Presbytery of Zimbabwe of the Uniting Presbyterian Church in Southern Africa v The Presbytery of Zimbabwe Education Trust & 8 Others

The plaintiff, a corporate body constituted by its Manual of Faith and Order, sued the first defendant (a Trust) and eight other defendants. The plaintiff claimed that two deeds of trust (Deed A and Deed B) were registered for the same Trust (MA25/2010) on 9 March 2010, both purporting to create the Presbytery of Zimbabwe Education Trust. Deed A listed the third defendant (Reverend Sayimani) as founder, while Deed B listed the second defendant (Reverend Neshangwe) as founder. The plaintiff alleged the deeds were nullities due to procedural irregularities: neither Moderator had authority to establish the Trust, trustees did not appear before a notary public as claimed, two founders could not create a single Trust via two different deeds, the Trust lacked beneficiaries, and there were date discrepancies. Alternatively, the plaintiff sought dissolution of the Trust based on trustees' failure to account for school operations, provide audited statements, and manage schools competently. The second and third defendants did not enter appearance to defend. After the plaintiff closed its case, the first and fourth to eighth defendants applied for absolution from the instance on four grounds: (1) the first two witnesses (the second and third defendants) were barred from testifying; (2) the plaintiff relied on inadmissible copy documents; (3) the plaintiff lacked authority to dissolve the Trust; and (4) the plaintiff relied on hearsay evidence regarding school governance.

• Whether absolution from the instance should be granted at the close of the plaintiff's case
• Whether defendants who failed to enter appearance to defend are barred from testifying as witnesses for the plaintiff
• Whether copies of trust deeds are admissible in the absence of original documents
• Whether a plaintiff requires express authority from a trust deed to seek dissolution of a trust through court proceedings
• Whether first-hand hearsay evidence regarding complaints from parents is admissible in civil proceedings

1. The application for absolution from the instance is refused. 2. The trial shall resume and proceed on 22 September 2025 at 1000hrs or soon thereafter. 3. Costs shall be in the cause.

The binding legal principles established are: (1) A party who fails to enter appearance to defend in civil proceedings is not barred from testifying as a witness for another party; the bar under Rule 39(4) applies to appearing as a party, not as a witness. (2) At the close of the plaintiff's case, absolution from the instance should only be granted if there is insufficient evidence upon which a court, directing its mind reasonably, could or might find for the plaintiff (the "could or might" test from United Air Charters v Jarman). (3) A court has inherent common law jurisdiction to dissolve a trust when necessary to protect the trust's objectives or beneficiaries, and no express authority in the trust deed or constitution is required for a party to seek such dissolution through court proceedings. (4) Copy documents are admissible under section 11 of the Civil Evidence Act where the court is satisfied there is good and sufficient cause why originals cannot reasonably or practicably be produced. (5) First-hand hearsay evidence is admissible in civil proceedings under section 27(1) of the Civil Evidence Act if direct oral evidence from the statement-maker would have been admissible.

The court made several non-binding observations: (1) Courts should be extremely chary of granting absolution from the instance at the close of the plaintiff's case and should assume the evidence is true absent very special considerations such as inherent unacceptability. (2) A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance, particularly where the defense is peculiarly within the defendant's knowledge. (3) Where there is doubt as to what a reasonable court might do, a judicial officer should always lean on the side of allowing the case to proceed. (4) Regarding the alternative claim for dissolution, the court noted that trustees' partial compliance with audit requirements (accounting for only 3 of 9 schools) and allegations of personal benefits and improper procurement prima facie raised questions about whether schools were run in accordance with the deed of trust and principles of good governance. (5) The court commented that the defendants' reliance on the Deeds Registries Regulations, 2018 regarding exhaustion of domestic remedies was misplaced as those regulations had not been brought into force by statutory instrument. (6) The court noted that parties are bound by their pleadings and cannot raise new cases without proper amendment.

This judgment is significant for South African and Zimbabwean civil procedure and trust law for several reasons: (1) It clarifies that a party barred for failure to enter appearance to defend remains a competent witness and may testify for the opposing party, distinguishing between appearing as a party and appearing as a witness. (2) It provides guidance on the admissibility of copy documents under section 11 of the Civil Evidence Act where originals cannot reasonably be produced. (3) It affirms the court's inherent common law jurisdiction to dissolve trusts to protect trust objectives and beneficiaries, independent of express authority in trust deeds or constitutions. (4) It applies the established test for absolution from the instance and emphasizes that courts should be "extremely chary" of granting absolution at the close of the plaintiff's case, particularly where matters are peculiarly within the defendant's knowledge. (5) It clarifies the admissibility of first-hand hearsay evidence in civil proceedings under section 27 of the Civil Evidence Act, distinguishing the more stringent criminal law standards.