Hosea Marumahoko and Alex Marumahoko v Oscar Kurasha

The appellants and respondent were involved in a mining dispute at Van Wyk V Mine, Chinhoyi. The parties appeared to have a loose agreement to jointly conduct mining activities. A heap of gold ore was at the mine, and the respondent hired trucks to ferry the ore for processing. The appellants allegedly threatened workers and prevented transportation of the ore. The respondent obtained an ex-parte interim interdict preventing the appellants from visiting the mine and interfering with removal of the gold ore. On the return date, the appellants opposed confirmation of the interim order, raising preliminary points including that the respondent's founding affidavit was defective (the commissioner of oaths failed to affix a date when administering the oath). The court a quo dismissed the preliminary objections and confirmed the interdict. The appellants appealed.

• Whether the respondent's supporting affidavits were defective due to the commissioner of oaths failing to affix a date
• What is the appropriate order when an ex-parte application is granted on defective papers that were not properly heard on the merits
• Whether a matter on return date of an ex-parte application can be struck off the roll or must be discharged
• Whether the status quo ante should be restored where an interim order is discharged

1. The appeal was granted. 2. The decision of the court a quo was set aside. 3. The interim order granted on 18 March 2025 and amended on 20 March 2025 was discharged. 4. The applicant (respondent) was ordered to restore the status quo by returning the ore moved from Van Wyk Mine within 48 hours. 5. Costs were awarded to the appellants on a legal practitioner and client scale.

1. A commissioner of oaths must administer the oath to a deponent, affix their signature, and affix the date contemporaneously. Failure to affix a date renders the affidavit defective. 2. Ex-parte applications on return date are governed by Order 23 r 4(3) of the Magistrates Court (Civil) Rules 2019 and can only be discharged or confirmed (with or without variations), not struck off the roll. 3. The "struck off the roll" remedy applies only to matters not heard on merits that are fatally defective, but cannot apply to ex-parte applications on return date as this would leave the interim order unresolved when the law requires finality (discharge or confirmation). 4. Where an interim ex-parte order is discharged due to procedural defects, the status quo ante must be restored.

The court noted that the terms and conditions of the parties' understanding regarding their joint mining activities were irrelevant for the purposes of this case. The court also observed that the parties appeared to have "a loose agreement to jointly conduct mining activities" though this was not conceded by the respondent. The court expressed that it would have been "the end of the matter if what was before the Court a quo was a simple application" - indicating that striking off would have been appropriate for ordinary applications not heard on merits, but the ex-parte nature of these proceedings required different treatment.

This case is significant for clarifying important procedural points in Zimbabwean civil procedure: (1) It confirms the settled position that commissioners of oaths must affix both signature and date contemporaneously when administering oaths to affidavits, and failure to do so renders the affidavit defective. (2) It establishes that ex-parte applications on return date cannot be "struck off the roll" but must be either discharged or confirmed, as they are sui generis proceedings governed by specific rules (Order 23 r 4(3)). This prevents interim orders from remaining in limbo. (3) It affirms that where an interim order is discharged due to procedural defects, the status quo ante must be restored. The case provides important guidance on the intersection between general civil procedure rules and the specific procedure governing ex-parte applications.