Apostolic Faith Mission in Zimbabwe v Abraham Masamba and Amon Nyika Chinyemba and Odar Housing Development Consortium

The plaintiff, Apostolic Faith Mission in Zimbabwe, a common law universitas, was represented in court by Rev. Johannes Nehanda as its office bearer. During the trial, Rev. Johannes Nehanda sat in court while other witnesses for the plaintiff testified. When he was called to give evidence after being sworn in, counsel for the second defendant objected to the admissibility of his entire testimony on the grounds that he had heard the evidence of the other plaintiff's witnesses and observed how they were cross-examined. Counsel argued that this undermined the integrity of the trial and that as the representative of the universitas, Rev. Nehanda should have been the first to testify.

• Whether the evidence of a witness who was present in court while other witnesses testified is admissible
• Whether the presence of a witness in court during the testimony of other witnesses is a matter affecting admissibility or weight of evidence
• Whether the representative of a universitas must testify first in civil proceedings

The objection to the admissibility of Rev. Johannes Nehanda's testimony was overruled. Rev. Johannes Nehanda was permitted to testify for the plaintiff, with the issue of weight to be determined at the conclusion of the trial.

There is no legal principle in Zimbabwean law which precludes a witness from sitting in court while another witness is giving evidence. While there exists a rule of practice that witnesses should not be present in court during the testimony of other witnesses, a breach of this practice rule does not render the witness's evidence inadmissible. The presence of a witness in court during other testimony is a matter affecting the weight of the evidence, not its admissibility. The court retains discretion to assess the witness's credibility and demeanour and to determine what weight, if any, to attach to such evidence at the conclusion of the trial, including whether the witness was influenced by hearing other testimony.

The court noted that it would have been preferable for Rev. Johannes Nehanda, as the representative of the plaintiff universitas, to have been the first witness to testify. The court also observed that the questions of whether the evidence of a witness who was sitting in court while other witnesses testified 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. Similarly, whether the witness's evidence will be influenced by the witnesses who testified before him can only be properly evaluated at the conclusion of all evidence.

This judgment clarifies an important evidentiary principle in Zimbabwean civil procedure regarding the admissibility of testimony from witnesses who have been present during other witnesses' evidence. It confirms that the presence of a witness in court during other testimony goes to weight rather than admissibility, aligning Zimbabwean law with regional jurisprudence from Namibia, Botswana, and Zambia. The case is significant for establishing that breach of the practice rule requiring witness exclusion does not create a ground for excluding evidence, preserving the court's discretion to assess credibility and determine what weight to attach to such evidence at the conclusion of trial.