Nyachowe v Kuchera and Others (418 of 2025) [2025] ZWHHC 418 (14 July 2025)

1 HH 418-25 HCHC 242/24 PERCY NYACHOWE versus JOYCE KUCHERA and INNOCENT TITUS MUREFU and ANTONY and VEVHU RESOURCES PRIVATE LIMITED HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 6 June & 14 July 2025 Interlocutory application T. Kabuya for plaintiff A. Chimhofu with T. Rusinahama for 1st, 2nd, 3rd and 4th defendants CHILIMBE J BACKGROUND [1] I disallowed defendant`s objection to the production of a document during trial and gave reasons ex tempore. I furnish, at defendant`s request, the written reasons. [2] The parties in the main matter are shareholders and directors in fourth defendant. They are currently involved in a dispute over ownership and control of that entity. THE OBJECTION [3] Mr Chimhofu for the defendants, objected to the production of a copy of an email communication which Mr Kabuya applied to produce in evidence through plaintiff Mr Percy Nyachowe. The email in question, at record page 40, was dated 31 May 2017and written by a HH 418-25 HCHC 242/24 Mr Misheck Muza of Muza Consultancy to the plaintiff Mr Percy Nyachowe, his (late) brother Cletus Nyachowe, a T. Murefu and one Calvin Fambisai. [4] The email was referenced “Christine Madzeka Company Registration Allegations-Vantage Holdings, Vevhu Resources”. The subject matter related to alleged investigations by Mr. Muza at the Companies Registry to ascertain the constitutive status of fourth respondent. [5] Mr Chimhofu objected to the admission of the document on 2 grounds; - (a) that the document was unauthenticated and (b) that it constituted hearsay evidence. He referred- on the first ground- to the requirements set out in s 13 of the Civil Evidence Act [Chapter 8:01]. He also relied, on the second ground, on s 27 of the same Act. AUTHENTICATION OF COMPUTER-GENERATED DOCUMENTS. [6] As discussed in greater detail below, s 13 of the Civil Evidence Act governs the admissibility of “documents produced by computers”, a term whose import was assumed rather than defined by counsel. [7] Section 27 deals with the treatment during civil trials, of first-hand hearsay evidence. Mr Chimhofu also cited the Supreme Court authority of Japajapa v The State SC 41-24 where MAKONI JA held as follows on admissibility of electronic evidence; - “[54] What is coming out of the above authorities is that care must be taken in analysing and assessing the admissibility and weight to be attached to electronic evidence. Such evidence must be treated as documentary evidence and not as real evidence. It should not be considered admissible by its mere production. Its origin and authenticity have to be established first. The evidence has to be corroborated and confirmed by other witnesses as electronic evidence is easily susceptible to manipulation. Focus should not just be on the representation of the electronic evidence but rather the degree of accuracy of its representation. The court carrying out the exercise must bear in mind the requisite standard of proof in the matter before it.” [underlined and bolded for emphasis] HH 418-25 HCHC 242/24 [8] Mr Chimhofu argued that the email in question qualified as electronic evidence. In that respect, the requirement of authentication discussed in Japajapa v S applied with equal force to the present civil proceedings. The Supreme Court referred, in that decision, to the South African Electronic Communications and Transactions Act (No. 25 of 2002) which dealt with among other matters, email correspondence. [Underlined and bolded for emphasis] [9] Counsel cited further, J de Jager in Principles of Evidence 4th Edition Chapter 21 at p443. Counsel concluded thus; - “Without, authentication, without proving the source of the communication and how the communication was stored since the alleged date of generation in 2017, the document cannot be regarded as a true reflection of its original format and content. Its accuracy is questioned and cannot be safely relied upon. The document fails the test of section 13 of the Civil Evidence Act [Chapter 8:01]”. [10] Mr Chimhofu submitted further, that email communication had to be treated cautiously. He referred to the South African High Court (Free State) decision of Jepson N. O v Lezar [2009] ZAFSHC 49. I am indebted to counsel for that citation. The authority essentially addresses the key issues arising from this objection. [11] RAMPAI J held as follows at [35]; - “The second aspect of Dr Lees’ hearsay concerned email communications she received from her father. Her testimony was that after her father had installed email, she regularly communicated with him by email. In particular she referred to an email which, as she asserted, she received from her father dated Thursday the 26 October 2007 at 10:25am. The email purported to have come from Don Thomson and to have been sent to Debbie Lees. The relevant portion thereof reads: ‘I have sent Neville R300 000,00 to be used on paying off his mortgage bond and he has signed an agreement that he pays me prime less 4% every month. That way he HH 418-25 HCHC 242/24 saves a couple of kicks and I get about the same as I would if the money was in the bank.’ She explained that ever since she received this email, it has remained in its original form on her laptop which she proffered for inspection then and there to the defendant’s counsel. The offer was not taken up. Obviously, this written communication was also hearsay because the author of the email did not forms testify.” [Underlined for emphasis] HEARSAY EVIDENCE [12] On that basis, Mr Chimhofu contended that the email evidence which Mr Kabuya intended to produced amounted to inadmissible hearsay evidence. In response, Mr Kabuya acknowledged the requirements placed upon a party wishing to produce a computer-generated document. [13] Counsel also sought to persuade the court to accept his view- proffered from the bar- that the necessary requirements had been fulfilled. And that in any event, the Commercial Court Rules favoured the admission of such evidence as part of the speedy and robust resolution of disputes. [14] With respect, counsel did not proffer cogent argument against Mr Chimhofu` s firm contentions against admissibility of the email communication. This aspect, as shall shortly be demonstrated, forms the germ seed of the evidentially stumbling block that I now must resolve. THE LAW [15] I turn to the provisions cited by Mr Chimhofu commencing with s 13 of the Civil Evidence Act which I set out in full below; - 13 Documents produced by computers HH 418-25 HCHC 242/24 (1) Subject to this section, a document produced by a computer shall be admissible as evidence of any fact stated therein if direct oral evidence of that fact would be admissible. (2) A document mentioned in subsection (1) shall be admissible if the party producing it proves that— (a) the document was produced by the computer during a period when the computer was used regularly to store or process information for the purposes of any activity regularly carried on over that period; and (b) over that period information of the kind contained in the document, or of the kind from which the information in the document is derived, was regularly supplied to the computer in the ordinary course of that activity; and (c) the information contained in the relevant part of the document reproduces or is derived from information supplied to the computer in the ordinary course of that activity; and (d) throughout the material part of that period the computer was operating properly or, if it was not, its failure to do so would not have affected the production of the document or the accuracy of its contents. (3) Where over a period the function of storing or processing information for the purposes of any activity was regularly performed by— (a) two or more computers; or (b) one or more combinations of computers; whether operating continuously or in succession over the period, all the computers shall be treated for the purposes of this section as constituting a single computer. (4) For the purpose of showing that a document is admissible under this section, a document which purports to be an affidavit and which— (a) identifies the document; and (b) describes the manner in which the document was produced, giving sufficient information to show that it was produced by a computer in the circumstances described in subsection (2); and (c) purports to be made by a person responsible for operating the computer by which or managing the activity for which the document was produced; HH 418-25 HCHC 242/24 shall be admissible on its production by any person as prima facie proof of the facts stated therein: Provided that it shall be sufficient for the matters referred to in paragraph (b) to be stated to the best of the deponent’s knowledge and belief. (5) For the purposes of this section— (a) information shall be regarded as having been supplied to a computer if it is supplied to the computer in any form, whether on a disc, tape, card or otherwise, that may be received by the computer, and whether it is supplied directly or, with or without human intervention, by means of equipment the operation of which is compatible with the operation of the computer; (b) where information is supplied in the course of any activity with a view to its being stored or processed for the purpose of that activity by a computer that is not operated in the course of that activity, the information shall be regarded as having been supplied to the computer in the course of that activity; (c) a document shall be