ELECTRICAL & FURNITURE TRADING CO (PVT) LTD v M & N TECHNICAL SERVICES (ZIMBABWE) (PVT) LTD 1988 (2) ZLR 265 (HC)

Flynote

Practice D and procedure — evidence — essential witness residing outside jurisdiction and refusing to return to jurisdiction to give evidence — reasonable grounds for such refusal — what are — High Court of Zimbabwe Rules 1971 — O 46 R 409 — "at any place" — meaning of — whether court may order evidence to be taken before it at a place outside Zimbabwe.

Headnote

During the course of a trial, a witness vital to the plaintiff's case refused to attend court to give evidence. The witness resided in South Africa, though he had been resident in Zimbabwe when the contract which was the subject of the trial was negotiated. He submitted an affidavit in which he explained that he refused to return to Zimbabwe to attend court because he feared violence against him by the chief negotiator for the defendant; and that he feared that he would be unlawfully detained or interrogated by the Central Intelligence Organization following false reports made to it by the defendant's chief negotiator. He indicated that he was prepared to travel to Francistown, Botswana, to give evidence there. The plaintiff applied for the court to order the examination of the witness in terms of R 409 of the High Court of Zimbabwe Rules 1971; alternatively, it applied for the court to order the issue of a commission under R 410, with the presiding judge as the commissioner. The defendant argued that the plaintiff had not satisfied the basic requirements for the grant of an order under either Rule and that R 409 did not empower the taking of evidence outside Zimbabwe.

Held, that R 409 allowed the court to make an order "where it [appeared] necessary for the purpose of justice". In this case, the witness' evidence appeared essential to the plaintiff's case; if the evidence were not heard and the plaintiff's case were true, there would be an injustice and a substantial loss to the plaintiff, coupled with a dishonest gain by the defendant.

Held, further, that the cumulative effect of the factors mentioned by the witness constituted a reasonable ground for him to refuse to come to Zimbabwe to give evidence.

Held, further, that while it would be artificial for the trial judge to appoint himself as commissioner under R 410, such a procedure usually relating to the appointment of a third party to act as commissioner, R 409 allowed the trial judge to hear the witness' evidence outside Zimbabwe, the c words "at any place" including a place outside the jurisdiction of the court.