Presbytery of Zimbabwe of the Uniting Presbyterian Church in Southern Africa v The Presbytery of Zimbabwe Education Trust & 8 Ors

### Preamble
PAGE \* MERGEFORMAT 2
HH 480/25
HCH8164/22
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PRESBYTERY OF ZIMBABWE OF THE UNITING PRESBYTERIAN CHURCH IN SOUTHERN AFRICA

versus

THE PRESBYTERY OF ZIMBABWE EDUCATION TRUST

And

REVEREND PAUL NESHANGWE

And

REVEREND WILBERT RUNYARARO SAYIMANI

And

FRED MATTHEW CHIGWIDA

And

SIMISO MTSHANE KHUMALO

And

GILBERT MATIKA

And

VUSUMUZI ROBERT SINYOKA

And

JONATHAN MOYO

And

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MUSHURE J

HARARE 13-17 & 27- 31 January; 31 March; 1-4 April; 8 May & 21 August 2025

Absolution from the instance

T. Biti for the plaintiff

J. Tshuma & K. Mpofu for the first and the fourth to the eighth defendants

No appearance for the second, third and ninth defendants

MUSHURE J:

INTRODUCTION

This is an application for absolution from the instance. The application is made in terms of r 56(6) of the High Court Rules, 2021 (‘the Rules’).

BACKGROUND

The plaintiff is a duly constituted corporate body. It is constituted by its constitution, known as the Manual of Faith and Order (“the Manual”). The first defendant (“the Trust”) is a trust, which, it is claimed, was registered twice with the Registrar of Deeds deed of trust no. MA25/2010. The Trust is in charge of running the plaintiff’s schools. The second and third defendants are former Moderators of the plaintiff. The plaintiff’s Moderators are akin to Bishops of a church. The fourth to seventh defendants are trustees of the first defendant and are cited in their official capacity as such. The eighth defendant is a legal practitioner and a notary public. The ninth defendant is the Registrar of Deeds.

The plaintiff claims that the third to the seventh defendants and one, Martin Young, who is now late, appeared before the eighth defendant in his capacity as a notary public to register the deed of trust MA25/10. On 9 March 2010, the ninth defendant registered the first defendant as a Trust under No. 25/2010. That deed of trust indicates that the third defendant is the founder and creator of the Trust, and that the fourth to the seventh defendants and Martin Young were appointed as trustees of the first defendant.

The plaintiff also claims that on 24 July 2008, the third defendant appeared before the eighth defendant in his capacity as a notary public, together with the third to the seventh defendants and Martin Young, and registered the Trust in the name of the first defendant. This Trust, it is alleged, was also registered on 9 March 2010 under MA25/2010. In terms of the trust deed, the second defendant is the founder and creator of the Trust, and he appointed the fourth to eighth defendants, together with Martin Young, as its trustees. In the result, there are purportedly two deeds of trust creating the first defendant namely deed of trust A, being the deed of trust wherein the founder is the third defendant, Reverend Sayimani and deed of trust B, being the deed of trust wherein the second defendant, Reverend Neshangwe, is the founder of the Trust.

The plaintiff asserts that the deeds of trust are a nullity and seeks to have them set aside. It questions the procedure adopted in registering the deeds, especially that firstly, neither the second nor the third defendant had the authority to establish the Trust as they purportedly did. Secondly, that the trustees did not appear before a notary public to execute the trust deeds. Thirdly, that the two founders, namely the second and the third defendants, could not create a single Trust using two different trust deeds. Fourthly, that the Trust does not have a beneficiary. Finally, that deed of trust B purports that Reverend Sayimani and the fourth to seventh defendants, along with Martin Young, appeared before the eighth defendant in his capacity as a notary public on 24 July 2008, yet, the very same deed further refers to a later date as the date of appearance, that is 15 January 2010.

In the alternative, the plaintiff seeks the dissolution of the Trust, arguing that the second to the seventh defendants have failed to discharge their duties as trustees of the plaintiff, who run the plaintiff’s schools. The plaintiff claims the trustees have failed to account to the plaintiff on how the schools are being run; to provide annual audited statements in respect of the first defendant; to provide income and expenditure statements to the plaintiff explaining how the schools are being run and have managed the schools incompetently. As a result, the plaintiff claims that, through a special commission appointed on 26 February 2022, it resolved to dissolve the first defendant.

