Gift Nyathi v Nobukhosi Baleni and Assistant Master of the High Court N.O.

### Preamble
1
HB 289/20
HC 702/20
XREF HC 138/20
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GIFT NYATHI

Versus

NOBUKHOSI BALENI

And

ASSISTANT MASTER OF THE HIGH COURT N.O

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 7 OCTOBER AND 3 DECEMBER 2020

Opposed Application

Advocate S Siziba, for the applicant

Z C Ncube, for the 1st respondent

MOYO J:	Applicant has filed this application for rescission of judgment seeking to rescind an order granted by this court on 2 March 2020 under HC 138/20 which order was to the effect of appointing 1st respondent as a curator bonis of the applicant’s estate.  Applicant alleges that on 21 January 2020 1st respondent sought an order through an ex parte application to the effect that applicant was of poor health and therefore was mentally incapacitated and could not control her life and decisions.  1st respondent was then granted such an order ex parte.

At the hearing of the application, applicant’s counsel raised a point in limine that 1st respondent’s papers were fatally defective and that therefore they must be considered a none event and the matter be dealt with as unopposed.  Counsel for the applicant argued that the opposing affidavit is not notarized and does not comply with the section 3 of the High Court Authentication Rules which is peremptory.  Applicant further argued that therefore 1st respondent not having filed valid opposing papers is consequently barred.  1st respondent’s counsel, argued that in terms of section 5 of the High Court Authentication Rules, there was no doubt that 1st respondent deposed to the opposing affidavit and that therefore they must be accepted.  1st respondent’s counsel argued that the affidavit was notarized via zoom.  Applicant’s counsel further argued that Mr Jabulani Ndubiwa who allegedly notarized the affidavit via zoom due to Covid 19 restrictions is himself not a notary public and that therefore, the papers do not meet the required threshold and are thus fatally defective.

The stamp inscribed by Jabulani Ndubiwa clearly shows that he is not a Notary Public for if he was, his stamp is the one that speaks to that fact.  There is no other platform for the notary public who notarises documents to tell us about his credentials save for his seal of office.  If his seal of office does not speak to the notary public office then this court cannot assume that he is Notary Public.  Whilst the issue of whether notarization by zoom is valid or not, visa vis the Covid 19 pandemic, is also a pertinent issue, in this matter however I will not deal with it because there is an issue with the Notary Public’s credentials meaning that whether the notarization by zoom is valid or not, we have an affidavit that was purportedly notarized via zoom as it were, which was not notarized in the true sense of the word because what Mr J Ndubiwa did was to commission the affidavit rather than notarise it since he is not a Notary Public and does not possess a seal of a notary public.  It therefore follows that zoom or no zoom, the affidavit was commissioned rather than notarized and yet the person deposing thereto is abroad.  This clearly does not comply with the Rules of this court on the authentication of documents executed outside Zimbabwe.

Obviously section 3 of the Authentication rules applies and the affidavit is consequently fatally defective for want of compliance with the Rules.  The affidavit being fatally defective it therefore follows that there are no valid opposing papers in this matter.  I accordingly upheld the point in limine.  Consequently the application must succeed as it is unopposed.  Applicant has filed papers from her doctors to show that she is fit to conduct her own personal affairs and she has further averred that in seeking to be appointed her curator bonis, 1st respondent was being motivated by her own interests rather than the applicant’s own interests.

Consequently, I hold that applicant has made a case for the relief she seeks and I accordingly grant the application in terms of the draft as amended on the issue of costs.

R Ndlovu and Company, applicant’s legal practitioners

Messrs Ncube and Partners, 1st respondent’s legal practitioners