CHURCH OF THE PROVINCE OF                           

CENTRAL AFRICA

versus

MR ELSON M JAKAZI

and

ALEX & WEBB REALITY

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

UCHENA J

HARARE  8 and 16 April 2010.

Urgent Chamber Application

H Zhou, for the Applicant

G Chikumbirike, for the first and second respondents

UCHENA J:    The applicant is the Church Of The Province Of Central Africa and is responsible for the affairs of the Anglican Church in Central Africa. The first respondent is its Bishop for Manicaland with whom it has pending cases before the courts for the determination of whether or not he is still its Bishop. The first respondent leads a faction of the Anglican Church in Manicaland. The second respondent is an Estate Agent operating in Mutare. It was in August 2009, given a mandate by the first respondent’s faction to sale two pieces of land belonging to the Anglican church. The third respondent is the Registrar of Deeds and was cited in his official capacity as the official responsible for the registration of transfer of title over land in Zimbabwe.

The applicant filed this urgent application on the following facts. On 18 March 2010 the applicant’s Registrar who is the deponent of its founding affidavit received a call from a member of the public who inquired from him, “whether the purchase price of stands number 91 and 92 Second Street Mutare were negotiable”. These are church assets over which the two factions of the Anglican church in Manicaland, have a pending case before the courts. The applicant and first respondent, had on 12 October 2009, agreed to a consent order being made under case numbers HC 4700/09 and HC 4804/09 regulating the control of church assets including these stands. The first respondent’s faction had in August 2009 given the second respondent a mandate to sale stands 91and 92.

Alarmed by the inquiry the applicant filed this urgent application seeking a provisional order interdicting the respondents from selling or in any way effecting transfer of the church’s assets. It had obtaining a copy of the mandate from the second respondent. The first respondent does not deny giving the second respondent the mandate to sale the stands, but says it suspended the mandate when it agreed to the consent order of 12 October 2009.

The first and second respondents opposed the application and raised the following preliminary issues:

1. that the application is not urgent;
2. that the matter is res judicata; and
3. that the applicant and the first respondent do not have locus standii to sue and be sued in this case.

URGENCY

Mr Chikumbirike for the first and second respondents submitted that the application is not urgent because the mandate was given in August 2009 and nothing happened until 18 March 2010.  He further submitted that the mandate was overtaken by the consent order of 12 October 2009. He further submitted that the urgency is premised on hearsay evidence. He argued that if the hearsay evidence is excluded then there is no urgency at all as the cause of action arose in August 2009.

Mr Zhou for the applicant submitted that the case is urgent as the stands are being sold as demonstrated by the inquiry of 18 March 2010. He further submitted that the case is urgent as the respondents did not say that the mandate had been suspended after the parties agreed on the consent order of 12 October 2009. He later withdrew the later when Mr Chikumbirike referred to a paragraph in the first respondent’s opposing affidavit in which he, specifically said the mandate had been suspended. The application’s urgency therefore depends on the admissibility of the inquiry of 18 March 2010. Mr Zhou submitted that the evidence of inquiry is not inadmissible hearsay, as first hand hearsay is admissible in terms of s 27 of the Civil Evidence Act [Cap 8:01]. He further submitted that hearsay evidence is admissible in urgent interlocutory applications.

Mr  Chikumbirike in response submitted that s 27 of the Civil Evidence Act deals with viva voce evidence and is therefore not applicable to cases were the hearsay evidence is tendered in application proceedings. He insisted that the applicant should have filled a supporting affidavit from the inquirer. On the issue of hearsay evidence being admissible in urgent cases, he submitted that the applicant filed this application on 26 March 2010, a week, after the date of inquiry therefore it had ample time, within which it could have obtained a supporting affidavit from the inquirer.

I agree with Mr Chikumbirike that s 27 (1) of the Civil Evidence Act does not apply to first hand hearsay evidence in application proceedings. Section 27 provides as follows.

