CHEDA J: This is an urgent chamber
application. Applicants filed the above
application seeking to stay execution of ejectment and warrant of execution
issued by this court in case number HC 3057/09, Xref Number 1994/09.
This matter is based on a catalogue
of numerous applications and counter-applications which have been filed with
this court. In brief, the parties are
all related and this includes the directors.
First respondent is holding an
eviction order issued by this court, albeit applicants instance that such order
was erroneously granted.
The matter was set down for
hearing. On the day of the hearing, Mr Mazibisa for first respondent raised
a point in limine. He
attacked the legality of the “affidavit(s)” of the two applicants. Applicants' affidavit was deposed to by both
of them with both names appearing on the same page(s) and signed on the same
date by both of them and before the same commissioner of oaths, a Mr Lison
Ncube. It is Mr. Mazibisa's argument that in essence there is no application
before the court because the affidavit was irregularly deposed to and signed by
applicants.
Mr
Sibanda argued that there is no law which prohibits two deponents from
signing one affidavit as long as they are deposing to the same facts. He went further and argued that this was done
for both their convenience and that of the court/Judge. It is for the above reason, he argued, that
the court should not attach any importance on Mr Mazibisa's objection. The
rules of this court provide as follows:-
“B - General provisions for all applications
227- Written
applications, notices and affidavits.
(1) ---
(2) ---
(3) ---
(4) An affidavit filed with a written application—
(a) shall be made b y the applicant or
respondent, as the case may be, or by a person who can swear to the facts or
averments set out therein; and
(b) ---
In addition
“Rule 230 reads:-
230. Form of Court
application.
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.”
The rules are peremptory that there
should be one or more affidavits. There
is, therefore, a provision for more affidavits which should support the
founding affidavit should it be necessary to do so. I wonder how the commissioner of oaths
administered the oath on two people, at the same time. This, I have no doubt in my mind that if
indeed this was the position, he must have done it with some difficulty.
Suppose, there were ten deponents how was he going to deal with this
clearly surmountable task? In any event
what was wrong with the second applicant deposing to a supporting affidavit? In fact, it has always been the practice of
the courts internationaly to deal with one affidavit at a time. It is clear to me that the commissioner of
oaths did not properly administer the oath in this matter.
What should also be borne in mind is that an
affidavit filed of record takes the place of oral evidence and in that regard
it is practically impossible for two deponents to take a witness stand, take
oath and give evidence at the sametime.
This, in my opinion, is one of the reasons why applicants can not be
allowed to invent a new procedure for themselves and themselves alone.
I agree with Mr Mazibisa that the founding affidavit is unprecedented and a
novel to our legal system. The question then is, is there an
application for me to determine?
In
my opinion there is absolutely none, as the rules strictly require that an
application shall be established by one or more affidavits.
In light of the above, I find that
there is no application before me to consider.
The famous quotation by Lord Denning, that doyan of English Law,
to the effect “that you can not put something on nothing and expect it to
stand, it will fall”, is in all fours in this matter.
The point in limine
raised by respondent has merit. Respondent
has asked for costs at a higher scale. I
have considered this application in that regard. The general rule with regards to costs is
that these courts are slow in awarding such costs. They can only do so where among other factors,
a party has been obdurate in his handling of a matter before the courts. Applicants together with their “commissioner
of oaths” engaged into some illegality.
They persisted with their wrong
procedure even at the time when it was pointed out to them during the
hearing.
I hold the view that this is a case
where I must exhibit my displeasure by awarding costs on a punitive scale. Accordingly this application is dismissed
with costs on an attorney-client scale.
Cheda
J.......................................................
Messrs
Job Sibanda and Associates' applicants' legal practitioners
Cheda and partners, 1st
respondent's legal practitioners
