Apostolic Faith Mission in Zimbabwe v Abraham Masamba & 2 Ors

### Preamble
1
HH 505 - 25
HCH 6673/21
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APOSTOLIC FAITH MISSION IN ZIMBABWE

versus

ABRAHAM MASAMBA

and

AMON NYIKA CHINYEMBA

and

ODAR HOUSING DEVELOPMENT CONSORTIUM

HIGH COURT OF ZIMBABWE

DUBE BANDA J

HARARE; 3 September 2025

Admissibility of evidence of a witness sitting in court while other witnesses testified

B. Magogo for the plaintiff

L. Madhuku for the 1st and 2nd defendants

C. T. Manyani for the 3rd defendant

DUBE-BANDA J:

This Court is in the process of hearing the evidence of the plaintiff in this matter. After Rev. Johannes Nehanda was sworn in and before he commenced his testimony as a witness for the plaintiff, Prof. Madhuku counsel for the second defendant objected to the admissibility of his entire testimony. After hearing the parties and in a brief ex-tempore ruling, I overruled the objection. These are the reasons for my decision.

The plaintiff is Apostolic Faith Mission in Zimbabwe (“AFM in Zimbabwe”) a common law universitas recognized in terms of the laws of Zimbabwe. The plaintiff being a universitas has no physical existence, it is therefore in this context that it is represented in court by its office bearer, Rev. Johannes Nehanda. It is common cause that Rev. Johannes Nehanda was sitting in court while the other plaintiff’s witnesses were testifying.

Counsel informed the court that this witness was inside the court when other witnesses of the plaintiff testified. It was submitted that he heard the evidence of the other plaintiff’s witnesses and how they were cross-examined. Counsel noted that there is no provision in the Civil Evidence Act [Chapter 8:01] nor the High Court Rules, 2021 that deal with the exclusion of the evidence of a witness who sitting in court during the testimony of the other witnesses. However, counsel argued that in terms of the common law such evidence is inadmissible because it undermines the integrity of the trial. Counsel argued that because the plaintiff being a universitas, represented in court by the witness whose testimony was objected to, this witness should have been the first to testify.

Per contra, Mr Magogo counsel for the plaintiff submitted that there is no rule of law that bars a witness who was sitting in court during the testimony of other witness from testifying. Counsel argued that it was not an issue of admissibility, but of weight. In essence, counsel argued that the objection had no merit and should be dismissed.

The starting point is s 26 of the Civil Evidence Act [Chapter 8:01] which says: “Evidence that is irrelevant or immaterial and cannot lead to the proving or disproving of any point or fact in issue shall not be admissible.” However, not all relevant evidence is admissible. The common law rule is that any evidence which is relevant is admissible unless there is some other rule of evidence which excludes it. See R v Schaube - Kuffler 1969 2 SA 40 (RA) 50B.  It is common cause that the issues to be testified to by Rev. Johannes Nehanda are relevant to this matter. I say so because I did not hear Prof. Madhuku submitting to the contrary, therefore his evidence cannot be held inadmissible unless there is a rule of evidence that excludes it.

The jurisprudence in this country and the region is that that there is no legal principle which precludes a witness from sitting in court while another witness is giving evidence. However, there is a rule of practice that a witness should not be in court while another witness is giving evidence, and if this happens, the witness should be allowed to testify and thereafter the issue of his/her credibility should be left with the court to assess. See Nguti v Anthonissen (I 93/2015) [2017] NAHCNLD 24 (27 March 2017) (Namibia). In S v G (HH 46 of 2002) [2002] ZWHHC 46 (9 April 2002) per Ndou J had said:

“The appellant’s request to call his wife was turned down on the basis that she was sitting in court when he testified. This does not seem to be a valid reason for turning down his request. There is no legal basis as this fact only affects the weight to be attached to her testimony.”

In S v Bashi Mapogo CRTF 20-05 [Francistown 13, 14/11 & 19/12/06, a Botswana case (unreported) the court was faced with a similar scenario where in a civil case a witness who had not testified was present in court when the other witness was giving evidence. The court said:

“I took the position that although ideally, a witness is required not to be in court until he or she is called and thereafter accused, where that anomaly eventuates, the said witness should be allowed to testify and the issue of his or her credibility should be left to the court to assess.  Where the court, in view of that witness’s demeanour and on a critical assessment of his or her evidence, comes to the conclusion that he or she was influenced, the court may decide on what weight, if any, to attach thereto.”

In addition, in Lufu v The State [1998] BLA 562 at 655 G-H (Botswana) where Gaefele J remarked:

“For completeness’ I deem it necessary to state that even where the witness was in court and had heard the evidence, he should be allowed if called upon to give evidence.  Thereafter the court will be in a better position to assess his demeanour and should in fact record that fact in the record of the proceedings and evaluate their evidence when it comes to judgment.”

In Happy Mbewe v The People (1983) Z.R. 59 (H.C.) (Zambia) a criminal case, the accused was charged with inflicting grievous bodily harm. At the close of the prosecution case, he was put on his defence. He called one witness who had been present in court throughout the trial, and the trial court disallowed his testimony and convicted the accused.  On appeal, the court said that where a situation arises in which a witness to be examined heard the evidence of the other witnesses, his evidence is still admissible but the court, in considering in evidence at the end of the trial will have to determine as to what weight to attach to that evidence.

The issues of whether the evidence of a witness who was sitting in court while other witnesses were testifying would undermine the integrity of the trial, or compromise the fairness of the trial can only be assessed and determined at the end of the trial. The question whether his evidence will be influenced by the witnesses who testified before him can also be assessed and determined at the end of the trial. It would have been preferable that Rev. Johannes Nehanda was to be the first to testify. However, the fact that he was not the first to testify and was sitting in court while other witnesses were testifying does not affect the admissibility of his evidence. In terms of the common law, such does not debar a witness from testifying. It is not an issue of admissibility, but of weight. It is for these reasons that I overruled the objection and allowed Rev. Johannes Nehanda to testify for the plaintiff.

Dube Banda J: …………………………………………….

Shambamuto Law Chambers, plaintiff’s legal practitioners

Lovemore Madhuku Lawyers, 1st and 2nd respondents’ legal practitioners

TH Chitapi & Associates, 3rd defendant’s legal practitioners