After the plaintiff sued out and served the summons in this matter, only the first and the fourth to the eighth defendants entered an appearance to defend. In their plea, the said defendants argued that there is no entity named Presbytery of Zimbabwe of the Uniting Presbyterian Church in Southern Africa. They stated that these are in fact two distinct entities, that is, the Presbytery of Zimbabwe on one hand and the Uniting Presbyterian Church in Southern Africa on the other. They further averred that the Uniting Presbyterian Church in Southern Africa owns the schools as reflected by the first defendant’s deed of trust and the Manual. In the circumstances, they contended that, the Uniting Presbyterian Church in Southern Africa, having not been a party to the claim or consented to the action, the plaintiff had no locus standi in the present matter.

The said defendants, however, admitted that the deed of trust MA25/10 was registered on 9 March 2010 and that the third to seventh defendants appeared before the eighth defendant on 24 July 2008. They added that, upon registration of the trust deed, the ninth defendant refused to register the deed of trust as amendments were required to be done by the eighth respondent. After attending to the amendments, the deed of trust was registered on 9 March 2010 under MA25/2010. They refuted the plaintiff’s claim that two deeds of trust were registered by the ninth defendant. Instead, they averred that the plaintiff duplicated the cover page of MA25/2010 and superimposed it on a fictitious deed of trust in a bid to mislead the court. Further, they stated that the deed of trust was duly and procedurally registered and that they were given express authority to do so by both the plaintiff and the Uniting Presbyterian Church in Southern Africa. It is their firm belief that they have discharged their duties as trustees of the first defendant. Finally, they claimed that the special commission of the plaintiff has no effect without the consent of the Uniting Presbyterian Church in Southern Africa or its General Assembly, which is the owner of the schools run by the first defendant.

At the conclusion of the pre-trial conference, it was resolved that the matter be referred to trial on the following issues:

Whether the deed of trust or the trustees was or were validly and lawfully registered;

Whether the plaintiff has the authority to cause the registration and or the dissolution of the Trust;

Whether the schools have been run in accordance with the terms set out in the deed of trust;

Whether the schools have been run in accordance with the principles of good governance and proper administration.

PROCEEDINGS BEFORE THIS COURT

On the date the trial was due to commence, Mr Tshuma, for the first and the fourth to the eighth defendants, indicated that they intended to raise a point on law on whether or not the plaintiff has the authority or power to dissolve the first defendant, which point was strenuously opposed by the plaintiff. I dismissed the application on the basis that whilst a point of law can be taken at any time, the point of law had not been improperly taken. The matter proceeded to trial.

At the end of the plaintiff’s case, the first and the fourth to the eighth defendants made an application for absolution from the instance. For convenience, I will hereinafter refer to the first and the fourth to the eighth defendants collectively as “the defendants”.

The defendants’ application for absolution from the instance is based on four main points. Firstly, the defendants argue that the first two witnesses who testified for the plaintiff, Reverend Neshangwe and Reverend Sayimani, are barred from participating in these proceedings. Secondly, they argue that the plaintiff relied on inadmissible evidence, specifically a copy of the trust deed, and failed to produce the original deed. Thirdly, it is their argument that the plaintiff did not demonstrate that it had the necessary authority to either dissolve the first defendant or bring the matter before the court for such dissolution. Lastly, they contend that the plaintiff relied on hearsay evidence in their attempt to challenge the governance of the first defendant.

Per contra, the plaintiff submits that given the strength of the evidence led by the plaintiff and admissions made by the defendants in their own papers, the application for absolution from the instance is an abuse of court process. It further submits that the plaintiff has made more than a prima facie case and that there is sufficient evidence upon which a reasonable court would find in its favour.

ISSUES FOR DETERMINATION

The sole issue for determination is whether or not there is basis to grant absolution from the instance at the end of the plaintiff’s case in this matter.

THE LAW

After the plaintiff has closed its case, the defendant, before commencing his own case, may apply for the dismissal of the plaintiff’s claim. Should the court accede to such a request, the judgment will be one for absolution from the instance.

Rule 56 (6) of the Rules provides that:-

“(6) At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant or his or her counsel on his or her behalf may address the court and the plaintiff or his or her counsel on his or her behalf may reply. The defendant or his or her counsel may thereupon reply on any matter arising out of the address of the plaintiff or his or her counsel.”

