MUNONDO v NEW CENTURY PRODUCTIONS (PVT) LTD and Others (242 of 2025) [2025] ZWHHC 242 (4 April 2025)

3 HH 242-25 HCH 5281/24 MAXWELL MUNONDO versus NEW CENTURY PRODUCTIONS (PVT) LTD and SHERIFF OF THE HIGH COURT OF ZIMBABWE and STANLEY CHAGAKA and ROLAND REMUNYANGA and MAKOBO MACHEKA and KNIFE MUYAMBO and PARDON MATARE and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER, CLIMATE AND RURAL DEVELOPMENT HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, 9 December 2024 & 4 April 2025 Urgent chamber application A Nyamufukudza, for the applicant C Marabura, for the 1st Respondent MANYANGADZE J: The applicant seeks stay of execution of a default judgment, pending an application for rescission of the default judgment. The first respondent obtained a default judgment against the applicant, under Case No. HCH 2620/24, on 6 November 2024, in terms of which the applicant and all those claiming occupation through him were ordered to vacate a portion of Garth Farm in order to pave way for the construction of a road. The applicant has filed an application for rescission of that judgment. Pending the determination of the application for rescission, the applicant seeks the relief of stay of execution. In its notice of opposition, the first respondent has raised three points in limine. These are that; The founding affidavit is fatally defective.The applicant is approaching the court with dirty hands.The applicant withdrew its urgent chamber application wherein the relief of stay of execution was sought. Defective Founding Affidavit The first respondent avers that the founding affidavit was not properly commissioned. The identity and status of the commissioner of oaths is not known. On the authority of Firstel Cellular (Pvt) ltd v NetOne Cellular (Pvt)Ltd SC 1/15, the first respondent contends that the founding affidavit should have clearly identified the person before whom it was deposed. It should indicate the office, capacity or status in which the person acts as a commissioner of oaths. These details are not disclosed. The applicant’s response to this point is in para 2 of his answering affidavit. He avers that a commissioner of oaths is appointed in terms of s 6 of the Justice of Peace and Commissioner of Oaths Act [Chapter 7:09]. He further avers that nowhere in the Act does it say that the commissioner of oaths shall disclose his status. The status is already known by virtue of the register kept at by the Ministry of Home Affairs, which the first respondent has not bothered to explore. The applicant does not deal with this issue in his heads of argument. He however deals with it through oral submissions made by his legal practitioner. He maintains the submissions made in the answering affidavit. These are to the effect that a register of commissioners of oaths is kept at the Ministry of Home Affairs. By this submission, he implies that if the first respondent has any doubts, he should check at the offices of the Ministry of Home Affairs. The Supreme Court pronounced itself clearly on this issue in Firstel Cellular (Pvt) Ltd, supra. patel JA (as he then was), stated, at p5: “It is common cause that there is no specific legislation regulating the issue in this jurisdiction and that the matter is one that is governed by practice. In that regard, what is required is that any stamp that is used to designate a commissioner of oaths should clearly identify the person before whom an affidavit is deposed and the office or capacity in which he or she acts as a commissioner. In casu, it is not disputed that Raymond Moyo is a legal practitioner and a notary public and, as such, a recognised commissioner of oaths. The respondent has therefore verified its cause of action in an affidavit, deposed by its functionary duly authorised thereto, before a clearly identified commissioner of oaths. That, in my view, suffices for the intended purpose of adducing evidence under oath and renders the validity of the respondent’s founding affidavit manifestly impervious to challenge.” The position is therefore clear that the commissioner of oaths ought to disclose his identity and status. It must be clear, ex facie the document commissioned, in what capacity he exercises the function of commissioner of oaths. What saved the day in the Firstel Cellular (Pvt) Ltd case, supra, is that the commissioner of oaths was a well-known legal practitioner. That is not so in casu. What is there is the name Ignatius Noah Kajengo, an address somewhere in Mabelreign, and a cell phone number. It is not known who Ignatius Noah Kajengo is and in what capacity he acts as commissioner of oaths. The applicant asserts that the first respondent ought to have checked the register kept at the Ministry of Home Affairs. Going by the Supreme Court authority cited, the founding affidavit falls short of the basic requirements of a validly commissioned affidavit. The capacity and official designation of the commissioner of oaths ought to be disclosed. This must not be searched at the Ministry of Home Affairs as suggested by the applicant. Such a search may only be conducted where one entertains some doubt on the credentials disclosed and seeks to impugn the credentials. The issue here is that the credentials are not disclosed at all. It is the failure to disclose the credentials that is vitiating the affidavit. That is the point made by PATEL JA in the Supreme Court authority cited. In Prosecutor General v Edmore Makarichi & Ors, HH 502/23, chikowire J, after citing the same Supreme court authority, remarked, at p 3 of his judgment: “In this jurisdiction, a decision of the Supreme Court binds this court. Accordingly, in line with Firstel Cellular (supra) it follows that the person before whom the affidavit was signed (the Commissioner of Oaths) should be clearly identified as should be the office or capacity in which he or she acts as a Commissioner of Oaths.” The learned judge then went on to elaborate on what is expected of commissioners of oaths when commissioning affidavits, at p6: “In a nutshell, care should