Central Africa Building Society v Finormacg Consultancy (Pvt) Ltd and Retired Justice L. G. Smith

Finormacg Consultancy (Pvt) Ltd filed a court application seeking to set aside an arbitral award made by Retired Justice L.G. Smith N.O under Article 34 of the Arbitral Model Law on Arbitration. Both parties had claims against each other which were dismissed by the arbitrator on 12 November 2014 with no order as to costs. The main application was set down for hearing on 4 June 2015 but was postponed sine die by consent to allow determination of an intervening application. Central Africa Building Society (CABS), as respondent in the main case, filed an application on 1 June 2015 seeking condonation for late filing of heads of argument and leave to file an additional affidavit by Kevin Terry. At the hearing, the applicant withdrew the application for condonation regarding late filing of heads of argument due to miscalculation of dates. The court was left to determine only the application for leave to file the supplementary affidavit. CABS had irregularly filed Kevin Terry's affidavit on 5 May 2015 without first obtaining leave of court as required by Rule 235 of the High Court Rules.

• Whether leave should be granted to file a supplementary affidavit after the answering affidavit has been filed
• What factors should a court consider when exercising discretion to allow filing of additional affidavits
• Whether the irregular filing of an affidavit before obtaining leave of court renders it a nullity
• Whether the applicant provided a satisfactory explanation for not filing the affidavit timeously
• Whether admission of the supplementary affidavit would cause prejudice to the respondent
• Whether the content of the proposed supplementary affidavit is relevant to the main issues

1. The applicant (CABS) is granted leave to file and serve Kevin Terry's affidavit sworn on 24 April 2015 as a supplementary opposing affidavit within 5 days of the order. 2. The first respondent may file a response to Kevin Terry's affidavit within 5 days of service. 3. Either party may file supplementary heads of argument within 15 days of the order. 4. The applicant shall pay the costs of this application, and if awarded costs in the main application, shall not recover any costs connected with the irregular filing of Kevin Terry's affidavit on 5 May 2015.

Leave to file a supplementary affidavit after the answering affidavit may be granted where: (1) the applicant provides a proper and satisfactory explanation for not placing the information before the court earlier; (2) there is an absence of mala fides in the application; and (3) filing the supplementary affidavit will not cause prejudice that cannot be remedied by a costs order. The court should exercise greater flexibility when the respondent (rather than the applicant) seeks such leave, as respondents have only one opportunity to file an opposing affidavit while applicants file both founding and answering affidavits. Filing an affidavit before obtaining leave as required by Rule 235 is irregular and the affidavit should be treated as pro non scripto, though the court may still entertain a proper application for leave filed subsequently. The discretion should be exercised to promote the interests of justice and ensure all relevant facts are before the court, rather than rigidly adhering to procedural rules.

Chitapi J suggested that Rule 235 could be amended to be more explicit by substituting 'may' with 'shall' or by following Rule 83 to provide that the registrar should not accept for filing any further affidavit without leave of court. The judge also expressed the view that applications for leave to file supplementary affidavits should ideally be heard simultaneously with the main application by the same judge, as this would be more efficient and holistic, avoiding the waste of judicial time. The judge emphasized the importance of judicial transparency regarding delays, noting that where judgment has been delayed and a follow-up enquiry is made, it is good practice for the judicial officer to acknowledge and explain the delay to avoid imputation of improper motives, particularly in an environment where corruption allegations are common. The judgment referenced the Constitutional obligation under Section 115(1)(b) and the Judicial Service (Code of Ethics) Regulations 2012 regarding judicial efficiency and promptitude.

This case provides important guidance on the procedure and considerations for filing supplementary affidavits in Zimbabwean civil procedure. It clarifies that Rule 235 requires leave before filing additional affidavits after the answering affidavit, and filing without such leave is irregular and renders the affidavit pro non scripto. The judgment establishes that courts should adopt a more liberal approach when respondents (as opposed to applicants) seek leave to file supplementary affidavits, recognizing that applicants have the advantage of filing both founding and answering affidavits. The case emphasizes that the interests of justice should prevail over rigid adherence to procedural rules where there is reasonable explanation, no mala fides, relevant evidence, and no irremediable prejudice. The judgment also addresses judicial delay and transparency, acknowledging the constitutional obligation under Section 115(1)(b) for the judiciary to act with reasonable promptitude and the importance of explaining delays to maintain public confidence in the administration of justice.