“(1)      Subject to this section evidence of a statement made by any person, whether orally or in writing or otherwise, 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 thoseproceedings”

The use of the words “if direct oral evidence by that person of that fact would be admissible in those proceedings”, suggests that s 27 (1) applies to first hand hearsay evidence in action proceedings.

The evidence of the caller’s inquiry, is therefore not admissible under s 27 (1) of the Civil Evidence Act.

I must now consider the admissibility of the caller’s inquiry on the basis of urgency. Advocate Zhou’s submission that hearsay evidence is admissible in urgent cases is a correct statement of our law of evidence.  It is made admissible by the provisions of section 56 of the Civil Evidence Act which provides as follows:

“Where an issue as to the admissibility of any evidence or the  competence or compellability of any witness arises which is not provided for in this Act, the issue shall be determined according to the law applicable in similar cases before the Supreme Court of  Judicature in England:”

.

According to our case law, such evidence is admissible under rules which allows for its  admission in interlocutory proceedings. See the case of Johnstone v Wildlife Utilisation Services (Pvt) Ltd 1966 (4) SA 685 ® @ 686 where BEADLE CJ commenting on the admissibility of hearsayevidence in urgent applications said:

“It is accepted in our practice that the rules of admission of hearsay evidence applicable to interlocutory proceedings are not the same as those that apply to trial actions. Such evidence given in affidavit form in such applications is not necessarily excluded because it is hearsay, provided the source of the information is disclosed. As I understand our practice it is this: First the Court must examine the evidence given in this form and ascertain whether the prejudice which might result to the opposite party, if the evidence is later shown to be incorrect, would be irremediable. Second the Court must examine the passages to see whether there is some justification, such as urgency, for the evidence being placed before it in hearsay, and not in direct, form. In any event, the Court will always attach less weight to evidence which is placed before it in hearsay form than to that which is placed before it in direct form. But the weight to be attached to it does not necessarily affect its admissibility, provided it is relevant.”

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 content of the caller’s statement is inadmissible hearsay. Such hearsay evidence is only admissible if the source of the information is disclosed. The result, is that this court can not admit and rely on such evidence. Even if the caller’s statement was admissible the fact that the caller’s identity was not revealed, makes it impossible for this court to consider the aspects it should consider when it is to proceed on such evidence.

We would in the result end up with a situation where a call was received from someone who was inquiring about the price of the stands. We do not know when the caller had received information that the stands were being sold. The inference that the caller had recently been informed of the stands being on sale is not the only reasonable inference which can be drawn from the facts of this case. He may well have for a long time, known of their being on sale but decided to inquire at the time he did for reasons only known to himself. He may have received the information from people who knew of their having been on sale. What is clear is that there is no evidence that the caller had recently received information about the stands being on sale. In the absence of that evidence it could still not be said that the application is urgent. There would be no proof of an imminent sale of the stands to justify the hearing of the application on an urgent basis. It would still have to be heard as an ordinary application as it could not be said that it could not wait.

In this case I agree with Mr Chikumbirike, that the time which lapsed between the date of inquiry and the date this application was filed would have enabled the applicant to obtain a supporting affidavit from the caller. It does not therefore justify the placing of hearsay evidence before this court. In the absence of that evidence there is no proof of an imminent sale of the stands.

I therefore conclude that the application is not urgent. It should therefore await its turn to be heard in terms of the rules applicable to none urgent applications. In view of my finding that the application is not urgent I will not determine the other preliminary issues as doing so would amount to hearing a none urgent application on an urgent basis.

Mr Chikumbirike sought the dismissal of the application if the court found in the applicant’s favour on the preliminary issues he raised. The application can not be dismissed because of its lack of urgency, as urgency merely determines whether or not it can be heard on an urgent basis ahead of other cases awaiting the court’s attention. See the case of Commissioner, South African Revenue Service v Hawker Aviation Partnership & Ors 2006 (4) SA 292 (SCA) @ 299F- 300A.

The application is therefore struck off the roll.

The applicant shall pay the respondent’s costs.

Gill Godlonton & Gerrans, applicant’s legal practitioners.

Chikumbirike & Associates, first and second respondent’s legal practitioners