Civil Evidence Act [Chapter 8:01]

CHAPTER 8:01
CIVIL EVIDENCE ACT
Acts 15/1992, 14/1995 (s. 29), 14/1999 (s, 29), 6/2000 (s. 151), 22/2001 (s. 4).
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
2. Interpretation.
3. Application of Act.
PART II
COMPETENCE AND COMPELLABILITY OFWITNESSES
4. Competence of witnesses generally.
5. Incompetence due to mental disorder, liquor or drugs.
6. Spouses: when competent and compellable.
PART III
PRIVILEGE
7. Privilege from incrimination in respect of criminal proceedings, penalties or forfeiture.
8. Privilege relating to legal profession.
9. Privilege of confidential communications.
10. Privilege in public interest.
PART IV
DOCUMENTARY EVIDENCE
11. Admissibility of copies of documents.
12. Public and official documents.
13. Documents produced by computers.
14. Business records.
15. Endorsements made outside Zimbabwe on negotiable instruments.
16 Documents from designated countries.
17. Translations of documents.
18. Disputed handwriting.
19. Refreshing memory from documents.
20. Proof of certain matters by affidavit.
21. Photographs and plans.
PART V
OPINION EVIDENCE
22. Expert and lay opinion evidence.
23. Medical reports.
PART VI
JUDICIALNOTICE
24. Judicial notice.
25. Foreign law.
PART VII
ADMISSIBILITY OFCERTAIN EVIDENCE
26. Irrelevant evidence inadmissible.
27. First-hand hearsay evidence.
28. Evidence in previous legal proceedings.
29. Evidence of future rights.
30. Taking of evidence in advance of hearing.
31. Proof of previous criminal conviction.
32. Proof of previous inconsistent statement.
33. Evidence of character or reputation of party.
34. Evidence of similar facts.
35. Proof of public office.
36. Admissions.
37. Evidence admissible by agreement.
38. Video and audio tapes and similar material.
PART VIII
BOOKS AND DOCUMENTS OF FINANCIAL INSTITUTIONS
39. Interpretation in Part VIII.
40. Admissibility of financial documents, entries in books of account and copies thereof.
41. Proof by affidavit of financial documents, entries in books of account and copies thereof.
42. Financial institutions not compelled to produce books or financial documents.
43. Part VIII not applicable where financial institution is a party.
44. Computerized financial documents and entries in books of account.
PART IX
OATHS AND AFFIRMATIONS
45. Oaths and affirmations.
46. Unsworn evidence.
47. Administration of oath, affirmation or admonition.
PART X
GENERAL
48. Court’s power to exclude certain evidence.
49. Court’s power to exclude evidence under other laws.
50. Court may examine evidence to determine admissibility or existence of privilege.
51. Court not obliged to believe any evidence.
52. Decision may be based on evidence of single witness.
53. Power to take evidence on commission not limited by Act.
54. Evidence admissible under more than one provision of Act.
55. Interpreters.
56. Cases not provided for in Act.
AN ACT to amend the law of evidence applicable to civil proceedings; and to provide for matters
connected with or incidental to the foregoing.
[Date of commencement: 23rd October, 1992.]
PART I
PRELIMINARY
1 Short title
This Act may be cited as the Civil Evidence Act [Chapter 8:01].
2 Interpretation
(1) In this Act—
“civil proceedings” means proceedings which are not criminal in nature and which are before the Supreme
Court, the High Court, a magistrates court or any other court to which the strict rules of evidence apply;
“computer” means any device or apparatus, whether commonly called a computer or not, which by electromechanical,
mechanical or other means is capable of receiving or absorbing data and instructions supplied
to it, of processing the data according to mathematical or logical rules and, in compliance with
such instructions, of storing the data before or after such processing, and of producing information derived
from the data as a result of such processing, and includes any printing unit attached to such a device
or apparatus;
“court” includes a tribunal;
“document” includes any record of information made in a permanent form;
“give evidence” includes to answer a question and to produce a thing in evidence;
“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the
President may, from time to time, assign the administration of this Act;
“statement” includes any representation, whether made in words or figures or otherwise.
