Joseph Marshal Stuart v National Railways of Zimbabwe

This was an employment-related civil matter where the plaintiff sued the defendant, National Railways of Zimbabwe. During the presentation of his case, the plaintiff indicated he wanted to call a witness, Mr. G. Ndlovu, the Personnel Manager/Human Resources Manager of the defendant. The defendant objected, stating that Ndlovu was their witness and that they intended to call him to rebut the plaintiff's evidence. The plaintiff closed his case on the understanding that the defendant would call Mr. Ndlovu, with a clear indication that if the defendant did not call him, the plaintiff would apply to re-open his case. The defendant subsequently closed its case without calling Mr. Ndlovu. The plaintiff's claim related to prospective damages and what he lost or stood to lose in terms of employment benefits, requiring evidence about what his colleagues were being paid to establish what he would have been paid had his employment continued.

• Whether the court should grant leave to the plaintiff to re-open his case to adduce further evidence after the close of the defendant's case
• Whether the evidence was intentionally withheld out of its proper order
• Whether the plaintiff provided a satisfactory explanation for the failure to lead the evidence timeously
• Whether allowing the evidence would prejudice the defendant
• Whether the proposed evidence is sufficiently material to justify re-opening the case

The court granted leave to the plaintiff to re-open his case and adduce the evidence of Mr. G. Ndlovu.

When considering an application to re-open a case to adduce further evidence under Order 19 Rule 437(5) of the High Court Rules, 1971, the court must exercise its discretion judicially by considering: (1) the explanation for failure to lead the evidence timeously; (2) whether there is danger of prejudice to the other party; and (3) whether there is sufficient materiality of the evidence. Evidence is not 'intentionally withheld' where a party refrains from calling a witness on the reasonable understanding that the opposing party will call that witness, and where the party has clearly indicated it will apply to re-open if the witness is not called. A party will not be prejudiced by the calling of a witness whom they themselves identified as their witness but subsequently chose not to call, as they retain the right to cross-examine. The materiality of evidence can be inferred from the opposing party's previous strenuous efforts to prevent the other party from calling the witness.

The court observed that the proceedings had degenerated into 'a game of wits which a trial should not be,' implicitly criticizing the defendant's tactical maneuvering in claiming the witness as their own to prevent the plaintiff from calling him, only to abandon the witness when it came time to present their case. The court also noted that 'there is no rule that gives one party monopoly of witnesses over the other' and that if a witness is 'a dispassionate witness of the truth as he should be, then he must be available to be called even by the plaintiff.' This reinforces the principle that witnesses belong to neither party but are witnesses to the truth. The court's description of this type of application as 'rare in practice' provides context that such applications, while permissible, are not commonly granted.

This case provides important guidance on the exercise of judicial discretion under Order 19 Rule 437(5) of the High Court Rules, 1971 regarding the re-opening of a case to adduce further evidence. It clarifies that where a party fails to call a witness due to the opposing party's representation that they would call that witness, and the opposing party then abandons the witness, this constitutes a justifiable explanation for not calling the witness timeously. The case also reinforces that parties cannot strategically claim witnesses as 'their witnesses' to prevent the other party from calling them, only to abandon those witnesses later. It demonstrates the court's commitment to ensuring fairness and preventing gamesmanship in civil proceedings.