regarded as having been produced by a computer whether it was produced by it directly or, with or without human intervention, by means of equipment the operation of which is compatible with the operation of the computer. (6) A document which is admissible under this section may be produced in evidence by any person who for the time being has custody of the document or is responsible for managing the activity for which the document was produced [16] A reading of the above provisions invites a number of conclusions. But importantly in my view- this requirement ought not, under normal circumstances, detain the court and litigants appearing before it. Can one not conclude that almost the entirety of documentary evidence placed before the courts is computer generated? So to what extent must a party belabour the point prior to producing a document in court? The mishap which afflicted the email communication under discussion emanated from the manner in which Mr Kabuya sought to usher it in. [17] I will comment briefly as reminder to legal practitioners that the conduct of trial is a critical aspect in the delivery of the right to a fair trial enshrined in s 86 (3) (e) of the Constitution. In our adversarial system, civil trials are decided on the basis of discharge of the burden of proof. In that regard, the parties and their respective counsel must navigate the adjectival matrice of rules, traditions and protocols governing the conduct of trial. HH 418-25 HCHC 242/24 [18] A window from Herbstein and Van Winsen partially introduces this procedural and evidentiary vista in the following terms1; - “…He concluded with a statement in Wigmore on Evidence, Vol 9 para 2486 that all rules dealing with the subject of the burden of proof rest “for their ultimate basis upon broad and undefined reasons of experience and fairness” [19] On the same point, I emphasise that the conduct of trial and leading of evidence is not so much a “game of wits”2 in which parties are at large to deploy all manner of ruse de gurre. It is a serious legal process regulated, not just by the rules of court, but by Acts of Parliament. In this instance; - the Civil Evidence Act. The same Act takes time to variously guide parties on how to navigate the self-same evidentiary and procedural maze. Section 19 of the Civil Evidence Act, for instance, provides thus; - 19 Refreshing memory from documents (1) Subject to this section, any witness, whilst giving evidence, may refresh his memory from any Document, where it is proved that the document was made by him or was made on his instructions or was first read by him, at a time when his recollection of the facts set out in the document could reasonably be supposed to be fresh in his mind. (2) A document mentioned in subsection (1) shall not be referred to by a witness unless the witness is able to produce the document in the court. (3) Where a witness has refreshed his memory from a document in terms of subsection (1) any opposing party may inspect the document and may cross-examine the witness upon it, but that party shall not be required to produce the document in evidence unless he has cross-examined the witness on parts of the document to which the witness did not refer when refreshing his memory. (4) Where a document mentioned in subsection (1) has been produced in evidence, any statement by the witness concerned which is contained in that document shall be 1 At page 896 of The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa-5 th Edition, Juta. 2 An expression used in a number of decisions in this jurisdiction including Matthews v Craster International (Pvt) Ltd HH 707-15; Jivan v Salman Et Sie SA & Anor HH 242-22; Pilo Kauma & Anor v Pinkie Dambudzo Vambe & Anor HH 883-22; and Blackgate Investments (Pvt) Ltd v Minister of Mines & 2 Ors HH 586-23. HH 418-25 HCHC 242/24 admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible. [20] The above provision betrays Mr Kabuya`s approach to leading his witness and thus production of the email communication. Counsel proceeded to apply for admission of the document after the briefest of exchanges with his witness. He did not traverse the prerequisites of s 13 set out above. In Jepson v Lezar the following approach was taken in leading evidence relating to the email communication before that court; - “[35] …………She explained that ever since she received this email, it has remained in its original form on her laptop which she proffered for inspection then and there to the defendant’s counsel. The offer was not taken up. Obviously, this written communication was also hearsay because the author of the email did not testify.” APPLYING THE LAW TO THE FACTS [21] I asked Mr Chimhofu if his colleague could be granted a reprieve so as to lead the witness properly and