to be adduced on appeal was available
and could
easily have been obtained by the applicant before and during the
trial. The applicant has not argued that the evidence
was difficult
to get. He did not say that he did not see the documents containing
the evidence at the time he perused the file
relating to the house at
the offices of the fourth respondent. His contention is that his
erstwhile legal practitioner failed to
appreciate the relevance of
the evidence to the proof of the issues raised at the trial. The
statement is an admission that the
legal practitioner who was the
applicant’s chosen agent deliberately decided not to adduce the
evidence because he did not consider
it of probative value.





An
error of judgment on the part of a litigant or his legal practitioner
as to the probative value of a piece of evidence is not
a good ground
on which an appellate court can grant leave to adduce the evidence on
appeal. To do so would be tantamount to allowing
a party to re-open
a case as opposed to leading further evidence which was not available
to the party at the time of trial but was
discovered after the trial.
In
Kearns v Walters
Enterprises
SC 160-90
cited in
Warren-Cordrington’s
case
supra at p
381
F,
McNALLY  JA
said:





“In
the circumstances we do not wish to set a precedent for litigants to
treat the Supreme Court as a second court of first instance,
a court
in which they can try out the issues again on fresh facts if the
first set proves to be inadequate.”








In
Colman v Dunbar
1933
AD
141 at 161 WESSELS CJ said:





“It
is essential that there should be finality to a trial and therefore
if a suitor elects to stand by the evidence which he adduces
he
should not be allowed to adduce further evidence except in
exceptional circumstances.”





The
documentary evidence the applicant seeks to adduce on appeal does not
necessarily disprove the basis of the finding by the learned
judge
that the second respondent had rights in the stand. The learned
judge made the finding on the basis of the affidavit made
by the
deceased himself and on the credibility of the evidence adduced by
the second respondent and her witnesses. Apart from the
fact that
an appellate court will not lightly interfere with a finding of a
trial court on the credibility of witnesses, it is clear
that the
second respondent gave evidence which supported the contents of the
documents sought to be adduced as fresh evidence on
appeal.





Without
referring to the documentary evidence, the second respondent’s
evidence was in effect an admission of the fact that the
identity
particulars of the deceased were recorded in the documents relating
to the application for the allocation and ownership
of the house.
The learned judge, in accepting her story, found as a fact that the
identity particulars of the deceased were on
these documents because
they were contained in the identity document used by the second
respondent to apply for the house. It appears
to me that the
adduction of the documentary evidence which, on the evidence of the
second respondent, contained facts that were common
cause would not
probably have an important influence on the finding by the learned
judge on the credibility of the second respondent’s
evidence as to
why the identity particulars of the deceased were on those documents.
It appears to me that the adduction of the
documentary evidence
would probably not have an important influence on the result of the
case. Whether the decision of the court
a
quo
is correct or not
is not for this Court to determine at this stage of the proceedings.





The
application is accordingly dismissed with costs.















SANDURA  JA: I
agree.














GWAUNZA JA: I
agree.















Musunga
& Associates
,
applicant’s legal practitioners


Mandizha &
Company
, second
respondent’s legal practitioners