have been taken in composing the supporting affidavits and in ensuring that they were properly deposed to. The dates and places of such depositions should have been clearly reflected as well as the respective identities of the commissioners of oaths and the offices or capacities of the persons in terms of which they acted as commissioners of oaths. For example, if a person is a commissioner of oaths by virtue of being a duly admitted and practising notary public in Zimbabwe, the following information would be reflected on the commissioner of oaths’ stamp: his or her full name, that the person is a legal practitioner, conveyancer (if such be the case), notary public and commissioner of oaths. The description as notary public would be evidence that the person signed the affidavit as an ex officio commissioner of oaths. For certainty, such thorough commissioners of oaths would also reflect, on their stamp, the law firms under which they practice their profession and their physical address. Immediately above the designation of the commissioner of oaths, the commissioner would then append his or her signature. For police officers who are appointed either as commissioners of oaths or as justices of the peace and hence ex officio commissioners of oaths I would suggest that the commissioner of oaths stamp bears such person’s full names, their rank in the Zimbabwe Republic Police, their force number, the designations as justice of the peace and commissioner of oaths as well as the name and address of the police station, district, provincial or head office where the person is based. Such commissioner of oaths would, in terms of the law, have to administer the oath and sign the affidavit in the presence of and at the same time as the deponent to that affidavit. Finally, the date of deposition to the affidavit must appear on the affidavit itself. What was placed before me as supporting affidavits fell far short of the legal requirements. They were not affidavits at all.” This approach by the courts goes to show that the credentials of a commissioner of oaths are not a peripheral or inconsequential issue. They touch on a fundamental aspect, being the authenticity of the affidavit. Once this is impugned, an application which the affidavit purports to support is vitiated. In the matter before chikowero J, the impugned credentials affected the validity of supporting affidavits. In casu, it is the founding affidavit itself that is affected. In the circumstances, there is no valid application before the court. The proper course of action to take is to order that it be struck off the roll, without going into the merits thereof. Since this point has disposed of the matter this way, there is no need to deal with the other preliminary points. In the result, it is ordered that; The application be and is hereby struck off the roll.The applicant bears the 1st respondent’s costs MANYANGADZE J: …………………………………… Nyamupfukudza & Partners, applicant’s legal practitioners Madzima, Chidyausiku Musetu, first respondent’s legal practitioners 3 HH 242-25 HCH 5281/24 3 HH 242-25 HCH 5281/24 MAXWELL MUNONDO versus NEW CENTURY PRODUCTIONS (PVT) LTD and SHERIFF OF THE HIGH COURT OF ZIMBABWE and STANLEY CHAGAKA and ROLAND REMUNYANGA and MAKOBO MACHEKA and KNIFE MUYAMBO and PARDON MATARE and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS, AGRICULTURE, FISHERIES, WATER, CLIMATE AND RURAL DEVELOPMENT HIGH COURT OF ZIMBABWE MANYANGADZE J HARARE, 9 December 2024 & 4 April 2025 Urgent chamber application A Nyamufukudza, for the applicant C Marabura, for the 1st Respondent MANYANGADZE J: The applicant seeks stay of execution of a default judgment, pending an application for rescission of the default judgment. The first respondent obtained a default judgment against the applicant, under Case No. HCH 2620/24, on 6 November 2024, in terms of which the applicant and all those claiming occupation through him were ordered to vacate a portion of Garth Farm in order to pave way for the construction of a road. The applicant has filed an application for rescission of that judgment. Pending the determination of the application for rescission, the applicant seeks the relief of stay of execution. In its notice of opposition, the first respondent has raised three points in limine. These are that; The founding affidavit is fatally defective. The applicant is approaching the court with dirty hands. The applicant withdrew its urgent chamber application wherein the relief of stay of execution was sought. Defective Founding Affidavit The first respondent avers that the founding affidavit was not properly commissioned. The identity and status of the commissioner of oaths is not known. On the authority of Firstel Cellular (Pvt) ltd v NetOne Cellular (Pvt)Ltd SC 1/15, the first respondent contends that the founding affidavit should have clearly identified the person before whom it was deposed. It should indicate the office, capacity or status in which the person acts as a commissioner of oaths. These details are not disclosed. The applicant’s response to this point is in para 2 of his answering affidavit. He avers that a commissioner of oaths is appointed in terms of s 6 of the Justice of Peace and Commissioner of Oaths Act [Chapter 7:09]. He further avers that nowhere in the Act does it say that the commissioner of oaths shall disclose his status. The status is already known by virtue of the register kept at by the Ministry of Home Affairs, which the first respondent has not bothered to explore. The applicant does not deal with this issue in his heads of argument. He however deals with it through oral submissions made by his legal practitioner. He maintains the submissions made in the answering affidavit. These are to the effect that a register of commissioners of oaths is kept at the Ministry of Home Affairs. By this submission, he implies that if the first respondent has any doubts, he should check at the offices of the Ministry of Home Affairs. The Supreme Court pronounced itself clearly on this issue in Firstel