Dairibord Zimbabwe (Private) Limited v Comfort HR Strategies

The applicant (Dairibord Zimbabwe) instituted proceedings by way of application under Rule 75(1) of the High Court Rules for dismissal of the respondent's (Comfort HR Strategies) action in case number HC 2591/20 on grounds that the claim was frivolous and vexatious. The application was filed on 15 September 2020 and served on 16 September 2020. The respondent filed a notice of opposition with an opposing affidavit on 30 September 2020. On 13 October 2020, the applicant filed an answering affidavit raising certain preliminary points. The respondent filed a supplementary opposing affidavit on 28 October 2020 but later withdrew it on 5 November 2020. Three preliminary points were raised: (1) that the respondent's opposing affidavit was invalid because it was commissioned by Mr Trust Manjengwah of Wintertons, alleged to be a correspondent attorney for the respondent; (2) that the filing of the supplementary affidavit without leave violated Rule 235; and (3) that the applicant's answering affidavit was unprocedural.

• Whether an opposing affidavit is invalid when commissioned by a commissioner of oaths who allegedly has an interest in the matter by virtue of being a correspondent attorney
• Whether the filing of a supplementary affidavit without leave of court violates Rule 235 of the High Court Rules
• Whether an answering affidavit may be filed in response to an opposition to an application brought under Rule 75 of the High Court Rules

All preliminary points raised by the parties were dismissed. Costs were ordered to be in the cause.

The binding legal principles established are: (1) The party alleging that a commissioner of oaths has an interest in a matter bears the onus of proving such interest with evidence beyond mere assertion or circumstantial connection such as the use of an address for service. (2) Under Rule 76 of the High Court Rules, Order 32 applies to applications brought under Rule 75 (applications for dismissal of frivolous or vexatious actions), which means that Rule 234 permits the filing of answering affidavits in such applications where the respondent has filed a notice of opposition and opposing affidavit. (3) Supplementary affidavits filed without leave of court in contravention of Rule 235 are improperly before the court.

The court noted that in the strict sense, a correspondent attorney cannot commission an affidavit deposed to by a party on whose behalf they act, but this observation was not determinative as the applicant failed to prove that Mr Manjengwah was in fact acting as correspondent attorney. The court also observed that the respondent's lawyers being based in Harare where they had easy access to the court made it less likely that they would need correspondent attorneys in the same city.

This case provides guidance on the application of procedural rules in the High Court of Zimbabwe, particularly: (1) the evidentiary burden required to prove that a commissioner of oaths has an interest in a matter sufficient to invalidate an affidavit under Section 2(1) of SI 183/89; (2) the application of Rule 76 which subjects Rule 75 applications to the general provisions of Order 32, including the right to file answering affidavits under Rule 234; and (3) the procedure to be followed when parties seek to file supplementary affidavits. The judgment clarifies that the use of a law firm's address for service alone does not automatically establish that members of that firm have a disqualifying interest when commissioning affidavits.