Glenwood Heavy Equipment (Pvt) Ltd v Hwange Colliery Company Limited and Others

In 2013, the first respondent (Hwange Colliery Company Ltd) purchased heavy earthmoving and mining equipment from the second respondent (Sany International Development Ltd) under a hire purchase agreement. The second respondent allegedly had not been fully paid. The applicant (Glenwood Heavy Equipment) filed an application to found jurisdiction against the second respondent, and on 9 June 2015 obtained a court order attaching the equipment in the custody of the first respondent ad confirmandam jurisdictionem pending prosecution of the applicant's claim under HC 2932/15. The applicant subsequently obtained a default judgment against the second respondent and execution commenced. An interpleader claim by the first respondent was dismissed in March 2016. On 13 October 2016, the applicant's agent, Bob Carlisle, allegedly discovered that the first respondent was using the attached equipment in breach of the attachment order. This information was communicated via email to the applicant's managing director, Brian Murphy, and was based on conversations Carlisle had with a loco operator and another person named Charles. The applicant launched an urgent application to interdict the first respondent from using the equipment and to compel the Sheriff to secure it.

• Whether hearsay evidence contained in the founding affidavit was admissible under section 27(1) of the Civil Evidence Act [Chapter 8:01]
• Whether the founding affidavit met the requirements for admission of hearsay evidence in urgent applications
• Whether the applicant had established a prima facie entitlement to the interdict sought

The application was dismissed with costs.

For hearsay evidence to be admissible in urgent applications under section 27(1) of the Civil Evidence Act [Chapter 8:01], the following requirements must be met: (1) the deponent must sufficiently disclose the source of the information or statement; (2) the deponent must state in the sworn statement that he believes the claims to be true; (3) the grounds for the belief in the truthfulness of the evidence must be disclosed; (4) the evidence must be about a statement made orally or in writing by an identified person; (5) the evidence must be such that it would have been admissible if the person responsible for it were present to give evidence; (6) an acceptable explanation must be provided for why direct evidence is not available; and (7) second-hand and third-hand hearsay evidence is inadmissible as it is incapable of verification. A founding affidavit that fails to meet these requirements is inadmissible and cannot sustain an application.

The court observed that whilst there may have been no real prejudice that the first respondent was likely to suffer if the relief was granted, the court is required to balance all the requirements for admission of hearsay evidence in applications. The court also noted uncertainty about what exact equipment the witness witnessed being used and for what purpose, and wondered whether the partially identified persons would confirm what the agent claimed they told him.

This case provides important guidance on the admissibility of hearsay evidence in urgent applications in Zimbabwean civil procedure. It reinforces the strict requirements that must be met for first-hand hearsay evidence to be admissible under section 27(1) of the Civil Evidence Act, and confirms that second-hand hearsay is inadmissible. The judgment clarifies that even in urgent applications where procedural flexibility exists, litigants must still satisfy fundamental evidentiary requirements including disclosure of sources, statement of belief in the truth of the information, grounds for such belief, and explanation for unavailability of direct evidence. It serves as a warning to practitioners to ensure founding affidavits are properly constructed with admissible evidence, particularly in urgent matters where time constraints might tempt shortcuts in evidence gathering.