Claudius Mapedzamombe v Farai Chauke and Others

The applicant, Claudius Mapedzamombe, brought an application to strike out Farai Chauke's (first respondent's) notice of opposition in HC 9176/15. The applicant's basis for the application was that the second respondent, Emily Mhini, should have personally deposed to the affidavit rather than the first respondent. The first respondent brought to the court's attention that an order for perpetual silence had been granted against the applicant in relation to the property in question (HH 130/90). The applicant had not sought nor been granted leave of court before filing the present application, in breach of the perpetual silence order. The applicant admitted the existence of the order but claimed it was obtained through falsehoods, referring to Emily Mhini's conviction for perjury and defeating/obstructing the course of justice in December 2002. The applicant had previously been warned by the court (particularly in HH 124/14 by Mathonsi J) about following incorrect procedure by proceeding without obtaining leave.

• Whether the first respondent was entitled to depose to an affidavit in opposition on behalf of the second respondent under Rule 227(4)(a) of the High Court Rules
• Whether the applicant could proceed with the application without first obtaining leave of court, given the existing order for perpetual silence against him
• Whether the court should entertain an application filed in breach of a perpetual silence order

The application was dismissed with costs.

An applicant who is subject to an order for perpetual silence cannot bring an application without first obtaining leave of court to do so. The court will not entertain the merits of an application brought in breach of such an order. Rule 227(4)(a) of the High Court Rules permits an affidavit to be made by a person other than the party themselves, provided that person can swear to the facts or averments set out therein and has personal knowledge of the matters deposed to. Courts must act as vigilant sentinels of their orders and enforce compliance to maintain respect for the administration of justice.

The court observed that the applicant had repeatedly been warned by the court about following incorrect procedure and that he should learn to do that which is right in view of the orders previously made against him. The court emphasized, citing South African authority, that the administration of justice would be brought into disrepute if persons who deliberately disobey court orders with impunity were not severely punished, and that respect for court orders is the hallmark of any civilized system of civil justice. The court noted it was not even necessary to entertain the merits of the application given the procedural breach.

This case reinforces the importance of compliance with court orders, particularly orders for perpetual silence, and the requirement to obtain leave of court before bringing applications in breach of such orders. It demonstrates the High Court's willingness to enforce procedural requirements and protect the integrity of its orders. The case also clarifies the application of Rule 227(4)(a) regarding who may depose to affidavits in court proceedings, confirming that a person with personal knowledge of the facts may do so on behalf of a party.