Good Living Real Estate (Pvt) Limited v A Adam and Company (Pvt) Limited and Others

The applicant and the first and second respondents entered into a partnership or joint venture agreement involving the management of Stands No. 147 and 151 Mbuya Nehanda Street, Harare. The agreement provided for the sharing of rental income in the proportion of 33% for the applicant and 67% for the first and second respondents. The applicant sought a mandatory and prohibitory interdict requiring: (1) sharing of rental monies collected from 2014-2018 in accordance with the partnership agreement; (2) an order preventing the first and second respondents from interfering in the management of the properties; and (3) costs on an attorney-client scale. The respondents filed opposing affidavits. At the hearing, the applicant raised a point in limine that there was no valid opposition because the opposing affidavits filed by all three respondents were defective as they bore computer-generated dates rather than dates endorsed in long hand by the commissioner of oaths.

• Whether an affidavit bearing a computer-generated date rather than a date endorsed in long hand by the commissioner of oaths is fatally defective
• Whether the commissioner of oaths must personally endorse the date on which the oath was administered contemporaneously with the signing of the affidavit
• What are the proper requirements for the valid attestation of affidavits in Zimbabwean law
• Whether defective opposing affidavits render a notice of opposition a nullity

1. The application is removed from the roll. 2. The respondents are directed to file duly attested opposing affidavits within 10 days of the granting of this order, and thereafter the matter shall proceed to a hearing on the merits in terms of the rules. 3. Costs shall be in the cause.

An affidavit must be signed and dated contemporaneously before a commissioner of oaths. The commissioner of oaths must personally endorse in long hand the date on which the oath was administered. A computer-generated or pre-typed date on an affidavit is a material defect that renders the affidavit invalid because it provides no evidence or confirmation that the oath was administered contemporaneously with the signing, and raises suspicion to the contrary. The date endorsement by the commissioner is an integral component of the attestation process that affects the authenticity and integrity of the affidavit. This requirement is binding on the High Court as established by the Supreme Court in Robert Kwesiga & Anor v Prosecutor General & Ors SC 58/25 and the two-judge appellate decision in Mike Mandishayika v Maria Sithole HH 798/15.

The court made extensive obiter remarks calling for legislative reform to modernize the Justices of the Peace and Commissioner of Oaths Act [Chapter 7:09] to accommodate electronic signatures and virtual commissioning of affidavits. The court noted that in the modern age of technological advancement that allows video conferencing, virtual online sessions and digital signing, insistence on physical presence and handwritten dates is outdated. The court observed that other jurisdictions like South Africa and Australia have enacted legislation recognizing electronic signatures, and Zimbabwe is lagging behind. The court suggested that affidavits could be signed and commissioned virtually or through video conferencing, as a commissioner could still observe the signing, verify the deponent's identity, and assess capacity and willingness to take the oath. The court emphasized that in a global world, courts should keep up with modern trends by embracing technological developments and promoting ease of doing business. However, any reform should include safeguards such as advanced electronic signatures and stringent verification processes to ensure reliability and security.

This judgment reinforces and clarifies the strict requirements for the proper attestation of affidavits in Zimbabwean law, particularly that commissioners of oaths must personally endorse the date on which the oath is administered contemporaneously with the signing. The judgment confirms that computer-generated dates on affidavits render them defective. The court endorsed the Supreme Court's recent guidance in Robert Kwesiga v Prosecutor General SC 58/25, which itself endorsed the two-judge decision in Mandishayika v Sithole. The case is significant for establishing a clear, binding precedent on this procedural point across the High Court. Additionally, the judgment contains important obiter dicta calling for law reform to accommodate electronic signatures and virtual commissioning of affidavits, reflecting judicial awareness of the need for the law to keep pace with technological developments in a globalized commercial environment.