Darcal (Private) Limited v Minister of Lands, Agriculture, Fisheries, Water and Rural Development N.O and Others

The applicant, Darcal (Private) Limited, was the owner of Atherstone Farm in Insiza district. The farm was gazetted on 29 June 2001 for land reform purposes. The applicant reached an agreement with the 1st respondent (Minister) to offer 4,046.94 hectares for resettlement while retaining use of 2,334.6432 hectares. The applicant was paid for improvements on the allocated portion. On 12 March 2015, the 3rd respondent (Insiza District Lands Committee) withdrew the agreement and allocated the retained portion to new farmers who subsequently moved onto the property. Appeals to the 1st and 2nd respondents were unsuccessful. The applicant brought a review application challenging the 1st respondent's dismissal of the appeal on grounds of unlawfulness, unreasonableness, and violation of constitutional rights. The respondents raised a preliminary objection that there was no valid application before the court because the Commissioner of Oaths failed to endorse the date on which the oath was administered on the founding affidavit.

• Whether a founding affidavit is valid when the Commissioner of Oaths fails to endorse the date on which the oath was administered
• Whether the absence of the Commissioner's date on an affidavit defeats the application
• Whether contemporaneity of the oath-taking process can be ascertained in the absence of the Commissioner's date
• Which party bears the burden of proving lack of contemporaneity in the administration of an oath

1. The point in limine was upheld. 2. The matter was struck off the roll with costs.

An affidavit is invalid if the Commissioner of Oaths fails to endorse the date on which the oath was administered. For an affidavit to be valid, the deponent must take the oath in the presence of the Commissioner of Oaths, both must sign in each other's presence, and the Commissioner must endorse the date on which the oath was administered - these acts must occur contemporaneously. The purpose of requiring the Commissioner's date is to enable the court to ascertain that the oath was properly administered in accordance with the law. Without the Commissioner's date, the court cannot ascertain contemporaneity, and the affidavit is invalid. Where an affidavit speaks for itself regarding the absence of the Commissioner's date, the burden is on the party relying on the affidavit to demonstrate contemporaneity, not on the objecting party to prove lack of contemporaneity.

The court noted that where the deponent's date differs from the Commissioner's date, the document would speak for itself and would not require proof of lack of contemporaneity. The court also observed that the 3rd respondent's failure to file papers indicated its decision to abide by the court's decision. The court made reference to the hierarchy of judicial precedent, noting that a decision by two judges is binding as compared to a decision by a single judge. The court also noted that the second point in limine regarding jurisdiction was abandoned by the respondents after the court posed questions to counsel, though no further reference was made to the substance of this abandoned point.

This case reinforces the strict formal requirements for valid affidavits in Zimbabwean civil procedure. It confirms that both the deponent and the Commissioner of Oaths must endorse dates on the affidavit to demonstrate contemporaneity of the oath-taking process. The judgment clarifies that the absence of the Commissioner's date is fatal to an application, regardless of whether the deponent's date is present. It also establishes the hierarchy of precedent, confirming that decisions by two or more judges and Supreme Court decisions are binding over single judge decisions. The case has significant implications for legal practice, requiring strict compliance with formal requirements in the commissioning of affidavits, and demonstrates that procedural irregularities can be fatal to substantive applications, even those raising important constitutional and administrative law issues.