[Urgent Chamber Application HH 664-16]

October 25, 2016


Evidence – Admissibility – Hearsay – Civil proceedings – Urgent application – Reliance on hearsay evidence in founding affidavit – When such evidence is admissible.

Practice and procedure – Pleadings – Founding affidavit – Hearsay evidence in founding affidavit – When admissible.

The law allows the admission of first hand hearsay evidence in motion proceedings, provided that the evidence sought to be introduced falls within the ambit of s 27 (1) of the Civil Evidence Act [Chapter 8:01]. The rules that govern admissibility of evidence in trial actions are different to those applicable in applications, more so urgent applications. The rules are based on the standard that an application stands or falls on its founding affidavit. A founding affidavit constitutes evidence and must contain evidence that is admissible and sufficient to found a cause of action. The admission of hearsay evidence is subject to safeguards. A litigant seeking to rely on hearsay evidence in a founding affidavit must satisfy the court that it has a cause of action and that it has evidence to sustain such a cause of action. For hearsay evidence to be admissible in an urgent application, the following key requirements have to be met:

(1) The deponent to the founding affidavit must sufficiently disclose the source of the information or statement he gives.

(2) The deponent to the affidavit must state in his sworn statement that he believes those claims to be true. The grounds of his belief in the truthfulness of the evidence sought to be introduced must be disclosed in his sworn statement.

(3) The evidence sought to be admitted must be about a statement made orally or in writing.

(4) The evidence must be such that it would have been admissible if the person responsible for it were to be present to give the evidence.

Second hand and third hearsay evidence is inadmissible. This is purely on the basis that such evidence may not be capable of verification. The court is required to weigh the prejudice the admission of the evidence will have on the other party should the evidence be led later; and determine if there is any justification, such as urgency, for the evidence being placed before it in that form. The applicant must proffer both an acceptable explanation as to why direct evidence is not available and good reason why such evidence is being presented in that manner.

Cases cited:

Galp v Tansley NO and Another 1966 (4) SA 555 (C), referred to

Hiltunen v Hiltunen 2008 (2) ZLR 296 (H), applied

Johnstone v Wildlife Utilisation Services (Pvt) Ltd 1966 RLR 596 (G), applied

Mia’s Trustee v Mia 1944 WLD 102, referred to

Legislation considered:

Civil Evidence Act [Chapter 8:01], s 27, 27 (1)

D Ochieng, for the applicant

T Madzedze, for the first respondent

No appearance for the other respondents


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