The
first respondent's counsel submitted that the application does not
comply with the Justice of Peace and Commissioners of Oaths Act and
Regulations because it is not sworn to, declared, or attested to by a
Commissioner of the Oaths since it only contains a thumb print with
no explanation as to why there is a thumb print as opposed to a
signature and that there is nothing in the affidavit to show that the
Commissioner of Oaths satisfied himself that the deponent understood
the contents of the affidavit as he is illiterate.
The
Regulations cited by the first respondent's counsel, as well as the
legal texts, are all South African.
The
difference between the Zimbabwean disposition and that of the
Republic of South Africa is that whilst the South African Act
(Justice of the Peace and Commissioners of Oaths) has regulations
that stipulate on how the process of administering an oath should be
done, our Zimbabwean statute and its regulations do not delve into
specifics. The general broad requirement, as per our Zimbabwean law,
is that a Commissioner of Oaths should not authenticate a signature
where he has not seen the signatory sign, neither should he sign or
procure the signature of blank documents.
Both
counsels have not given me authority from Zimbabwe on that such
requirements are specific and binding as it follows that the
statutory requirements of a neighbouring country do not apply in
Zimbabwe. The requirements, in our law, are that the Commissioner of
Oaths must be satisfied that the affidavit is by the deponent and
that the deponent appends his signature before the Commissioner of
Oaths. It therefore follows that in the absence of evidence to the
contrary, the Commissioner of Oaths must have satisfied himself as
such. To say simply because it was not printed in black and white
then it should be inferred that it was not done would be
overstretching the requirement. For instance, the same South African
Regulations, regulations governing the administering of an oath or
affirmation, GN1258 1972, that the first respondent's counsel is
alluding to, in paragraph 2(1), provides that:
“Before
a commissioner of oaths administers to any persons the oath or
affirmation prescribed by regulations, he shall ask the deponent:
(a)
Whether he knows and understands the contents of the declaration;
(b)
Whether he has any objection to taking the prescribed oath; and
(c)
Whether he considers the prescribed oath binding on his conscience.”
This
requirement, in terms of South African law, is expected for both
literate and illiterate deponents.
The
Regulations never state that the Commissioner of Oaths should record
as such on the affidavit, and, if they do, I believe the first
respondent's opposing affidavit, if it were to be subjected to the
same test, would also fail for all it states is 'sworn to at Harare
this 16th
day of June 2015'.
It
therefore follows that we do not have such requirements in our own
law as to state that the Commissioner of Oaths, upon satisfying
himself of any fact, should then register as such on the face of the
document.
It
follows, therefore, that no finding can be made that the Commissioner
of Oaths who authenticated the applicant's affidavit did not
satisfy himself that the applicant, being illiterate, understood the
contents thereof; for why would he make a man swear to that which he
does not know or understand? In the absence of evidence to the
contrary, this court is enjoined to accept the affidavit as it is.
This
point in
limine
is not valid in my view and should thus be dismissed.