The term ‘absolution from the instance’ describes a finding that may be made at either of two distinct phases of the trial. In both cases, what it simply means is that the evidence led is insufficient for a finding to be made against the defendant: Sibanda v Chikumba & Anor 2014 (1) ZLR 219 (H) at p. 224 G. Where the burden of proof is on the plaintiff, he shall adduce evidence first and if absolution is not decreed, the defendant will then adduce his evidence. Where absolution from the instance is refused at the close of the plaintiff’s case, the defendant can open his case, simply close it and still apply for absolution from the instance on the same evidence: Efrolou (Pvt) Ltd v Muringani 2 2013 (1) ZLR 309 (H) at p.316B-C.

The test for granting absolution from the instance was set out in United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) by Gubbay CJ in the following terms:-

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.” (at p. 343C)

The critical question that must exercise the court’s mind in considering whether or not to decree absolution from the instance is, what might a reasonable court do, that is, is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? Conversely, if the application is made after the defendant has closed his case, the test is, what ought a reasonable court do? See Supreme Service Station (1969) (Pvt) (Ltd) v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at p. 4A -5D; and ZIMASCO (Pvt) Ltd v Tsvangirai & Ors 2020 (1) ZLR 176 (S) at p. 181 F-G.

The onus on a defendant who applies for absolution from the instance before closing his case is greater than that placed upon him when he applies for absolution from the instance after closing his case. Supreme Service Station (1969) (Pvt) (Ltd) v Fox and Goodridge (Pvt) Ltd supra at p. 5F-G.

An order of absolution from the instance at the close of the plaintiff’s case can appropriately be made after all the evidence led by the plaintiff has not laid a prima facie case upon which a court may find for the plaintiff:  ZIMASCO (Pvt) Ltd v Tsvangirai & Ors supra at p. 181 F-G.

Where there is doubt as to what a reasonable court might do, a judicial officer should always lean on the side of allowing the case to proceed: Efrolou (Pvt) Ltd v Muringani 2 supra at p. 317E.

An important observation is made in the case of Katerere v Standard Chartered Bank Zimbabwe Ltd HB 51-08, cited with approval by Guvava JA in Muteswa Wholesalers (Pvt) Ltd & Ors v Delta Zimbabwe Ltd supra at p. 787 F-G that: -

“The court should be extremely chary of granting absolution at the close of plaintiff’s case. The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim-Claude neon Lights (SA) Ltd v Daniel 1976 (4) SA 403(A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26(A); Sithole v PG Industries (Pvt) Ltd HB 47-05”.

At this stage of the trial, absolution from the instance will be granted if there is insufficient evidence on which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. Put differently, if the plaintiff fails to discharge the onus on his cause of action, which evidence, would have enabled the court to call the defendant to answer the allegations, the court can grant absolution from the instance.

ANALYSIS

As previously outlined in this judgment, the defendants’ application is anchored on four distinct points. I propose to assess the merits of the application in light of these four grounds.

The standing of the plaintiff’s first two witnesses’ evidence

The defendants contend that the evidence adduced from the plaintiff’s first two witnesses, namely Reverend Neshangwe and Reverend Sayimani, is inadmissible because they are barred. They contend, further, that if their evidence is expunged from the record, the evidence that stands on record is insufficient to uphold the plaintiff's claim.

It is common cause that the first two witnesses who took the witness stand on behalf of the plaintiff are already cited in this suit as the second and third defendants. It is also common cause that these defendants turned witnesses were served with the summons in this matter but they did not enter appearance to defend. The defendants’ counsel, Ms Mpofu, has argued in this court that by operation of r20 (7) of the Rules, the two witnesses are barred for failure to enter appearance. Ms Mpofu has argued, further, that in accordance with r39 (4) of the Rules, while this bar is in operation, the two witnesses are not permitted to appear personally in this action save for the purposes of applying for the removal of the bar.

It is common cause that the defendants’ objection comes at a time when the two witnesses have already testified and been excused by this court. The defendants’ prayer therefore is for the evidence of the two witnesses to be expunged from the record.

