Christopher Zvinavashe v Nobuhle Ndhlovu

### Preamble
1
HH 3-2013
HC 5507/07
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CHRISTOPHER ZVINAVASHE

versus

NOBUHLE NDHLOVU

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 13 October 2011

Opposed Application

K Gama, for applicant

T D Muskwe, for respondent

CHITAKUNYE J: On 13 October 2011 after hearing both counsel I dismissed the application with costs. The reasons given for the dismissal were as follows:

The applicant approached this court seeking an order to rescind two judgments granted against him in default in case number HC1448/05. The default judgments were granted on 1 June 2005 and on 6 April 2006. He also sought an order that he files his plea to the summons in HC1448/05 within ten days from the grant of this order.

The deponent to the founding affidavit to the application is Felistus Murombo. In paragraph 1 of her affidavit she states that:

“I am the applicant’s wife. The applicant has authorized me to depose to this affidavit on his behalf and the power of attorney which he executed in my favor is annexure A hereto.”

The respondent opposed the application. The respondent raised some points in limine. The points in limine included that:-

The deponent to the founding affidavit is not competent to swear to an affidavit on behalf of the proper applicant as this right cannot be ceded to a third party.

This application has been filed out of time without an application for condonation for late filing of the application for rescission of judgment. This application must therefore fail for want of compliance with the rules.

The brief background is that the respondent sued the applicant in HC1448/05. On 1 June 2005 a judgment in default was entered against the applicant. Apparently the applicant applied for the rescission of that default judgment. On 6 April 2006 that application was dismissed in default.

On 14 December 2006, the applicant applied for an extension of the time within which to apply for rescission of the aforementioned default judgments. On 20 September 2007 that application was decided in the applicant’s favor. The judge ordered that:

“1. The applicant be and is hereby granted condonation for the late filing of application

for rescission of judgment granted on 1June 2005 in case number 1448/05;

The applicant be and is hereby ordered to file with the Registrar of the High Court

the aforesaid application within ten days of this order being granted by the court.”

The applicant did not file the application within the ten day period. He filed this application after the ten day period had lapsed. Despite being aware that he was out of time the applicant did not seek condonation of this latest delay or even explain the delay in his founding papers. That is the irregularity the respondent contended rendered this application not properly before this court.

The applicant’s response was to the effect that there is no rule requiring him to seek condonation of the late filing of this particular application, and by implication, he can file out of time without the need to seek court’s indulgence.

The applicant’s stance was tantamount to saying he can ignore the period granted by court within which to file the application and file such application at any time. That in my view is incorrect. The purpose of stipulating the time within which a party should file papers should be common cause. When one has failed to file papers or pleadings within the period ordered by court it is only logical that they should seek court’s indulgence. It is for court to decide whether to grant the indulgence or not.

The other point in limine pertains to the founding affidavit. The deponent purports to be clothed with the authority to depose to the affidavit by virtue of a general power of Attorney given to her by the applicant.

An affidavit may be defined as: - ‘a written statement in the name of the deponent, by whom it is voluntarily signed and sworn to or affirmed. It must be confined to such statement as the deponent is able of his own knowledge to prove, but in certain cases it may contain statements of information and belief with the sources and grounds thereof.’

Rule 227(4) (a) of the High Court Rules states that:

“An affidavit filed with a written application shall be made by the applicant or respondent, as the case maybe, or by a person who can swear to the facts or averments set out therein.”

The above definition and provision of r 227(4) (a) show the basic elements that must be evident in an affidavit.

A careful analysis of the founding affidavit shows that it lacks most of the constituent elements of a valid affidavit. The deponent has no personal knowledge of the facts she deposed to and she does not state the sources of information or that she believes such information to be true and the grounds for so believing. The only basis upon which she deposed to the affidavit is the general power of attorney and the fact that she purports to be the applicant’s wife.

In the affidavit the deponent did not even state why the applicant could not depose to a founding affidavit himself from wherever he is if indeed he felt he had good grounds for the granting of the order sought.

The applicant’s argument that the affidavit should be accepted in terms of s 27(1) of the Civil Evidence Act, [chapter 8:01] is without merit. That section provides that:

“(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 those proceedings.”

In Hiltunen v Hiltunen 2008(2) ZLR 296 at 297 B-C, a case almost on all fours with this case, court held that:

“… For first-hand hearsay 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 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 present and testifying….”

Court went on to hold further at 297 D-E that:

“…. in having recourse to the provisions of s 27(1) of the Civil Evidence Act in order to determine whether the contents of the affidavit could be admitted, the source of the information and the basis of belief by the deponent were not given, so it was not possible to determine whether, if the source of the information were present and testifying, such information as was supplied to the deponent would have been admissible.”

In casu, the affidavit is bereft of any information on the source and basis for deponent’s belief in the information. I am therefore of the view that the founding affidavit is inadmissible and so there is no proper application before me. The purported application is hereby dismissed with costs.

Madzivanzira, Gama & Associates, applicant’s legal practitioners

Muskwe & Associates, respondent’s legal practitioners.