Christine Tsitsi Chizana v Shepherd Kembo and Peter Mitawa Saope

In January 2013, the applicant alleged she entered into a verbal agreement with the first and second respondents to obtain a loan facility of $15,000 from the Agricultural Bank of Zimbabwe, to be shared equally among the three parties at $5,000 each, with repayment on a pro rata basis. The second respondent signed as surety for the loan, and the applicant claimed the first respondent agreed to be a co-signatory for security purposes. The loan was obtained in the applicant's name on 10 January 2013. When the Agricultural Bank sued for repayment, the second respondent repaid the entire loan amount of $35,000 (including interest and expenses) on his own. On 28 April 2016, the second respondent issued summons against the applicant in case HC 3419/16 claiming $35,000 for the loan repayment he made. On 17 October 2016, the applicant applied for joinder of the first respondent to HC 3419/16, arguing he should share liability as he benefited from the loan proceeds. Both respondents opposed the joinder application, denying the existence of any verbal agreement and denying they received any benefit from the loan. The first respondent stated he only signed for withdrawal of money for the second respondent's security, and that the applicant was the sole beneficiary who used the funds to buy farming materials from his company, Globavale Investments (Pvt) Ltd.

• Whether the applicant established a prima facie case for joinder of the first respondent to the main action
• Whether the founding affidavit contained sufficient evidence to support the claim that the first respondent was party to a verbal loan agreement
• What evidence is required to prove the existence of a verbal agreement when it is denied by the other party
• Whether documents attached to an answering affidavit (rather than the founding affidavit) can be relied upon to establish a case for joinder

The application for joinder was dismissed with costs on the ordinary scale.

An application for joinder stands or falls on the founding affidavit, which must contain all essential facts and proper evidence to establish a prima facie case. Where a party alleges a verbal agreement that is denied by the respondents, mere allegations are insufficient; the applicant must adduce proof of activities confirming the existence of the alleged agreement. Vague, unauthenticated documents without proper certification, stamps, or clear indication of origin cannot form a sufficient basis for granting joinder. Documents and evidence introduced for the first time in an answering affidavit cannot be relied upon to establish the applicant's case, as this denies respondents the opportunity to respond to such evidence. When claiming that a party benefited from loan proceeds, documentary proof such as bank transfers showing movement of funds to that party is necessary to substantiate the claim.

The court observed that it is common knowledge that bank deposits can be made by anyone, and therefore deposits by a related party do not necessarily indicate joint operation of an account or benefit from loan proceeds. The court noted that if the loan proceeds were truly shared equally among three parties, one would expect the applicant to admit liability for only one-third of the repayment amount rather than the entire sum, and the fact that she admitted owing the entire $35,000 suggested she knew she was the sole beneficiary of the loan. The court also commented on the incomplete and suspicious nature of the loan facility agreement attached to the answering affidavit, which contained only the first and last pages with an incomplete sentence, raising questions about why the complete agreement was not provided.

This case is significant in Zimbabwean civil procedure for reinforcing the fundamental principle that an application must stand or fall on its founding affidavit. It demonstrates the strict evidentiary requirements for joinder applications, particularly where the basis of joinder rests on an alleged verbal agreement that is disputed. The case illustrates that vague, unauthenticated documents and unsupported allegations are insufficient to establish a prima facie case for joinder. It also clarifies that applicants cannot remedy deficiencies in their founding affidavit by introducing new evidence in answering affidavits, as this denies respondents the opportunity to respond. The judgment emphasizes the importance of documentary proof (such as bank statements showing fund transfers) when alleging that parties benefited from loan proceeds, and that mere deposits into an account do not prove joint operation or benefit from loan withdrawals.