Daniel Sibanda v Ray C. Ndhlukula and The Minister of Lands and Rural Resettlement

The applicant, Daniel Sibanda, brought an application for leave to bring a class action against the respondents in terms of section 85(1)(c) of the Constitution of Zimbabwe, alternatively in terms of the Class Actions Act [Chapter 8:17]. At the hearing, the first respondent raised two points in limine: (1) that the founding affidavit was fatally defective because it contained only a thumb print without explanation, with no indication that the commissioner of oaths satisfied himself that the illiterate deponent understood the contents; and (2) that there was a non-joinder of O. Connolly Pvt Ltd. The first respondent relied on South African statutory regulations governing the administration of oaths to support the argument about the defective affidavit.

• Whether an affidavit authenticated by a thumb print without explicit indication that the commissioner of oaths satisfied himself of the illiterate deponent's understanding is fatally defective under Zimbabwean law
• Whether South African regulations governing commissioners of oaths apply in Zimbabwe
• Whether non-joinder of a party (O. Connolly Pvt Ltd) renders proceedings fatal

Both points in limine raised by the first respondent were dismissed. The court ordered that the matter proceed to be set down and heard on the merits.

1. South African statutory regulations governing commissioners of oaths do not apply in Zimbabwe. 2. Under Zimbabwean law, the general requirements for commissioners of oaths are that they must be satisfied that the affidavit is by the deponent and that the deponent appends his signature (or thumb print) before the commissioner. There is no requirement that the commissioner record on the face of the document that he satisfied himself of the deponent's understanding or other matters. 3. In the absence of evidence to the contrary, the court must presume that a commissioner of oaths properly satisfied himself of all necessary matters before authenticating an affidavit. 4. Under Order 13 Rule 87 of the High Court Rules, non-joinder or misjoinder of a party does not and cannot render proceedings fatal.

The court observed that if the South African regulatory requirements were to be applied uniformly, even the first respondent's own affidavit would fail to meet those standards, as it merely stated "sworn to at Harare this 16th day of June 2015" without recording all the matters contemplated by the South African regulations. The court also noted that if the first respondent genuinely believed O. Connolly Pvt Ltd should be joined, they could have filed a chamber application seeking joinder before the matter was set down for hearing.

This case clarifies important principles regarding the authentication of affidavits in Zimbabwean civil procedure, particularly distinguishing Zimbabwean requirements from South African law. It establishes that South African statutory regulations do not apply in Zimbabwe and that commissioners of oaths in Zimbabwe are not required to explicitly record on affidavits that they satisfied themselves of certain matters. The case also reaffirms the principle that non-joinder of parties does not render proceedings fatal under the High Court Rules. The judgment is significant for practitioners in understanding the requirements for valid affidavits, particularly where illiterate deponents are involved, and in understanding the curative effect of procedural rules regarding joinder of parties.