Mr Biti, for the plaintiff, argues that the bar does not apply to the two witnesses in their capacity as witnesses.  The two witnesses are not appearing as defendants but as the plaintiff’s witnesses. He has referred this court to s4 of the Civil Evidence Act [Chapter 8:01] which allows for the calling of any competent person as a witness. He further argues that in civil proceedings, a plaintiff can call a defendant as a witness and vice versa. For this proposition, he has referred the court to the text by S.E. Van Der Merwe, The Principles of Evidence, 3rd Edition, (2012) Juta & Co at p 422. He avers that there was nothing wrong with the plaintiff calling a defendant as a witness.

Section 4 of the Civil Evidence Act provides that: -

“Except as otherwise provided in this Act or any other enactment, every person shall be competent to give evidence in any civil proceedings.”

The word ‘competent’ is not defined in the Act. However, Black’s Law Dictionary, 8th Edition, (2004) at p. 855, defines the term as “the basic and minimal ability to do something.” The same dictionary at p. 4947 defines a ‘competent witness’ as “A witness who is legally qualified to testify.”

The requirement to enter an appearance to defend is in r20 (2) of the Rules. In turn, r20 (7) provides that a party who fails to enter such appearance shall be barred. The effect of a bar is that the party may not file documents, enter an appearance or be represented by a legal practitioner in the proceedings.

This raises the question: does ‘appearance’ in this context include appearing as a witness? The question has been addressed by this court in the case of Mutandwa v Zhuwake and Others HH-50-10 where the court remarked that:

“Whereas r 83 expressly bars a barred party from being heard other than for the upliftment of the bar, it does not preclude a barred party from giving evidence as a witness at the instance of an interested party.

Had the law maker intended to bar a party who has been barred from giving evidence it would have undoubtedly expressly said so.

As the law does not expressly bar a barred party from giving evidence as a witness it means that the law does not prohibit him from being called as a witness by another party in the same proceedings.

It is trite that what is not prohibited by law is permissible at law. For that reason, I hold that it is competent for the plaintiff to call the second defendant not withstanding that she has been barred from being heard as a party. Being heard as party is different from being heard as a witness for the other party.

It is accordingly ordered that the plaintiff be and is hereby allowed to call the second defendant as a witness in these proceedings.” [my emphasis]

The now r39 (4) mirrors the then r83 of the High Court Rules, 1971 which the court referred to in the above excerpt. Thus, the settled position is that failure to enter an appearance to defend does not preclude a party from being called as a witness by the plaintiff. Such a party remains a competent witness as there is no legal impediment to their testimony. On this basis, there being no legal disqualification for them to give evidence as witnesses, I find that the two defendants turned witnesses are competent witnesses.

Turning to the evidence led to prove the first issue for trial, deed of trust A has not been disputed by any party to the proceedings. In fact, the defendants accept it as the valid deed of trust. Reverend Sayimani testified that he did not sign the deed of trust, neither did he appear before the eighth defendant on 24 July 2008. This is contrary to what is stipulated in that deed of trust. The testimony on record is that at the relevant time, Reverend Sayimani had lost his wife and was away on compassionate leave. This was corroborated by Reverend Neshangwe. It was also Reverend Sayimani’s evidence that he was not authorised to execute the deed. Materially, his evidence on not signing the deed of trust, not appearing in Bulawayo and not appearing before the eighth defendant stands uncontroverted.  Prima facie, it would appear that the deed of trust may not have been properly registered, to the extent that it tells a story which the person who is said to have taken decisive and critical steps for its formation testifies that he did none of those things.

The defendants argue that the circumstances of the matter must be evaluated to see whether the plaintiff had the intention to create the Trust. They further argue that the extracts of the plaintiff’s meeting minutes are reflective of the plaintiff’s desire to create a trust. In their plea, the defendants pleaded that they received express authority to register the Trust.  In my view, this argument, if anything, lends credence to the need for the defendants to present their evidence to buttress their contentions. I make these comments alive to the observations made by Beadle CJ in the Supreme Service Station case supra that

“… rules of procedure are made to ensure that justice is done between the parties, and, so far as possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance”

In my view, the plaintiff has managed to prove a prima facie case in respect of this issue.

With regards deed of trust B, which was purportedly founded by Reverend Neshangwe, he testified that he neither appeared before the eighth defendant, nor was he the plaintiff’s Moderator at that time so he could not have possibly acted in that capacity. It occurs to me that if Reverend Neshangwe did not participate as alleged, prima facie, there is an irregularity with the second deed of trust as well. The fact that the defendants, in cross examining the plaintiff’s witnesses, disowned that document only goes to support that the deed of trust is prima facie irregular, thereby establishing a prima facie case.

