Ex-Constable Thebe Meluleki 069816E v The Commissioner-General of Police and Others

The applicant, a former police constable, was discharged from the Zimbabwe Republic Police. She brought an application seeking (a) a declaration that the alleged refusal or failure of the respondents to furnish her with reasons for her discharge was unlawful, and (b) the setting aside of her discharge as wrongful and unlawful. The application was opposed by the first respondent. At the hearing, the applicant raised two objections in limine to the respondent's opposing affidavit: (1) that the affidavit was not properly commissioned because the commissioner of oaths' stamp stated "Certified true copy of original"; and (2) that the commissioner of oaths (Ephraim Mukucha) was the legal practitioner for the respondents. The first respondent also raised a point in limine that the application was in substance one for review and ought to have complied with Order 33 of the High Court rules.

• Whether an affidavit is invalid when the commissioner of oaths uses a stamp that includes the words 'Certified True Copy of Original'
• Whether an affidavit is invalid when commissioned by a legal practitioner employed in the Attorney-General's Office (Civil Division) but not handling the specific case
• Whether the application constituted a review application requiring compliance with Order 33 of the High Court rules
• The proper approach to objections in limine and when costs on an attorney-client scale may be awarded

1. The objections in limine raised by the applicant are dismissed. 2. The applicant shall pay the costs occasioned by the raising of the points in limine on the attorney-client scale.

1. An affidavit is not invalid merely because the commissioner of oaths uses a stamp containing the words 'Certified True Copy of Original', provided the document is the original affidavit (not a photocopy) and the commissioner of oaths is clearly identified. 2. There is no legislative requirement in Zimbabwe that a commissioner of oaths must use a stamp; authentication is achieved through the signature appended after administering the oath. 3. What is required for valid commissioning is that any stamp used should clearly identify the person before whom the affidavit is deposed and the office or capacity in which they act as commissioner. 4. A legal practitioner employed in the Attorney-General's Office who is not the legal practitioner handling a specific case is not disqualified from acting as commissioner of oaths for affidavits in that matter; such a person is a public officer, not 'the legal practitioner for the respondent'. 5. A point in limine that requires inquiry into the substance of an application pertains to the merits and should not be raised in limine.

Zhou J made strong obiter observations criticizing what the court described as an 'unprecedented obsession with the raising of misconceived points in limine which is permeating and pervading the legal profession'. The court stated that this approach to litigation must be censured and discouraged by awarding costs against those who unnecessarily delay matters through raising unnecessary objections to avoid dealing with the substance of disputes. The court went further to warn that 'in future the court might have to consider mulcting the legal practitioners who raise unnecessary points in limine', signaling judicial willingness to personally penalize legal practitioners for such conduct. The court was particularly critical of Mr Mugiya for persisting with objections despite having cited authority (Firstel Cellular) that resolved the issue against his position.

This case is significant for establishing clear principles regarding the validity of affidavits in Zimbabwean civil procedure. It confirms that: (1) there is no specific legislative requirement for how a commissioner of oaths must stamp documents, and authentication is achieved through signature; (2) a stamp containing the words 'Certified True Copy of Original' does not invalidate an original affidavit where the commissioner of oaths is clearly identified; (3) a legal practitioner employed in the Attorney-General's Office who is not handling a specific matter is not disqualified from acting as commissioner of oaths for affidavits in that matter. The case is also notable for its strong judicial criticism of the practice of raising misconceived points in limine and signals the court's willingness to award punitive costs (on an attorney-client scale) to discourage such practices that unnecessarily delay litigation.