Tona Hove v S K Chanakira

Mr Chanakira (respondent) claimed that by arrangement with Mr Hove (appellant), he had paid the Customs duty of $57,800 on a vehicle Mr Hove had imported, paid storage charges of $1,060, and then, on the understanding that he had bought the vehicle from Mr Hove, paid for certain necessary repairs (principally replacing the battery and fuel pump). When Mr Hove resiled from the sale, Mr Chanakira sued to recover his money. The High Court granted judgment in favor of Mr Chanakira in the sum of $67,736.17 with interest and costs. Although Mr Hove denied the claim, there was a letter on record from Mr Hove's former lawyers admitting that he owed Mr Chanakira $57,800 (the Customs duty) and the storage charges ($1,060).

• Whether a letter marked 'without prejudice' from the appellant's former lawyers could be admitted into evidence
• Whether the trial court was correct in accepting the respondent's account of the transaction and the debt owed
• Whether the appeal had any reasonable prospects of success

The appeal was dismissed with costs. The High Court judgment in favor of the respondent in the sum of $67,736.17 with interest and costs was upheld.

The marking of a letter as 'without prejudice' does not automatically render it inadmissible in evidence. Where a letter marked 'without prejudice' is not part of negotiations between parties but is merely a reply to a question such as 'What is your defence?', it may be admitted into evidence. Where a party's credibility is significantly undermined by admissions made by their own legal representatives, the court is entitled to prefer the opposing party's account of events.

McNally JA's comment that 'this was an appeal that should not have been pursued' serves as a cautionary observation to legal practitioners about the importance of properly assessing the merits of an appeal before proceeding. The characterization of the appeal as 'completely hopeless' suggests that sanctions or adverse comments may follow where parties pursue unmeritorious appeals.

This case is significant for clarifying the admissibility of 'without prejudice' correspondence in Zimbabwean law. It establishes that the mere marking of a letter as 'without prejudice' does not automatically render it inadmissible, particularly where the letter is not part of settlement negotiations but is merely responding to a request for a defense. The case also demonstrates the court's willingness to dismiss hopeless appeals summarily and to impose costs against parties who pursue appeals without merit.