M B ZIKO (PVT) LTD & ANOR v CESTARON INVESTMENTS (PVT) LTD & ANOR 2008 (2) ZLR 1 (S)

Flynote

Evidence — credibility — demeanour — extent to which it may be relied on — all circumstances of case must be considered

Evidence — document — date of execution — presumption that document is executed on date stated in document

Evidence — document — receipt of document — parties having agreed on method of delivery — all requirements complied with — presumption that letter delivered

Headnote

An appellate court may still disagree with the finding of the trial court on the credibility of a witness if, on examination of the evidence and considering all the circumstances (such as inferences from unquestioned facts and probabilities) of the case, it comes to the conclusion that the trial court's findings on the credibility of the witness cannot be supported. Whilst demeanour is an important factor to be taken into account in the assessment of a witness's credibility, the weight to be placed on it in determining the question whether the evidence given is reliable and probative of the facts in issue must depend on all the circumstances of the case.

Where a specific method of communication has been chosen by the parties and all the necessary requirements for its use, such as proper addressing and posting, have been complied with as directed, a presumption arises of the fact that the letter was delivered or received unless there is proof to the contrary. The bare denial of receipt of the letters was not sufficient to discharge the onus on the first respondent to rebut the presumption that the letters were delivered at the address to which they were posted.

There is also a presumption that a document was executed on the day of the date it bears. In other words, unless the contrary is proved the date on a document must be taken as its true date.