Minister of Defence, Security & War Veterans Affairs (N.O) v Andy Manyeruke and Minister of Defence, Security & War Veterans Affairs (N.O) v Dzikamai Chivhanga

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MINISTER OF DEFENCE, SECURITY & WAR VETERANS AFFAIRS (N.O)
versus
ANDY MANYERUKE


MINISTER OF DEFENCE, SECURITY & WAR VETERANS AFFAIRS (N.O)
versus
DZIKAMAI CHIVHANGA


HIGH COURT OF ZIMBABWE
MUREMBA J
HARARE, 9 July 2021 & 28 July 2021


Opposed Applications


T.Chinyoka, for the applicant
W.P Mandinde, for the respondents


        MUREMBA J: The applicant was sued by the two respondents in HC 5141/19 and
HC 5140/19 respectively. The two respondents are claiming damages in the sum of US$23
000.00 and US$17 000.00 respectively arising from the injuries they allegedly sustained after
having been shot by members of the Zimbabwe National Army who were acting in the course
and scope of their employment. The applicant is being sued on the basis of vicarious liability
since she is the minister responsible for the Zimbabwe National Army.
        The two matters were consolidated and heard together since they raised the same
issues and the parties in the matters were being legally represented by the same legal
practitioners.
        It is common cause that the applicant having been served with the summonses in both
matters on 24 July 2020, appearances to defend were only filed on her behalf by her legal
practitioners on 1 September 2020. Thereafter the applicant went on to file exceptions and
special pleas to the respondents’ summonses. It is in the replications that the respondents
averred that the exceptions and special pleas were improperly before the court as the
applicant was barred for having entered appearances to defend out of time. It is on this basis
that the applicant filed the present applications for upliftment of the bar in terms of Rule 84
of the High Court Rules, 1971. The respondents opposed the applications.
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At the hearing I raised an issue with regards to the founding Affidavits which were in both
cases deposed to by one Abigail Mushayabasa a legal practitioner with Messrs Mutumbwa
Mugabe and Partners, the legal practitioners of the applicant in both matters. Relying on the
cases of Ibbo Mandaza t/a Induna Development Projects v Mzilikazi Investments (Pvt) Ltd
HB 23/07 and Zimplastics (Pvt) Ltd v Rolly Corbet HH 32-14 Mr Chinyoka submitted that
the founding affidavit was proper because legal practitioners often depose to founding
affidavits on behalf of their clients in procedural matters. Mr Mandinde submitted that the
founding affidavit was improper.
       Whilst it is not uncommon for legal practitioners to depose to affidavits on behalf of
clients in procedural matters, this can only be done in cases where the facts of the case are
within the legal practitioner’s knowledge. See Rule 227 (4) (a) of the High Court Rules,
1971. It provides that,
        “An affidavit filed with a written application shall be made by the applicant or respondent, as
       the case may be, or by a person who can swear to the facts or averments set out in therein.”


See also Ibbo Mandaza t/a Induna Development Projects v Mzilikazi Investments (Pvt) Ltd
HB 23/07 and Zimplastics (Pvt) Ltd v Rolly Corbet HH 32-14.
       In casu Abigail Mushayabasa, the legal practitioner sought to explain in the founding
affidavits what happened at the Defence Forces offices from the 24th July 2020 when the
summonses were served by the sheriff. She explained what happened at the reception and
how the summonses were dispatched to and received by the Defence Forces Legal Services
on the 18th of august 2020. Clearly all these facts were not within her personal knowledge as
she does not work for the Defence Forces Legal Services. On that basis she would not know
what transpired there between 24 July 2020 and 18 August 2020. Annexure ‘B’ to the
applicant’s applications show that her law firm only got instructions from the Defence Forces
Legal Services to represent the applicant in the two matters on 31 august 2020 and on 1
September 2020, that is when they filed appearances to defend on behalf of the applicant.
       An affidavit is a sworn statement that takes the place of oral evidence. The person
who deposes to an affidavit asserts that the information they have given is true and they have
personal knowledge of it. The person will also be saying that they are competent to testify if
called into court about the information provided in the affidavit. If the present matter was a
trial, Abigail Mushayabasa would not have certainly taken the witness stand to tell the court
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what happened at the Defence forces offices when the summonses were served because she
was not there. All that she said is hearsay evidence.
          In the case of Zimplastics (Pvt) Ltd that Mr Chinyoka sought to rely on, the court
accepted the founding affidavit that was prepared by the legal practitioner in an application
for condonation for late filing of heads of argument.               Considering that it is the legal
practitioner who had failed to file the heads of argument on time, she was certainly the right
person to depose to the founding affidavit explaining her failure to act on time. The facts are
clearly distinguishable from the facts in the present matter. In the present matter the legal
practitioner had no duty to explain anything since the summonses were not served at her law
firm. It was the client’s duty to explain because the summonses were served at her offices.
          Mr Chinyoka then advanced the argument that the supporting affidavit that was
deposed to by the Director of Legal Advisory Services and Litigation in the Defence Forces,
one Vote Albert Murove in support of the application has the effect of curing the hearsay
evidence in the founding affidavit as the averments made therein were based on the
averments made in the supporting affidavit.
          Mr Mandinde argued that an application stands or falls on the founding papers to
which Mr Chinyoka responded by saying that a supporting affidavit forms part of the
founding papers of the application. Rule 230 of the High Court Rules provides that “a court
application shall be in Form 29 and shall be supported by one or more affidavits setting out
the facts upon which the applicant relies.” So, there can be one or more affidavits to support
an application. These affidavits form the basis of the application and constitute the founding
papers.     However, despite the fact that both the founding affidavit and the supporting
affidavit(s) constitute the founding papers of the application, there is a distinction between a
founding affidavit and a supporting affidavit. The founding affidavit lays out all the facts and
basis of seeking relief. See Austerlands (Pvt) Ltd v Trade and Investment Bank and 2 others
SC92/05 and Titty Bar and Bottle Store (Pty) Ltd v ABC Garare (Pty) Ltd and Ors 1974 (4)
SA 362 (T). In Austerlands case at p 8 CHIDYAUSIKU CJ (as he then was) held that;
          “The general rule that has been laid down in this regard is that an application stands or falls
          on the founding affidavit and the facts alleged therein. This is how it should be, because the
          founding affidavit informs the respondent of the case against the respondent that the
          respondent must meet. The founding affidavit sets out the facts which the respondent is called
          upon to affirm or deny. See Pountas’ Trustee v Lahamas 1924 WLD 67 at 68.”
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In explaining what a supporting affidavit is, MATANDA-MOYO J in the case of Chiparaushe
& 0rs v Triangle Limited & Ors HH 504-16 at page 3 said,
       “The supporting affidavits as the word “supporting” meaning; entails buttressing a founding
       affidavit properly before the court. Once the founding affidavit cannot stand so do the
       supporting affidavits.”

