Tazvitya Arthar Mutandwa v Silver Zhuwake and Others

The plaintiff sued the first to fifth defendants seeking vacant possession of stand number 381 Goodhope Township. The first defendant claimed occupation on the basis that he inherited the property from his late father Lovemore Zhuwake. The fifth defendant was the executor in the estate of the late Lovemore Zhuwake, while the second defendant was the executrix in the estate of the late Johana Fransisca Logan, the previous owner of the disputed property. The second defendant did not enter an appearance to defend and was barred in terms of Rule 50 of the High Court Rules. During trial, the plaintiff sought to call the second defendant as a witness, which both the first and fifth defendants objected to on the grounds that she was barred and could not be heard in terms of Rule 83 of the High Court Rules.

• Whether a party who has been barred from defending in terms of Rule 50 of the High Court Rules can be called as a witness by another party in the same proceedings
• The proper interpretation and application of Rule 83 of the High Court Rules regarding the effects of a bar on a party's participation in proceedings
• Whether a barred party who is cited as a statutory functionary (executrix) can testify as a witness despite being barred from being heard as a party

The court ordered that the plaintiff be allowed to call the second defendant as a witness in the proceedings despite her being barred as a party.

A party who has been barred from defending under Rule 50 of the High Court Rules is not prohibited from giving evidence as a witness when called by another party to the proceedings. Rule 83 only bars a barred party from being heard as a party and from filing pleadings or documents, but does not expressly prohibit such person from testifying as a witness. The capacity of being a party to proceedings is separate and distinct from the capacity of being a witness. What is not expressly prohibited by law is permissible at law.

The court observed that the second defendant, as an executrix, remained a party to the proceedings by virtue of her statutory obligation to represent the estate despite being barred. The court also noted that had the law maker intended to bar a barred party from giving evidence as a witness, it would have undoubtedly expressly stated so in the rules. The court emphasized the principle that what is not prohibited by law is permissible at law as a general principle of legal interpretation.

This case is significant in Zimbabwean civil procedure law as it clarifies the scope and limits of the effects of a bar under Rule 83 of the High Court Rules. It establishes that being barred from participating as a party to proceedings does not automatically disqualify that person from testifying as a witness when called by another party. The judgment provides important guidance on the distinction between acting in one's capacity as a party versus acting as a witness, particularly in circumstances where the barred party holds a statutory position such as executor of an estate.