Dingaani Thomas Mbondiya v Christon Chiridza

The plaintiff sued the defendant for adultery damages, alleging that the defendant committed adultery with Nyashadzashe Munyaradzi Maphosa (Maphosa), to whom the plaintiff is married under the Marriage Act [Chapter 5:11]. After the plaintiff closed his case, having testified and called three witnesses, the defendant filed a supplementary summary of evidence on 4 September 2025 (the day set for continuation of trial) indicating his intention to call Maphosa as his witness. The plaintiff's counsel raised two objections: (1) that the supplementary summary of evidence should be expunged from the record as it was filed late without leave of court and not in accordance with Rule 49(6) and (7) of the High Court Rules, 2021; and (2) that Maphosa should be barred from testifying as a witness for the defendant.

• Whether the defendant's supplementary summary of evidence filed late and without leave of court should be expunged from the record
• Whether a proposed witness (the plaintiff's spouse who is central to the adultery claim) should be barred from testifying for the defendant
• Whether the court has power to bar a litigant from calling a witness
• The competence and compellability of a spouse as a witness in civil proceedings under section 6(2) of the Civil Evidence Act [Chapter 8:01]
• Whether issues of prejudice, 'implanted knowledge' and weight of evidence can be determined before a witness testifies

Both objections were overruled. The court ordered that: (a) The objection against the defendant's supplementary summary of evidence filed on 4 September 2025 and that it be expunged from the record is overruled; (b) The objection against the testimony of Nyashadzashe Munyaradzi Maphosa from testifying as a defendant's witness is overruled.

The binding principles established are: (1) A summary of evidence is not a document intended as a documentary exhibit but a procedural tool to inform the opposing party of proposed evidence; rules of documentary admissibility do not apply to it. (2) The court has discretion under Rule 7 of the High Court Rules, 2021 to condone late filing of procedural documents in the interest of justice, particularly where such filing enables proper preparation for trial without causing irremediable prejudice. (3) Courts have no power to bar a litigant from calling a witness, as doing so would constitute a serious infringement of the right to a fair hearing. (4) Under section 6(2) of the Civil Evidence Act [Chapter 8:01], a spouse is a competent and compellable witness in civil proceedings. (5) Issues relating to the weight, credibility, prejudicial effect, or quality of knowledge of a witness's testimony are matters to be assessed and determined at the end of trial based on actual evidence, not in abstract before the witness testifies. (6) The interest of justice may require procedural rules to recede to ensure substantive fairness and the right to present one's case.

The court made several obiter observations: (1) It was premature for plaintiff's counsel to raise the objections during the plaintiff's case, and counsel was rebuked for attempting to argue against the court's directive - once a court makes a directive or order, it is impermissible for counsel to continue argument on the same issue. (2) The court noted that section 6(3) of the Civil Evidence Act (spousal privilege regarding communications during marriage) would have to be dealt with as it arises during the witness's testimony, not before. (3) Similarly, any application by the plaintiff to re-open his case would have to be dealt with on its merits at the time it arises. (4) The court observed that the objections raised by plaintiff's counsel were matters of weight, not admissibility. (5) The court cited with approval cases from Namibia, Botswana and Zambia supporting the principle that courts cannot bar witnesses from testifying.

This case provides important guidance on Zimbabwean civil procedure and evidence law, particularly: (1) the court's discretion to condone late filing of procedural documents in the interest of justice, even where rules have not been strictly followed; (2) the distinction between a summary of evidence (a procedural tool) and documentary evidence (subject to rules of admissibility); (3) the principle that courts have no general power to bar a witness from testifying, as this would infringe the right to a fair hearing; (4) the application of section 6(2) of the Civil Evidence Act making spouses competent and compellable witnesses in civil proceedings; and (5) that issues of weight, credibility, prejudice, and quality of knowledge (original vs implanted) are matters to be assessed at the end of trial based on actual testimony, not in abstract before a witness testifies. The judgment reinforces that procedural fairness and the right to present one's case are paramount considerations.