(2) Any reference in this Act to evidence of a fact or to a record of a fact shall be construed as including evidence
or a record, as the case may be, of a transaction or circumstance.
(3) Any power conferred by this Act upon a court may be exercised, subject to any enactment by which the
court is constituted, by the person presiding over the court.
(4) Where any period for the giving of notice in terms of this Act is expressed in days, Saturdays, Sundays
and public holidays shall not be counted as part of the period.
3 Application of Act
This Act shall apply only to civil proceedings.
PART II
COMPETENCE AND COMPELLABILITY OFWITNESSES
4 Competence of witnesses generally
Except as otherwise provided in this Act or any other enactment, every person shall be competent to give evidence
in any civil proceedings.
5 Incompetence due to mental disorder, liquor or drugs
No person who is—
(a) suffering from any mental disorder or defect; or
(b) under the influence of intoxicating liquor or drugs;
to such an extent that he is deprived of the proper use of his reason shall be competent to give evidence whilst he
is so suffering or whilst he is so influenced.
6 Spouses: when competent and compellable
(1) In this section—
“spouse” includes a party to a marriage contracted according to customary law, which—
(a) has been solemnized under the Customary Marriages Act [Chapter 5:07]; or
(b) was registered on or after the 1st February, 1918, under the Native Marriages Act [Chapter 79 of
1939]; or
(c) being a marriage contracted outside Zimbabwe, is recognized as a valid marriage in the country
in which it was contracted.
(2) Except as otherwise provided in this section, the spouse of a party to civil proceedings shall be competent
and compellable as a witness in those proceedings.
(3) No person shall be compelled to disclose any communication, whether oral or in writing, made by him to
his spouse or made to him by his spouse during their marriage.
(4) Subsection (3) shall apply whether or not the marriage has been subsequently terminated by death or dissolved
or annulled by order of a court.
(5) No person shall be compelled to give any evidence which the spouse of that person could not be compelled
to give.
PART III
PRIVILEGE
7 Privilege from incrimination in respect of criminal proceedings, penalties or forfeiture
No person shall be compelled to give any evidence if the evidence would tend to expose him to—
(a) criminal proceedings in respect of an offence against the law of Zimbabwe; or
(b) proceedings for the recovery of any penalty or forfeiture in favour of the State in terms of any enactment
in force in Zimbabwe
8 Privilege relating to legal profession
(1) In this section—
“client”, in relation to a legal practitioner, means a person who consults or employs the legal practitioner in
his professional capacity;
“confidential communication” means a communication made by such a method or in such circumstances that,
so far as the person making it is aware, its contents are disclosed to no one other than the person to
whom it was made;
“legal practitioner” means a person entitled to practise in Zimbabwe as a legal practitioner or entitled to practise
outside Zimbabwe in an equivalent capacity;
“third party”, in relation to legal proceedings, means a person who is not a party to those proceedings.
(2) No person shall disclose in evidence any confidential communication between—
(a) a client and his legal practitioner or the legal practitioner’s employee or agent; or
(b) a client’s employee or agent and the client’s legal practitioner or the legal practitioner’s employee or
agent;
where the confidential communication was made for the purpose of enabling the client to obtain, or the legal
practitioner to give the client, any legal advice.
(3) No person shall disclose in evidence any confidential communication between a client, or his employee or
agent, and a third party, where the confidential communication was made for the dominant purpose of obtaining
information or providing information to be submitted to the client’s legal practitioner in connection with pending
or contemplated legal proceedings in which the client is or may be a party.
(4) No person shall disclose in evidence any confidential communication between a client’s legal practitioner,
or his employee or agent, and a third party, where the confidential communication was made for the dominant
purpose of obtaining information or providing information for the client’s legal practitioner in connection with
pending or contemplated legal proceedings in which the client is or may be a party.
(5) The privilege from disclosure specified in this section shall not apply—
(a) if the client consents to disclosure or waives the privilege; or
(b) if the confidential communication was made to perpetrate a fraud, an offence or an act or omission
rendering a person liable to any civil penalty or forfeiture in favour of the State in terms of any enactment
in force in Zimbabwe; or
(c) after the death of the client, if the disclosure is relevant to any question concerning the intention of the
client or his legal competence.
