Dingaani Thomas Mbondiya v Christon Chiridza

### Preamble
1
HH 528-25
HCH 1994/23
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DINGAANI THOMAS MBONDIYA

versus

CHRISTON CHIRIDZA

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE 8 September & 9 September 2025

Admissibility of evidence

Mrs M Dube-Tachiona, for the plaintiff

Ms N C Zhou, for the defendant

DUBE-BANDA J:

This court is in the process of hearing evidence in this trial. During the testimony of a witness called by the defendant. Mrs. Dube-Tachiona counsel for the plaintiff raised two objections; the first leg of the objection was that the evidence of this witness was irrelevant and therefore inadmissible. The essence of the second leg of the objection was that this witness was testifying on character evidence which is inadmissible.

The background to this objection is that the plaintiff is suing the defendant for adultery damages. The plaintiff case is predicated on the allegations that the defendant committed adultery with one Nyashadzashe Munyaradzi Maphosa (“Maphosa”) to whom the plaintiff is married in terms of the Marriage Act [Chapter 5:11] and that the marriage subsists. The facts giving rise to the objections are that the defendant called plaintiff’s wife as his witness in this matter. The witness, Maphosa, is the one at the center of this dispute, in that she is alleged to have had an extra-marital relationship with the defendant. See Mbondiya v Chiridza HH-516-25. This witness testified that she sued the plaintiff in HCHF7305/22 for divorce. She gave the reasons for suing for divorce as that she was not comfortable with the plaintiff, in that he would come home drunk and force her to have sex with him. She also alleged that the plaintiff would insult her in the presence of visitors, and he would insult her mother calling her a witch. It was further testified that he would say to the witness’s mother she must leave with the witness.  It was testified that when drunk he would vomit and urinate on himself, and the witness would wash the blankets.  It was at this point that counsel for the plaintiff raised the objections stated above.

Mrs. Dube-Tachiona submitted that this evidence was irrelevant and does not assist the defendant in his defence. It was submitted that the evidence is that the plaintiff is a rapist and a bully and such evidence is not relevant to this case. Counsel submitted further that this is evidence of character and is excluded by s 33 of the Civil Evidence Act [Chapter 8:01] and is not saved by s 33(a) of the Act. Counsel further submitted that the evidence of the character of the defendant does not meet the requirements of s 48 (1) (b) as read with s 48 (2) (b) (c) in that such evidence would merely cause confusion and waste the time of the court. It was contended that it has no probative value, and it must be ruled inadmissible.

Per contra, Ms. Zhou counsel for the defendant submitted that the evidence is relevant in that it is the plaintiff’s case that it was the adultery between the defendant and this witness which caused the breakdown of his marriage. Counsel submitted that this witness must be allowed to testify on the cause of the breakdown of the marriage between her and the plaintiff. Further it was submitted that her evidence could not be classified as evidence of character in that it was not shown that there was a deliberate effort to damage the reputation of the plaintiff. It was argued that the witness was merely testifying on the cause of the breakdown of her marriage to the plaintiff. It was argued that it is relevant and admissible.

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; Apostolic Faith Mission in Zimbabwe v Masamba & Ors HH-505-25. The plaintiff’s case is that it is the extra-marital relationship between his wife, the witness and the defendant that led to the total collapse or breakdown of his marriage.  Therefore, the defendant is presenting evidence, albeit from the plaintiff’s wife that it was not the extramarital affair that caused the breakdown of the marriage. In this regard the evidence is relevant to the issues for determination before court. It is admissible evidence, it a question of what weight to be attached to it at the end of the trial.

I now turn to the contention that the witness was testifying on inadmissible character evidence. Character evidence is testimony offered to show that a person acted in a certain way on a particular occasion because of their character, disposition, or reputation. In casu, the general tenor of the testimony of this witness is that the plaintiff is of a bad character and that is what caused the breakdown of the marriage. It is trite that the common law position is that in civil cases the characters of the parties are generally considered irrelevant. However, in certain specific cases evidence pertaining to the character of a party will be regarded as relevant either in respect of liability or in quantifying damages. This common law position is codified in s 33 of the Civil Evidence Act. I take the view that the evidence of this witness on the alleged character of the plaintiff is relevant and admissible in terms of s 33(a) of the Civil Evidence Act, which says:

“No evidence as to the character or reputation of any party to civil proceedings shall be admissible except—

(a)in any claim for damages where the character or reputation of the party is relevant to any fact in issue or the amount of damages.”

The defendant has a right to present evidence of the character of the plaintiff to dispute liability or in mitigation of damages. This position is sanctioned by s 33(a). For completeness, this evidence cannot be excluded in terms of s 48 of the Civil Evidence Act.  In that it cannot be said it would cause confusion or waste of time. The issue of its probative value will be assessed and determined at the end of the trial. In the circumstances, the second leg of the objection can also not succeed.

In conclusion, my view is that the evidence of this witness about the cause of the breakdown of her marriage to the plaintiff is relevant and admissible. There is no rule of evidence that excludes it. In addition, the evidence on the character of the plaintiff is relevant and admissible in terms of s 33(a) of the Civil Evidence Act. In the context of this case, these are not issues of admissibility, but issues of weight. The admissibility of evidence and weight of evidence should not be confused. If what is presented can in law be properly placed before court, it is admissible. There are no degrees of admissibility. Evidence is either admissible or inadmissible.  It is only after it has been admitted that issue of its weight arise. Weight relates to the persuasiveness of evidence, its probative value, standing alone or in conjunction with other pieces of evidence before court. See Schwikkard PJ et al Principles of Evidence (Juta 2002) 20; S v Fourie 1973 1 SA 100 (D) 102H.

This court cannot deny a litigant an opportunity to rebut evidence against him, this would amount to a serous infringement of the right to a fair hearing. See Mbondiya v Chiridza HH-516-25; S v G (HH 46 of 2002) [2002] ZWHHC 46 (9 April 2002).  To uphold these objections would result in an injustice and will destroy the very basis upon which the justice system rests. It is for these reasons that objections cannot succeed.

In the result, it is ordered as follows:

The objections that the evidence is irrelevant and inadmissible and that it constitutes inadmissible character evidence is overruled.

Dube Banda J: ……………………………………………….

Dube-Tachiona & Tsvangirai, plaintiff’s legal practitioners

Chatsama and Partners, defendant’s legal practitioners