In motivating their application, the defendants indicate in their heads of argument that they accept that a trust deed must have beneficiaries. If this is accepted by the defendants, then the absence of beneficiaries in either the deed they accept or the one that they disown puts the validity of those deeds into question. In my view, the justice of this case would therefore require that the court hears what the defendants have to say. The authority the defendants speak of in relation to deed of trust A, or the purported creation of a phantom deed of trust B by the plaintiff, is something which is peculiarly within the knowledge of the defendants and the plaintiff, having made out some case to answer, should not lightly be deprived of its remedy without first hearing what the defendants have to say.

Whether or not deed of trust B is admissible

The defendants also contest the admissibility of deed of trust B on the basis that it is not an original. Section 11 of the Civil Evidence Act provides that a copy of a document shall not be admissible to prove the document’s contents unless all the parties to the civil proceedings consent to the production of the copy. The court however has a discretion to permit the production of the copy where it is satisfied that the original document has been destroyed or irretrievably lost; or is in the possession of another party to the proceedings who refuses to produce the original document; or is in the possession of a person who cannot be required by law to produce the original; or is outside Zimbabwe; or for any other good and sufficient cause, it cannot reasonably or practicably be produced.

According to the evidence placed before this court, the plaintiff does not have any original documents in respect of both deed of trust A and deed of trust B. The defendants argue that there is no deed of trust B, and that this is a phantom deed that has been created by the plaintiff so as to bolster its claim. The plaintiff’s claim is that it is the defendant who authored the creation of the two deeds of trust. The evidence placed before the court by the plaintiff’s witnesses is that the two deeds of trust were received from the first defendant’s trustees in the form produced before the court.

Under the circumstances, I am of the view that there is good and sufficient cause to satisfy the court that the plaintiff cannot be reasonably or practicably be expected to produce the original documents. In the premises, I am of the view that this is an appropriate case for me, in the interests of justice, to exercise my discretion and find that the document is admissible. I remain alive to the fact that at this stage, I am not evaluating or rejecting the plaintiff’s evidence. I am also not being called upon to decide whether the evidence led by the plaintiff establishes what will finally have to be established in this trial.

In any event, even if I were to find that the trust deed is inadmissible, that does that demonstrate that the plaintiff has failed to establish a prima facie case in respect of the first issue. In my view, as long as the defendants concede that deed of trust A is the legally registered trust deed, and there are issues surrounding the regularity of that registration, the court has to hear what the defendants have to say in regard the evidence placed before the court by the plaintiff. Ultimately, I find that the plaintiff has established an essential element of its claim which calls into question whether the deed of trust or the trustees was or were validly and lawfully registered. To the extent that an irregularity in the process leading to the registration of deed of trust A has been placed before the court and has not been challenged, I cannot say there is no evidence at all on each and every essential averment that the plaintiff must have made to sustain the cause of action in respect of the first issue.

Whether the plaintiff has the authority to cause the dissolution of the Trust or bring the matter before the court for such dissolution

This is also the second issue referred for trial. The summons issued by the plaintiff indicates two fundamental claims: firstly, the plaintiff is seeking the setting aside of the deeds of trust due to unprocedural registration. Secondly, it seeks, in the alternative, the dissolution of the first defendant.

I digress momentarily to note that in respect of granting absolution on an alternative claim, in Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S), the Supreme Court considered the appropriate approach to follow where a defendant makes an application for absolution from the instance concerning the plaintiff’s claim, which encompasses two distinct claims: a principal claim and an alternative claim. The court stated-

“A trial court may be faced with an application for absolution from the instance in respect of two or more entirely unrelated claims, or where the liability of the defendant is based on an alternative and distinct cause of action. Where that occurs, I can perceive of no valid impediment to a court, if satisfied there is no evidence on which a reasonable judicial officer could or might find for the plaintiff upon some of the separate claims or on the main or alternative cause of action, ordering absolution from the instance upon them, and refusing it in respect of the remainder. That was the procedure adopted in Ntombela v Min of Police 1985 (3) SA 571 (O) at 573G-H and 574I-J. Its legitimacy is supported, so it seems to me, by the remarks of Beadle CJ in Supreme Svc Stn (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 4C-D”

Coming back to the issue at hand, the defendants illustrate that there is a distinction between dissolution and deregistration. Accordingly, regarding the dissolution of the Trust, the defendants contend that the plaintiff has no authority to dissolve or instigate the dissolution of the Trust. They argue that the authority to dissolve the Trust must be outlined in the deed of trust itself. Therefore, the plaintiff, in accordance with the deed of trust, lacks the authority to dissolve the Trust.

