Godfrey Chiparaushe and 60 Others v Triangle Limited and Triangle Senior Staff Pension Funds and Mr S Mtsambiwa

The applicants (Chiparaushe and 60 others) brought an application seeking to have the first respondent (Triangle Limited) declared in contempt of a previous High Court Order in HC 10776/13. That earlier order had declared that Triangle Limited had an obligation to determine the applicants' basic annual salary for pension calculation purposes and to recommence making pension fund contributions within 90 days. The applicants alleged non-compliance with paragraphs (e) and (f) of the earlier judgment. The founding affidavit used in this application was the same affidavit originally sworn to on 30 November 2015 in Triangle for use in a different case (HC 11975/15) which had been withdrawn on 18 December 2015. After that date, the third respondent (Mr S Mtsambiwa) was added to the present proceedings, but the founding affidavit was not re-commissioned after these amendments were made.

• Whether a founding affidavit that was originally commissioned for use in a different (withdrawn) application can validly be used in subsequent proceedings
• Whether amendments to a founding affidavit (adding a party) without re-commissioning the affidavit renders it invalid
• Whether a founding affidavit must contain all material facts and allegations against all respondents to be valid
• Whether legal points (as opposed to factual points) can be raised for the first time in heads of argument

The application was dismissed with costs. The point in limine raised by counsel for the first and third respondents regarding the invalidity of the founding affidavit was upheld.

A founding affidavit that was originally commissioned for use in a different application that was subsequently withdrawn cannot validly be used in new proceedings when material amendments (such as adding a new respondent) have been made without the affidavit being re-commissioned by a Commissioner of Oaths. An application must stand or fall on its founding affidavit, which must contain all material facts upon which the applicant relies in seeking relief and must make out a case against all respondents. Where the founding affidavit is invalid or fails to meet these requirements, the application must be dismissed. Supporting affidavits cannot cure defects in an invalid founding affidavit.

The court noted that it had not called the lawyer who prepared the papers to account and therefore would not deal with allegations raised against such lawyer. The court also observed, obiter, that legal points (as opposed to factual points) can be raised at any time during proceedings, including for the first time in heads of argument, citing the South African Constitutional Court decision in Barkhuizen v Napier 2007 (5) SA 323 (CC). This provides an opportunity for the opposing party to respond in their own heads of argument.

This case reinforces important principles of civil procedure in Zimbabwe regarding the strict formal requirements for founding affidavits in motion proceedings. It emphasizes that: (1) a founding affidavit must be properly commissioned and cannot be recycled from withdrawn applications without proper re-commissioning, especially when amendments are made; (2) all material facts and allegations against all parties must be contained in the founding affidavit; (3) an applicant stands or falls by their founding affidavit; and (4) failure to comply with these formal requirements will result in dismissal of the application regardless of the merits. The case serves as a cautionary tale about the importance of proper legal drafting and compliance with procedural formalities.