       In casu the founding affidavits by Abigail Mushayabasa are based on hearsay which
in the circumstances of these cases is inadmissible. If this was a trial, Abigail Mushayabasa
would not have taken the witness stand to tell the court what happened at the defence forces
offices. This clearly demonstrates that her founding affidavits are invalid. Since they are
invalid, the supporting affidavits by Vote Albert Murove have no founding affidavits to
support or buttress. Put differently, in the absence of a founding affidavit, a supporting
affidavit has nothing to support. It also cannot stand on its own and be the foundation or
basis of the application. Put differently, once a founding affidavit is found to be invalid the
supporting affidavit cannot take the place of the founding affidavit. However, even if it could,
the supporting affidavit in the present matter is too shallow to stand on its own and take the
place of the founding affidavit. It is 6 paragraphs long whereas the founding affidavit is 30
paragraphs long. It does not have the required detail for the application. It does not explain
the misfiling of the summonses that happened. The details thereof are missing. It does not
explain the importance of the case and the prospects of success of the applicant. It reads:
   “I, the undersigned VOTE ALBERT MUROVE, do hereby make oath and state the following:
   1. 1 am the Director Legal Advisory Services & Litigation in the Defence Forces of Zimbabwe.
   2. The Summons in this matter were brought to the attention of Defence Forces Legal Services
        on 18th August 2020.
   3. I proceeded to instruct Applicant’s attorneys of record to defend this matter through
        correspondence of 31st August 2020. The letter is attached in the founding papers as
        “Annexure B”.
   4. At all material times, I was not aware that the summons had been served on 24th July 2020
        and that the dies induciae had lapsed.
   5. It only came to my attention that Applicant was barred when I was advised by Applicant’s
        legal practitioners of Respondent’s replication to the exception and special plea.
   6. The delay was not wilful, it was due to misfiling by personnel within Applicant’s offices.

   WHEREFORE, I pray for an order in terms of the Draft Order attached.”

   The court’s power to grant the reliefs the applicant is seeking is not exercised arbitrarily
and upon the mere asking. It is exercised with proper judicial discretion and upon sufficient
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and satisfactory grounds being shown by the applicant. 1 For the court to exercise its
discretion judiciously an adequate affidavit ought to be placed before it.
      This court has said that in procedural matters legal practitioners can depose to founding
affidavits on behalf of clients. However, this does not mean that legal practitioners can do so
indiscriminately. The rider is that the legal practitioner should have knowledge of the facts of
the matter. Where the legal practitioner does not have knowledge of the facts and the
knowledge is in the purview of the client or some other person, it is the client or that other
person who should depose to the founding affidavit. Legal practitioners should know that the
general rule is that they should not depose to founding affidavits on behalf of clients. They
can only do so as an exception to this general rule. See Samkange & Anor v The Master &
Anor HH-63-93. In the Dr Ibbo Mandaza case at p 3 NDOU J even remarked that even in
such exceptional cases, the route should be sparingly resorted to.
      In view of the foregoing, I make the finding that the founding affidavits deposed to by Abigail
Mushayabasa in the two matters are invalid. As such there are no applications before the court. There
being no applications, I will thus strike off the matters from the roll. As was correctly submitted by
both counsels, I will order that each party bears its own costs since it is the court which mero motu
raised the legal point of the founding affidavit being invalid.
           In the result, it be and is hereby ordered that: -
           1. The two matters are struck off the roll.
           2. Each party shall bear its own costs.




Mutumbwa Mugabe & Partners, applicant’s legal practitioners
Zimbabwe Human Rights NGO Forum, respondents’ legal practitioners




1
    Herbestein & van Winsen’s The Civil Practice of the Superior Courts of South Africa 4 ed at p 897-8.