Gerald Mpofu and Similo Chiradza v Qhakaza Investments (Pvt) Ltd t/a The Baby Shop and The Deputy Sheriff

The applicants sought an urgent chamber application to stay execution of an ejectment and warrant of execution issued by the High Court in case number HC 3057/09. The matter arose from a catalogue of numerous applications and counter-applications between parties who were all related, including directors. The first respondent was holding an eviction order issued by the court, though the applicants contended it was erroneously granted. The founding affidavit was deposed to jointly by both applicants, with both names appearing on the same pages, signed on the same date before the same commissioner of oaths, Mr Lison Ncube.

• Whether a founding affidavit can be validly deposed to and signed jointly by two deponents simultaneously before one commissioner of oaths
• Whether the court rules permit two applicants to sign a single affidavit together rather than filing separate affidavits
• Whether a valid application exists before the court where the founding affidavit does not comply with the court rules

The application was dismissed with costs on an attorney-client scale (higher punitive scale).

The binding legal principle established is that court rules requiring applications to be supported by "one or more affidavits" are peremptory and must be strictly complied with. Where there are two applicants, they cannot jointly depose to and sign a single founding affidavit simultaneously before one commissioner of oaths. Each deponent must depose to a separate affidavit (either a founding affidavit or supporting affidavit), as an affidavit takes the place of oral evidence and it would be impossible for two witnesses to give evidence simultaneously. A founding affidavit that is irregularly deposed to by multiple deponents simultaneously renders the entire application invalid, as there is no valid application before the court to consider.

The court made several non-binding observations: (1) The court questioned how a commissioner of oaths could administer an oath to two people simultaneously, expressing doubt that this could be done properly, and positing the difficulty if there were ten deponents; (2) The court noted that it has always been the practice of courts internationally to deal with one affidavit at a time; (3) The court observed that there was nothing preventing the second applicant from simply deposing to a supporting affidavit instead of attempting to jointly depose to the founding affidavit; (4) The court described the jointly deposed affidavit as "unprecedented and novel to our legal system"; (5) The court commented that the applicants "together with their commissioner of oaths engaged into some illegality" - suggesting potential professional misconduct by the commissioner of oaths.

This case establishes important procedural requirements for court applications in Zimbabwe. It clarifies that multiple applicants cannot jointly depose to a single founding affidavit simultaneously before one commissioner of oaths. The judgment reinforces strict compliance with court rules regarding affidavits and demonstrates that procedural irregularities in the foundational documents of an application can be fatal to the entire application. It also illustrates the court's willingness to impose punitive costs where parties persist with irregular procedures despite being advised of their non-compliance.