address the issues set out in s 13 of the Civil Evidence Act. Counsel`s response was that such opportunity was lost the minute defendant raised the objection. I am unable to agree and the following are my reasons; - [22] Firstly, as noted above, litigation is not a duel of the perfidious. In the same vein, computer generated documentation forms the bulk of documents placed before the courts. This reality demands that attention be paid, from the most pragmatic of perspectives, to the requirements of s 13. [23] Secondly, Mr Chimhofu was earnestly persuaded by the dictum in Japajapa v S on authentication of electronic evidence. That authority was concerned with hotly contested video evidence whose authenticity lay at the heart of not just its admissibility but probative value. Was the video clip edited or even manufactured? HH 418-25 HCHC 242/24 [24] Those apprehensions do not rise in the matter before the court. Indeed, Mr Chimhofu did advert to such possibility. But I believe any concerns around the email evidence`s authenticity could only be properly addressed under the various pre-admission facilities available in the Civil Evidence Act including s 19 to ventilate evidence before its admission or rejection. [25] Insofar as the decision of Jepson N. O v Lezar is concerned, I need not, for purposes of disposing of counsel’s argument, observe that the email evidence deemed hearsay was accepted by the court which held as follows at [45]; - “[46] The defendant like the plaintiff, also relied on email communications he had with the late D K Thomson. There is no sound reason why emails from one and the same author 25 should be allowed as admissible evidence in favour of the one party but disallowed as inadmissible evidence in respect of the other. The defendant’s objection is clearly unprincipled. It is a sword with double edges. If emails of the late D K Thomson to his daughter Dr Lees must be excluded on the grounds that the original declarent who allegedly authored such emails did not testify – so must the emails from the same declarent, the late D K Thomson, to the defendant also be excluded on precisely the same ground. As they say, you cannot eat your cake and still have it. Therefore, I am inclined to rule in favour of the admission of emails from the late DK Thomson to his daughter, Dr Lees, as admissible evidence. Similarly, the emails between the late DK Thomson and his brother-in-law are also finally allowed as admissible evidence.” [Underlined for emphasis] [26] Thirdly, the authorities [ including Jepson N. O v Lezar] are brimming with guidance on how to identify, ascertain, brand, process, reject or accept hearsay evidence. In Reserve Bank of Zimbabwe & Anor v Tiran Transport (Pvt) Ltd & Anor 2019 (3) ZLR 642 (S) GWAUNZA DCJ stated as follows at 646 F -H to 647 A; - “In Hiltumen v Hiltumen 2008 (2) ZLR 296 (H), it was held that for first hand hearsay evidence to be admissible under the Act, the person who made the statement must be identified. This is what the court had to say: HH 418-25 HCHC 242/24 “For first hand evidence to be admissible under the Act, the evidence must be about a statement made orally or in writing by another person. The person who made the statement must be identified and it must also appear from the nature of the evidence that the contents of the statement would have been admissible from the mouth of that person were he or she present and testifying.” The same consideration appears to have weighed with the court in Church of the Province of Central Africa v Jakazi & Others HH70/10 where UCHENA J (as he then was), in useful obiter, expressed the view that since the source of the statement tendered before him was not properly disclosed, the statement would have been inadmissible on that basis. This is what the court had to say: “In this case, the source of the statement is not properly disclosed. He is merely referred to as a member of the public. This means the evidence of the caller’s statement is inadmissible hearsay. Such hearsay evidence is only admissible if the source of the information is disclosed.” [27] Fourthly, it follows therefore that evidence may need to be subjected to a preliminary examination before it is branded as hearsay. The Civil Evidence Act itself states as follows in s 27 relied upon by Mr Chimhofu; - 27 First-hand hearsay evidence (1) Subject to this section evidence of a statement made by any person, whether orally or in writing or other-wise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statement, if direct oral evidence by that person of that fact would be admissible in those proceedings. (2) Evidence of a statement referred to in subsection (1) shall be admissible even where the person who made the statement is called as a witness in the proceedings