HILTUNEN v HILTUNEN 2008 (2) ZLR 296 (H)

Flynote

Appeal — lapsing of — question of fact to be determined by clerk of the court

Evidence — hearsay — civil case — affidavit containing hearsay evidence — Civil Evidence Act [Chapter 8:01] — s 27(1) — effect of — first hand evidence may be admissible in certain circumstances

Evidence — hearsay — civil case — urgent and interlocutory applications — when hearsay evidence is admissible

Practice and procedure — affidavit — founding affidavit — urgent and interlocutory applications — hearsay evidence in founding affidavit — when such evidence may be admissible

Headnote

The applicant's founding affidavit was deposed to, not by the applicant herself, but by a person to whom a general power of attorney had been granted by the applicant. There were no facts in the affidavit that the deponent, as a general agent of the applicant, would have personal knowledge of. The entire founding affidavit was hearsay and was an affidavit of belief and information. The deponent either believed that what she was saying was correct or had been informed and believed the information to be correct.

Held, that in application proceedings, it is to the founding affidavit that the court will look to for the cause of action being alleged by the applicant and the evidence that the applicant has to sustain such a cause of action. Hence an applicant must stand or fall by his founding affidavit and the facts alleged therein, because those are the facts which the respondent is called upon either to affirm or deny. Generally speaking, affidavits must be confined to such facts as the witness is able of his own knowledge to prove, except in interlocutory motions, in which statements as to belief, with the grounds thereof, may be admitted. It is also a long-standing practice in urgent applications to receive hearsay evidence if an acceptable explanation is given why direct evidence is not available and the source of the information and the grounds for the belief in the truth of the statement are disclosed.

Held, further, that the practice of the court has to some extent been amended by the relaxation to the rule against hearsay evidence provided in s 27 of the Civil Evidence Act [Chapter 8:01], making first-hand hearsay evidence admissible on conditions. For first-hand hearsay to be admissible under the Act, the evidence must be about a statement made orally or in writing by another person. The person who made the statement must be identified and it must appear from the nature of the evidence that the contents of the statement would have been admissible from the mouth of that person were he present and testifying. Thus, if the statement were, for instance, on an opinion held by that other person, then the evidence would be inadmissible because opinion evidence is inadmissible from the mouth of any witness other than expert witnesses. Similarly, second- and third-hand hearsay remains inadmissible as the amendment to the law only provides for first-hand hearsay.

Held, further, that in having recourse to the provisions of s 27(1) of the Civil Evidence Act in order to determine whether the contents of the affidavit could be admitted, the source of the information and the basis of belief by the deponent were not given, so it was not possible to determine whether, if the source of the information were present and testifying, such information as was supplied to the deponent would have been admissible.

Held, further, that the lapsing of an appeal is a fact that is declared by the clerk of the court who is the custodian of the record of appeal. Delays caused by the processing of appeal records in these days of economic challenges are not evidence of failure to prosecute an appeal.

Held, accordingly, that the affidavit before the court was inadmissible