(6) Any evidence given in contravention of this section shall be inadmissible.
9 Privilege of confidential communications
(1) In this section—
“confidential communication” means a communication made by such a method or in such circumstances that,
so far as the person making it is aware, its contents are disclosed to no one other than the person to
whom it was made;
“interested person”, in relation to a confidential communication, means a person, to whom, by whom, about
whom or on whose behalf the confidential communication was made.
(2) Without derogation from section eight, no person shall disclose in evidence any confidential communication
if the court has directed that it should not be disclosed, the court being satisfied that its disclosure would
cause harm to—
(a) an interested person; or
(b) the relationship between interested persons; or
(c) any relationship similar to that referred to in paragraph (b);
and that the harm would outweigh any prejudice to the parties or to the interests of justice that might be caused by
the non-disclosure of the confidential communication.
(3) In determining whether or not a confidential communication should or should not be privileged from disclosure
in terms of subsection (2), a court shall have regard to—
(a) the importance of the evidence in the proceedings; and
(b) the extent, if any, to which the contents of the confidential communication have already been disclosed;
and
(c) whether an interested person has consented to the disclosure of the confidential communication; and
(d) the nature of the cause of action and the subject matter of the proceedings; and
(e) any means available to limit the publication of the evidence, whether in terms of the Courts and Adjudicating
Authorities (Publicity Restriction) Act [Chapter 7:04] or otherwise.
(4) Any evidence given in contravention of this section shall be inadmissible.
10 Privilege in public interest
(1) A court may declare any evidence to be privileged in the public interest if the court is satisfied—
(a) that it would be detrimental to the public interest for the evidence to be given; and
(b) that such detriment would outweigh any prejudice to the parties or to the interests of justice that might
be caused by non-disclosure of the evidence.
(2) No person shall give any evidence in civil proceedings if the court has declared the evidence to be privileged
in the public interest in terms of subsection (1).
(3) For the purpose of subsection (1), but without limiting it, public interest includes matters that relate to—
(a) the security or defence of the State; or
(b) the proper functioning of the Government; or
(c) international relations; or
(d) confidential sources of information which are concerned with the enforcement or administration of the
law; or
(e) the prevention or detection of offences or contraventions of the law.
(4) For the purpose of determining whether or not any matter should be declared privileged in terms of subsection
(1), and in weighing up the balance of interests referred to therein, the court shall have regard to—
(a) the likely effect on the public interest if the matter concerned is disclosed; and
(b) the importance of the matter concerned in relation to the proceedings and the need to do justice to the
parties; and
(c) the nature of the cause of action and the subject matter of the proceedings; and
(d) any means available to limit the publication of the matter concerned, whether in terms of the Courts and
Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04] or otherwise.
(5) Any evidence given in contravention of this section shall be inadmissible.
PART IV
DOCUMENTARY EVIDENCE
11 Admissibility of copies of documents
Except as otherwise provided in this Act or any other enactment, a copy of a document shall not be admissible
to prove the document’s contents, unless—
(a) all the parties to the civil proceedings concerned consent to the production of the copy; or
(b) the court in its discretion permits the production of the copy, being satisfied that the original document—
(i) has been destroyed or is irretrievably lost; or
(ii) is in the possession of another party to the civil proceedings, who refuses to produce the original
document; or
(iii) is in the possession of a person who cannot be required by law to produce the original; or
(iv) is outside Zimbabwe; or
(v) for any other good and sufficient cause, cannot reasonably or practicably be produced.
12 Public and official documents
In this section—
“public document” means a document—
(a) which was made by a public officer pursuant to duty to ascertain the truth of the matters stated in the
document and to make an accurate record thereof for public use; and
(b) to which the public have a right of access;
“public officer” means a person holding or acting in a paid office in the service of the State or a local authority.
(2) A copy of or extract from a public document which is proved to be a true copy or extract or which purports
to be signed and certified as a true copy or extract by the official who has custody of the original, shall be
admissible in evidence on its production by any person and shall be prima facie proof of the facts stated therein.
