Francis Roland Haisaid (in his capacity as the Executor of the Estate Late Stephen Omar Hayisa also known as Stephen Haisaid) v Oliver Masomera and The Master of High Court (N.O) and The Registrar of Deeds (N.O)

The applicant approached the High Court seeking revocation of Letters of Administration issued to the first respondent, cancellation of consent to sell immovable property granted to the first respondent, and reinstatement of his initial appointment as Executor of the deceased estate. The first respondent opposed the application and raised three points in limine: (1) the founding affidavit was fatally defective because it was not properly signed by the applicant but rather appeared to be signed by someone else using the letters "PP" (per procurationem); (2) the applicant adopted the wrong procedure as the complaint should have been brought by way of review under the Administration of Estates Act; and (3) the applicant lacked locus standi as he had already been removed from office as Executor. The applicant responded that the affidavit was properly attested to by a Commissioner of Oaths and accepted by the Registrar. Upon examination, the court found that the signature on the founding affidavit was preceded by "PP" and was completely different from the applicant's signature on his answering affidavit. The applicant claimed he had different signatures and that this was acceptable practice in England, but could not adequately explain why the founding affidavit signature ended with the letter "e" when none of his names ended with that letter.

• Whether a founding affidavit signed by someone other than the deponent using 'PP' (per procurationem) is fatally defective
• Whether an application can proceed when the founding affidavit is not properly sworn to by the applicant
• Whether costs on a legal practitioner and client scale are appropriate when an applicant persists with a defective application despite being fore-warned

The application was struck off the roll with costs on a legal practitioner and client scale against the applicant.

An application stands or falls on the founding affidavit. A founding affidavit that is signed by someone other than the deponent using "per procurationem" (PP) is fatally defective, and consequently there is no proper application before the court. An affidavit must be a sworn statement by a person with knowledge of what they are swearing to, and cannot be an affidavit in the name of an applicant that is sworn to or signed by a different person altogether. When a founding affidavit is fatally defective, the entire application is not properly before the court and must be struck off.

The court noted that had it been necessary to consider them, the first respondent had raised two other potentially valid points in limine: (1) that the applicant had adopted the wrong procedure as his complaint about removal from office as Executor should have been brought by way of review under the Administration of Estates Act; and (2) that the applicant lacked locus standi because he had conceded in his own affidavit that he had been removed from the office of Executor and therefore no longer had standing to represent the Estate. However, the court found it unnecessary to decide these points given the fatal defect in the founding affidavit. The court also observed that costs on a punitive scale were appropriate where an applicant persists with a defective application despite being fore-warned of the defects in the opposing papers and even after the court initially indicates problems with the application.

This case reinforces fundamental principles of civil procedure in Zimbabwean law regarding the requirements for valid founding affidavits in application proceedings. It confirms that a founding affidavit must be personally sworn to and signed by the deponent, and cannot be signed by another person on behalf of the applicant using "per procurationem" (PP). The case emphasizes that the founding affidavit is the cornerstone of application proceedings and must comply strictly with formal requirements. It also illustrates the court's willingness to award punitive costs where an applicant persists with a fundamentally defective application despite being warned of the defects. The case serves as a warning to litigants about the importance of ensuring proper compliance with procedural formalities and the consequences of ignoring defects that have been pointed out.