concerned. (3) If a statement referred to in subsection (1)— (a) is not contained in a document, no evidence of the statement shall be admissible unless it is given by a person who saw, heard or otherwise perceived the statement being made; (b) is contained in a document, no evidence of the statement shall be admissible except the document itself, or a copy of the document if such copy is admissible in terms of this Act or any other law. HH 418-25 HCHC 242/24 (4) In estimating the weight, if any, to be given to evidence of a statement that has been admitted in terms of subsection (1), the court shall have regard to all the circumstances affecting its accuracy or otherwise and, in particular, to— (a) whether or not the statement was made at a time when the facts contained in it were or may reasonably be supposed to have been fresh in the mind of the person who made the statement; and (b) whether or not the person who made the statement had any incentive, or might have been affected by the circumstances, to conceal or misrepresent any fact. (5) This section shall not be construed as limiting any provision of this Act or any other law providing for the admissibility of statements made by persons who are not called as witnesses to testify to such statements. [28] Fifthly, I must take into account the nature of the dispute before me; - a commercial dispute. The Civil Evidence Act recognises the evidentiary characteristics likely to colour disputes of this nature; - business records. To that extent, s 14 of the Act provides as follows; - 14 Business records (1) In this section— “business” includes a trade, profession or calling or any other such occupation or activity. (2) A statement contained in a document shall be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible if— (a) the document is or forms part of the records appertaining to or kept by or for a business or at any time formed part of such records; and (b) the statement in the document was made, or may reasonably be supposed to have been made, in the ordinary course of or for the normal purposes of the business— (i) by a person who had or may reasonably be supposed to have had personal knowledge of the fact concerned; or (ii) on the basis of information supplied directly or indirectly by a person who had or might reasonably be supposed to have had personal knowledge of the fact concerned. HH 418-25 HCHC 242/24 (3) A document which is admissible under this section may be produced in evidence by any person who for the time being has custody of the document or is responsible for managing the business for which the document was produced. [29] Lastly, I must again restate the age-old principle that the purpose of litigation is to resolve disputes between parties. And beyond that, resolve controversies that may escalate into societal disharmony. Bearing in mind (a) that litigation is not a game of wits (b) the pardonable lapses in the application for admission of the email communication into evidence and (c) the nature of the evidence concerned as possibly, part of a business records, I believe it will be fitting to resort to the option granted in s 50 of the Civil Evidence Act. This provision states that; - 50 Court may examine evidence to deter admissibility or existence of privilege (1) For the purpose of determining whether or not any statement, matter or thing is or should be admissible in evidence or privileged from disclosure in terms of this Act, a court shall be entitled, but not obliged— (a) to examine the statement, matter or thing; and (b) to hear evidence or receive information concerning the statement, matter or thing or concerning its admissibility; and may make such order in respect thereof as the court considers appropriate. (2) If it is appropriate in the circumstances to do so, a court may conduct any examination or hear any evidence in terms of subsection (1) in private and may take such other steps as the court considers necessary to limit publication of the proceedings or disclosure of the statement, matter or thing concerned, whether in terms of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04] or otherwise. DISPOSITION [30] I will disallow the objection for the aforegoing reasons. This ruling does not mean that the application for admission of the email communication is automatically granted. Plaintiff is merely accorded an opportunity to resort to the procedural options available to him under the Civil Evidence Act in seeking the production of his document in evidence. [31] It is therefore ordered; - HH 418-25 HCHC 242/24 1. That the objection be and is hereby dismissed with costs in the cause. Matsikidze Attorney at Law-plaintiff`s legal practitioners Rusinahama-Rabvukwa -defendant`s legal practitioners [Chilimbe J____14/7/25]