Cellular (Pvt) Ltd, supra. patel JA (as he then was), stated, at p5: “It is common cause that there is no specific legislation regulating the issue in this jurisdiction and that the matter is one that is governed by practice. In that regard, what is required is that any stamp that is used to designate a commissioner of oaths should clearly identify the person before whom an affidavit is deposed and the office or capacity in which he or she acts as a commissioner. In casu, it is not disputed that Raymond Moyo is a legal practitioner and a notary public and, as such, a recognised commissioner of oaths. The respondent has therefore verified its cause of action in an affidavit, deposed by its functionary duly authorised thereto, before a clearly identified commissioner of oaths. That, in my view, suffices for the intended purpose of adducing evidence under oath and renders the validity of the respondent’s founding affidavit manifestly impervious to challenge.” The position is therefore clear that the commissioner of oaths ought to disclose his identity and status. It must be clear, ex facie the document commissioned, in what capacity he exercises the function of commissioner of oaths. What saved the day in the Firstel Cellular (Pvt) Ltd case, supra, is that the commissioner of oaths was a well-known legal practitioner. That is not so in casu. What is there is the name Ignatius Noah Kajengo, an address somewhere in Mabelreign, and a cell phone number. It is not known who Ignatius Noah Kajengo is and in what capacity he acts as commissioner of oaths. The applicant asserts that the first respondent ought to have checked the register kept at the Ministry of Home Affairs. Going by the Supreme Court authority cited, the founding affidavit falls short of the basic requirements of a validly commissioned affidavit. The capacity and official designation of the commissioner of oaths ought to be disclosed. This must not be searched at the Ministry of Home Affairs as suggested by the applicant. Such a search may only be conducted where one entertains some doubt on the credentials disclosed and seeks to impugn the credentials. The issue here is that the credentials are not disclosed at all. It is the failure to disclose the credentials that is vitiating the affidavit. That is the point made by PATEL JA in the Supreme Court authority cited. In Prosecutor General v Edmore Makarichi & Ors, HH 502/23, chikowire J, after citing the same Supreme court authority, remarked, at p 3 of his judgment: “In this jurisdiction, a decision of the Supreme Court binds this court. Accordingly, in line with Firstel Cellular (supra) it follows that the person before whom the affidavit was signed (the Commissioner of Oaths) should be clearly identified as should be the office or capacity in which he or she acts as a Commissioner of Oaths.” The learned judge then went on to elaborate on what is expected of commissioners of oaths when commissioning affidavits, at p6: “In a nutshell, care should have been taken in composing the supporting affidavits and in ensuring that they were properly deposed to. The dates and places of such depositions should have been clearly reflected as well as the respective identities of the commissioners of oaths and the offices or capacities of the persons in terms of which they acted as commissioners of oaths. For example, if a person is a commissioner of oaths by virtue of being a duly admitted and practising notary public in Zimbabwe, the following information would be reflected on the commissioner of oaths’ stamp: his or her full name, that the person is a legal practitioner, conveyancer (if such be the case), notary public and commissioner of oaths. The description as notary public would be evidence that the person signed the affidavit as an ex officio commissioner of oaths. For certainty, such thorough commissioners of oaths would also reflect, on their stamp, the law firms under which they practice their profession and their physical address. Immediately above the designation of the commissioner of oaths, the commissioner would then append his or her signature. For police officers who are appointed either as commissioners of oaths or as justices of the peace and hence ex officio commissioners of oaths I would suggest that the commissioner of oaths stamp bears such person’s full names, their rank in the Zimbabwe Republic Police, their force number, the designations as justice of the peace and commissioner of oaths as well as the name and address of the police station, district, provincial or head office where the person is based. Such commissioner of oaths would, in terms of the law, have to administer the oath and sign the affidavit in the presence of and at the same time as the deponent to that affidavit. Finally, the date of deposition to the affidavit must appear on the affidavit itself. What was placed before me as supporting affidavits fell far short of the legal requirements. They were not affidavits at all.” This approach by the courts goes to show that the credentials of a commissioner of oaths are not a peripheral or inconsequential issue. They touch on a fundamental aspect, being the authenticity of the affidavit. Once this is impugned, an application which the affidavit purports to support is vitiated. In the matter before chikowero J, the impugned credentials affected the validity of supporting affidavits. In casu, it is the founding affidavit itself that is affected. In the circumstances, there is no valid application before the court. The proper course of action to take is to order that it be struck off the roll, without going into the merits thereof. Since this point has disposed of the matter this way, there is no need to deal with the other preliminary points. In the result, it is ordered that; The application be and is hereby struck off the roll. The applicant bears the 1st respondent’s costs MANYANGADZE J: …………………………………… Nyamupfukudza & Partners, applicant’s legal practitioners Madzima, Chidyausiku Musetu, first respondent’s legal practitioners