It is trite that a trust can be dissolved in various ways- in terms of the deed of trust itself, or in terms of common law, or by consent of the trustees or in terms of statute. See Mashoko v Mashoko/Chikosi Family Trust HH-12-11 and Honore’s South African Law of Trusts, 6th edition, Juta and Company (Pty) Ltd.

From the defendant's argument, they heavily rely on the plaintiff not having the authority to dissolve the Trust either from the Manual, the trustees or the deed of trust.

But, it is not as open and shut as that.  Honore’s South African Law of Trusts at p. 518, speaks to the position of the law that a trust can be dissolved under common law-

“…the court has powers both at common law and by statute to vary or terminate trusts in certain conditions. The common law powers come into play mainly when it is necessary for the court to vary the trust in order to avoid frustrating the trust object or prejudicing the beneficiaries.” [my emphasis]

In Mashoko v Mashoko/Chikosi Family Trust HH-12-11 at p2 the court reinforces that:

“The broad principle which our courts follow in deciding whether or not to dissolve a trust or remove a trustee was set down many years ago in the case of Lettersteldlt v Broers (1884) 9 AC 371 (ALL ER 1881-1885 at 882). In considering the issue, the court has to be satisfied that the continued trusteeship does not endanger the interests of the trust and its beneficiaries. See also Halsbury’s, Laws of England 3rd ed (38) at 94.” [my emphasis]

Consequently, under common law, the court can dissolve a trust if the trust is being run contrary to the interests and objectives of the trust. As such, under common law, no authority is required for one to dissolve the Trust. What is required to be proved are acts by the trustees which are contrary to the terms of the Trust. As earlier stated, absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim. In my view, the argument that the plaintiff cannot, in terms of the Manual and the trust deed and, in the absence of consent by the trustees, dissolve the Trust, cannot be an issue on the basis of which this court can grant absolution from the instance in circumstances where nothing has been placed before me to show that the plaintiff cannot motivate for the dissolution of the trust before a court of inherent jurisdiction and in terms of common law.

Reliance on hearsay evidence to challenge the governance of the first defendant

This issue relates directly to the third and fourth issues referred for trial namely, whether the schools have been run in accordance with the terms set out in the deed of trust and whether the schools have been run in accordance with the principles of good governance and proper administration. This claim is also in the alternative.

Evidence was adduced on behalf of the plaintiff showing that audit reports by the Trust did not account for most of the schools run by the Trust. For instance, the financial statements from 2013 to 2017 showed that only three schools, namely David Livingstone, Presbytery High School and Gloag High School, were accounted for, against nine schools which are being run by the Trust. In terms of clause 5.3. of Appendix 3 to deed of trust A, the core values of the first defendant are accountability and transparency amongst other values. If the audit statements show partial compliance with the values stated in the deed of trust, there is a case for arguing that the schools are not being run in accordance with the deed of trust and in accordance with the principles of good governance. In addition to the audit reports, evidence of the trustees deriving personal benefits from running the schools, improper procurement processes and disquiet from parents was also led.

I understand one of the defendants’ arguments to be that in leading the evidence relating to the disquiet by the parents, the plaintiff relied on hearsay evidence. Section 27 of the Civil Evidence Act provides that:

(1) Subject to this section evidence of a statement made by any person, whether orally or in writing or other-wise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statement, if direct oral evidence by that person of that fact would be admissible in those proceedings.

S 27 (3) of the same Act then provides as follows:

(3) If a statement referred to in subsection (1)—

(a) is not contained in a document, no evidence of the statement shall be admissible unless it is given by a person who saw, heard or otherwise perceived the statement being made;

(b) is contained in a document, no evidence of the statement shall be admissible except the document itself, or a copy of the document if such copy is admissible in terms of this Act or any other law.

