Zvidzani Gladman Ushe v City of Bulawayo and Nqobile Ngwenya and Sharon Rose Ruvarashe Ngwenya and Registrar of Deeds N.O.

### Preamble
1
HB 73/22
HC 1135/20
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ZVIDZANI GLADMAN USHE

Versus

CITY OF BULAWAYO

And

NQOBILE NGWENYA

And

SHARON ROSE RUVARASHE NGWENYA

And

REGISTRAR OF DEEDS N.O.

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 7 & 17 MARCH 2022

Opposed application

Advocate P. Dube for applicant

Ms C. Bhebhe for 1st respondent

J. Mugove for 2nd and 3rd respondents

MOYO J:	This is an application for rescission of judgment in terms of Rule 449.  The respondents raised points in limine one of which concerns the founding affidavit.  That the founding affidavit is not properly commissioned and that therefore there is no affidavit before this court.

A look at the founding affidavit shows that at page 12 of the bound record of proceedings there is a paragraph 22 to the founding affidavit which is the last paragraph and the prayer as well as the applicant’s details.  That page is not signed nor is it commissioned.  There is, however a page 13 to the founding affidavit which no longer contains paragraph 22 of the founding affidavit but which now has the prayer clause and the details of the applicant and the Commissioner of Oaths.  The 2nd respondent’s counsel had initially argued that the blank page means that there is no affidavit before the court and that therefore the application is fatally defective.  During the course of her submissions, it was noted that the affidavit in the court record has a photocopied page where it was allegedly commissioned and that there is in fact no original affidavit in the court record.  2nd respondent’s counsel then further argued that if there is a photocopy of the affidavit without an original then there is no affidavit before the court.

There are clear problems regarding the founding affidavit filed in this application.  To start with, it has 2 pages one being a blank page where the affidavit should have been commissioned and one which is a photocopy.  There is therefore no original affidavit filed with this court.

The applicant although the objection was raised to the founding affidavit’s validity, did not allude to that fact in the answering affidavit.  Neither was this issue dealt with in the heads of argument.  An explanation was definitely required vis-à-vis pages 12 and 13 of the application as the affidavit has 2 pages one blank with a paragraph 22 and one with no paragraph 22, authenticated but being a copy.

In arguing the matter, applicant’s counsel submitted that there is nothing wrong with the founding affidavit, did not endeavor to explain and made no effort to even tender from the bar a properly authenticated affidavit before the court so that from the outset the court works with valid and properly authenticated documents.  No indulgence or condonation was sought together with a reasonable explanation as to why the founding affidavit was seemingly irregular and flawed.

It follows that without a properly authenticated founding affidavit the application is clearly limping and cannot be heard in that state.

It is imperative on legal practitioners to mount properly drafted applications and follow the rules of this court.  Where a party fails for some reason to adhere to the rules of this court, a reasonable explanation must surely be proffered together with a bid to be condoned so that a party or a matter is properly before the court.  It is not proper to ignore a clear anomaly and forge ahead without seeking to make amends.  I find that the founding affidavit is not properly commissioned, both by the fact that there is a blank page with a paragraph 22 and another page wherein there is no paragraph 22 but which is also a copy of some original that was not tendered before the court.

Again, in the absence of any explanation as to this anomaly despite the matter having been raised by the 2nd respondent at an early stage in the proceedings, and in the absence of an application for condonation, explaining the flawed affidavit, I find that there is no proper founding affidavit before me and therefore the application is fatally defective.  I agree with the respondents that the matter should then be struck off the roll.  I will not deal with the rest of the points in limine raised by the respondents for those points would only become relevant if there was a valid application before me.  Having found that the application is fatally defective there is no need to deal with the rest of the points in limine in my view I accordingly uphold the point in limine vis-à-vis the absence of a valid founding affidavit.

It is for these reasons that the application is struck off the roll with costs.

Messrs Sibanda Commercial Lawyers c/o Masiye-Moyo & Associates, applicant’s legal practitioners

Coghlan & Welsh respondent’s legal practitioners