Percy Nyachowe v Joyce Kuchera and Others

The parties were shareholders and directors in the fourth defendant (Vevhu Resources Private Limited) and were involved in a dispute over ownership and control of that entity. During trial, the plaintiff's counsel sought to produce a copy of an email communication dated 31 May 2017 from Mr Misheck Muza of Muza Consultancy to the plaintiff, his late brother, and others. The email concerned alleged investigations at the Companies Registry regarding the constitutive status of the fourth defendant. The defendants objected to the admission of this email on two grounds: (a) that the document was unauthenticated and did not comply with section 13 of the Civil Evidence Act dealing with computer-generated documents; and (b) that it constituted inadmissible hearsay evidence under section 27 of the same Act. The defendants relied on the Supreme Court authority of Japajapa v The State SC 41-24 regarding authentication of electronic evidence.

• Whether an email communication constitutes a computer-generated document requiring authentication under section 13 of the Civil Evidence Act
• Whether the email communication constituted inadmissible hearsay evidence under section 27 of the Civil Evidence Act
• What procedural steps must be followed when seeking to admit electronic evidence during trial
• Whether the court should allow a party to remedy deficiencies in leading evidence when an objection is raised
• The extent to which electronic/computer-generated documents require authentication before admission into evidence

The objection was dismissed with costs in the cause. The ruling did not automatically grant admission of the email communication but accorded the plaintiff an opportunity to resort to the procedural options available under the Civil Evidence Act in seeking production of his document in evidence.

The binding legal principles established are: (1) Computer-generated documents, including emails, are subject to the requirements of section 13 of the Civil Evidence Act, but these requirements should be applied pragmatically given that most documentary evidence is now computer-generated; (2) A party's failure to properly traverse the prerequisites for admitting computer-generated documents does not automatically result in exclusion if the deficiency can be remedied through procedures available under the Civil Evidence Act; (3) Courts have discretion under section 50 of the Civil Evidence Act to examine evidence and hear submissions to determine admissibility, even where initial procedural deficiencies exist; (4) Litigation is a serious legal process regulated by statute, not a 'game of wits', and courts should adopt a substantive rather than overly technical approach to evidential objections where justice requires; (5) Electronic evidence requires authentication, but concerns about authenticity can be addressed through various pre-admission facilities in the Civil Evidence Act including section 19, rather than automatic exclusion.

The judge made several important non-binding observations: (1) The conduct of trial and leading of evidence is a critical aspect of the right to a fair trial enshrined in section 86(3)(e) of the Constitution; (2) Almost the entirety of documentary evidence placed before courts is now computer-generated, which demands pragmatic attention to section 13 requirements; (3) The apprehensions about authenticity that arose in the criminal case of Japajapa v The State (concerning potentially edited video evidence) do not necessarily arise with the same force in relation to email communications in civil proceedings; (4) The court referred approvingly to the approach taken in the South African case of Jepson N.O v Lezar regarding email evidence, where the witness explained the email had remained in original form on her laptop and offered it for inspection; (5) Evidence may need to be subjected to preliminary examination before it is branded as hearsay, and the source of hearsay statements must be properly disclosed; (6) Section 14 of the Civil Evidence Act recognizes the evidentiary characteristics of commercial disputes involving business records; (7) The age-old principle that the purpose of litigation is to resolve disputes and prevent societal disharmony should inform procedural decisions.

This case provides important guidance on the admission of electronic evidence, particularly email communications, in Zimbabwean civil proceedings. It clarifies the application of sections 13, 14, 19, 27 and 50 of the Civil Evidence Act to computer-generated documents and demonstrates a pragmatic, substantive approach to evidential objections. The judgment emphasizes that litigation should focus on substantive justice rather than procedural technicalities, and that courts have discretion to allow parties to remedy deficiencies in leading evidence. It is particularly significant for commercial litigation where electronic communications form a substantial part of business records. The judgment also provides practical guidance on how to properly lead electronic evidence and the procedural steps required to authenticate computer-generated documents.