This
is an opposed application where the applicant seeks that the first
respondent be declared to be in contempt of High Court order
in HC10776/13. The applicant also seeks that should the first
respondent fail to comply with paragraphs(e) and (f) of the judgment
in HC10776/13 within seven days of the granting of this order, then
its Managing Director be committed to Harare Remand Prison for an
indefinite term until the first respondent complies.
In
terms of paragraphs(e) and (f) of HC10776/13 this court ordered the
following;
“(e)
IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to
cause the determination of the applicants' basic annual salary for
purposes of the calculation of applicants pensionable emoluments,
from the date of this judgment onwards, in accordance with the TSSPF
Rules, and that, this obligation shall be discharged, in full, within
(90) ninety days of the date of this order.
(f)
CONSEQUENT TO THE ABOVE DECLARATION TO THE ABOVE DECLARATIONS,
TRIANGLE is hereby directed, within (90) ninety days of this order,
to recommence making its contributions, and to deduct the applicants'
contribution for onward transmission to the TSSPF, towards the costs
of providing benefits towards the applicants in terms of the TSSPF's
rules
as determined by the TSSPF's actuary, and approved by the TSSPF
Trustees, EXCLUDING any arrears which arose between January 2009 and
the date of this order until such time as the TSSPF has been
terminated in accordance with the TSSPF Fund Rules.”
Counsel
for the first and third respondents raised points in limine.
(i)
Firstly, he attacked the validity of the founding affidavit.
It
was his submission that such affidavit was the same affidavit filed
in HC11975/15, and, as such, cannot be admitted before these
proceedings.
Such
point was raised for the first time in the first and third
respondents' heads of argument. The applicant took issue with that.
It is the applicant's contention that such challenges should have
been initially taken in the opposing affidavits. This, the
applicant's counsel argued should have been done so as to accord
the applicants an opportunity to deal with the issue in their
answering affidavits.
The
question of validity of a founding affidavit is a legal point and not
a factual one. Factually the affidavit speaks for itself. The court
can simply look at the founding affidavit and ascertain the facts.
Its validity becomes a legal point.
It
is trite that legal points can be raised at any time during the
proceedings.
The
issue of the validity of the founding affidavit was raised in the
first and third respondents' heads of argument affording the
applicant to deal with the issue in their own heads. See Barkhuizen v
Napier (CCT 72105) (2007) ZACC 5 or 2007 (5) SA 323 (CC).
On
page 8 of the proceedings is the signature page of the affidavit. It
is apparent the affidavit was sworn to in Triangle on 30 November
2015. That affidavit was the one used in the application in
HC11975/15 which application was withdrawn on 18 December 2015. The
affidavit of the 30th
of
November
2015 did not include the third respondent. The third respondent was
then added after the 30th
of
November 2015 in the present case. It follows that the founding
affidavit was never commissioned. No case was however made against
the third respondent.
It
is trite that an application stands or falls on its founding
affidavit. No case was made against the third respondent in the
applicants' founding affidavit. See Bowman N.O. v De Souza
Roldao1988 (4) SA 326 T…, where the court said:
“In
limine, Mr Zeiss, who appears for the respondent, argued that he has
not made out a case in the founding affidavit to entitle him to any
relief in terms of the notice of motion; he submits that there is a
material and fatal lacuna in the founding affidavit which cannot be
cured.”
Generally
speaking, an applicant must stand or fall by his founding affidavits,
he is not allowed to make out his case or rely upon new grounds in
the replying. See for example, Director of Hospital Services v
Ministry 1979 (1) SA 626 (A)…, where DIEMANT JA said the following:
“When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will look to
determine what the complaint is…,.”
The
founding affidavit should contain all facts upon which an applicant
relies in seeking relief. Courts will not normally allow or permit a
mere skeleton of a case sought to be supplemented in an answering
affidavit.
It
is trite that all facts and the basis of seeking a relief must be
established in the founding affidavit. See also Titty Bar and Bottle
Store (Pty) Ltd v ABC Garare (Pty) Ltd and Ors 1974 (4) SA 362 (T);
Pountas' Trustees v Lahanas 1924 WLD 67; Austerlands (Pvt) Ltd v
Trade and Investment Bank & 2 Ors SC92-05.
The
applicants' founding affidavit fails to allege any conduct by the
third respondent warranting the relief sought. Of major concern is
that certain additions were made to the founding affidavit but it is
clear that such changes were not countersigned by the applicants.
When
introduction of the third respondent as a party to these proceedings
was done, such affidavit with those changes was not commissioned by a
Commissioner of Oaths. Such founding affidavit fails to meet the
requirements of a valid affidavit. I am satisfied this matter cannot
proceed on the basis of an invalid founding affidavit and on the
basis of an affidavit which fails to disclose the facts relied upon
to obtain the relief sought.
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.
I
have not called the lawyer who prepared the papers to account and
therefore I shall not deal with allegations raised against such
lawyer.
In
the result, the applicants' founding affidavit is invalid and the
point in limine taken by counsel for the first respondent is well
taken. In the result, the application is dismissed with costs.