In Hiltunen v Hiltunen 2008 (2) ZLR 296 H at p 301G-H Makarau JP (as she then was) had occasion to explain the import of s 27(1). She said-

“For first hand evidence 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 or she present and testifying.”

If I have understood the ratio in Hiltunen correctly, then the provisions of s 27(1) of the Civil Evidence Act allow for the admissibility of statements made by other persons where such statements would have been admissible had they been adduced as direct evidence by the makers of those statements. In casu, while the defendants accept that the plaintiff’s witnesses heard from third parties in the mould of parents of students learning at the plaintiff’s schools regarding the alleged mismanagement of the schools, they take the position that that evidence is not admissible because the witnesses did not have first-hand knowledge nor first-hand experience of the alleged mismanagement. The defendants then cite S v Mhunza HH 303/23 as authority for their argument.

I am unable to agree with this line of argument. Firstly, s27 (1) allows the deduction of first-hand hearsay evidence provided that the statements relied upon would have been admissible had they been led from the parents themselves. I did not hear the defendants to argue that had the direct evidence been led from the parents from whom the plaintiff’s witnesses heard the concerns, that evidence would have been inadmissible. Secondly, S v Mhunza cannot assist the defendants because that case is a criminal case. That the rules on the admissibility of hearsay evidence in criminal cases are more stringent is elementary. The same rules do not apply in civil cases.

It has been argued that there is no prohibition in the deed of trust that prohibits the trustees from doing business with the schools. That is the whole point in this matter. The issue for trial is whether the schools have been run in accordance with the terms set out in the deed of trust and in accordance with principles of good governance and proper administration. The fact that the trustees do not deny doing business with the schools puts into question whether or not their actions are in accordance with principles of good governance and proper administration of the schools. Surely, the defendants cannot be permitted to shelter behind the procedure of absolution from the instance to avoid getting into the witness box to answer questions which are peculiarly within their knowledge with regards that business and its impact on the administration of the schools, most of which are reported to be in a bad state.

CONCLUSION

Having made the above observations, I pause here briefly to repeat the words of Guvava JA in Muteswa Wholesalers (Pvt) Ltd & Ors v Delta Zimbabwe Ltd supra, that I should be extremely chary of granting absolution from the instance at this stage. I must assume that the evidence placed before me is true. In my view, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiff.

Before I conclude this matter, there is one other issue warranting my comment. It is the defendant’s argument in its heads that the plaintiff has not exhausted domestic remedies available to it. The defendants take issue with the procedure adopted by the plaintiff in challenging the registration process of the Trust. The defendants argue that in terms of s50 of the Deeds Registries Regulations, 2018, where a person is aggrieved by the decision of the Registrar in registering the deed of trust, they ought to appeal to the Chief Registrar, which the plaintiff has not done. This issue however, was not specifically pleaded by the defendants. It is trite that a party is bound by its own pleadings and cannot be permitted to raise a new case without a proper amendment being made. The court is bound by the pleadings of the parties and cannot entertain a case other than the specific matters in dispute which the parties themselves have raised in their pleadings. See generally Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449 (S). I believe the present point has not been properly taken. Even if the point had been properly taken, I would still have not found merit in that argument for the brief reasons I outline below.

The said s1(2) of the Deeds Registries Regulations provides

“(2) These regulations shall come into effect on a date to be fixed by the Minister by Statutory instrument”

In casu, the defendants have not referred me to the statutory instrument showing that the Deeds Registries Regulations, 2018 are now in force. In the absence of such, the Deeds Registries Regulations, 2018 are not yet in force and do not apply. The defendants’ contention is without merit as one cannot base an argument on a law that is not yet in force. I accordingly find that the defendants have not advanced a valid objection to the procedure followed by the plaintiff in approaching this court.

DISPOSITION

On the basis of the foregoing, I come to the conclusion that this would not be an appropriate case to decree absolution from the instance. I accordingly hold that there is no merit in this application in respect of both the main and alternative claims.

ORDER

In the result, it is ordered that:

The application for absolution for the instance be and is hereby refused.

The trial shall resume and proceed on the 22nd of September 2025 at 1000hrs or soon thereafter as the matter may be heard.

Costs shall be in the cause.

Mushure J: .................................................................

Tendai Biti Law Chambers, plaintiff’s legal practitioners

Webb Law & Barry, the first and fourth to eighth defendant’s legal practitioners