(3) A copy of or extract from a document, other than a public document, which is in the custody of an official
of the State by virtue of his office and which is proved to be a true copy or extract or which purports to be signed
and certified as a true copy or extract by the official who has custody of the original, shall be admissible in evidence
on its production by any person.
(4) An official who has custody of a public or other document referred to in subsection (2) or (3) may refuse
to produce the original of that document in evidence unless—
(a) a judge of the Supreme Court or the High Court orders its production; or
(b) the Minister or head of the Ministry responsible for its custody authorizes its production.
(5) No person who is subpoenaed or otherwise required to produce in evidence an original document referred
to in subsection (2) or (3) need comply with the subpoena or requirement unless there is shown to him an order of
a judge of the High Court or Supreme Court, or a copy of such an order, requiring him to produce the document,
or unless the Minister or head of the Ministry responsible for the document’s custody authorizes the production.
13 Documents produced by computers
(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;
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.
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.
(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.
15 Endorsements made outside Zimbabwe on negotiable instruments
(1) In this section—
“endorsement” includes any stamp, signature, writing, inscription or other mark;
“financial business” means the business of any commercial bank, accepting house, confirming house, discount
house, building society, savings bank or other financial institution;
“negotiable instrument” means any bill of exchange, letter of credit, cheque, draft or other document,
whether negotiable or not, which has been drawn or issued inside or outside Zimbabwe and is intended
to enable any person to obtain, directly or indirectly, any sum of money, whether in Zimbabwean or foreign
currency.
(2) Where there appears upon a negotiable instrument any endorsement that purports to have been made by a
person or institution purporting to carry on financial business outside Zimbabwe, it shall be presumed, unless the
contrary is proved, that the endorsement was made by that person or institution outside Zimbabwe and, if any date
is specified in or in connection with the endorsement, that the endorsement was made on that date.
16 Documents from designated countries
(1) In this section—
“designated country” means a country or territory declared to be a designated country in terms of subsection
(4);
“document” includes an extract from a document.
(2) Subject to subsection (3), any document purporting to have been prepared, attested, certified, compiled or
executed in a designated country shall be admissible in evidence as if it had been prepared, attested, certified,
compiled or executed, as the case may be, in Zimbabwe.
(3) Where a document is admissible in evidence only if it has been prepared. attested, certified, compiled or
executed by a particular person or by a person holding a particular office, possessing a particular qualification,
performing a particular function or engaged in a particular activity, a similar document emanating from a designated
country shall not be admissible in terms of subsection (2) unless it appears to have been prepared, attested,
certified, compiled or executed, as the case may be, by an equivalent person in the designated country concerned.
(4) The Minister may, by order in a statutory instrument—
(a) declare any country or territory to be a designated country for the purposes of this section;
(b) declare that any person or class of persons in a designated country is equivalent to any person or class of
persons in Zimbabwe, whether such equivalence relates to his or their office, qualification, function or
activity or otherwise:
Provided that an omission by the Minister to make a declaration in terms of this paragraph shall not preclude
a court from determining for itself whether or not any person in a designated country is equivalent to a person in
Zimbabwe.
17 Translations of documents
(1) Subject to subsections (2) and (3), where it is necessary to produce in evidence a translation of a document
into the English language, the translation shall be admissible on its production by any person entitled to
produce the original document, if the translation is accompanied by a document which purports to be an a
ffidavit made by a person who states in it that—
(a) he undertook the translation; and
(b) the translation is a true and accurate translation of the document to the best of his ability;
and thereupon the translation shall be presumed to be true and accurate, unless the contrary is proved.
(2) Any party wishing to produce a translation of a document in terms of subsection (1) shall serve a copy of
the translation on every other party to the proceedings in the time and manner required in terms of rules of court.
(3) Where a party does not accept the accuracy of a translation served on him in terms of subsection (2), he
shall immediately give notice of that fact to the party intending to produce the translation, who shall thereafter be
required to prove the accuracy of the translation by admissible evidence.
18 Disputed handwriting
Comparison of any disputed handwriting with any handwriting proved to be genuine may be made by any
witness, and such writings and the evidence of any witness with respect to them