John Chinyanya and 11 Others v The African Apostolic Church and 2 Others

Twelve applicants sought condonation for the late filing of a rescission application in respect of a default eviction judgment obtained against them by the first respondent on 11 December 2024 (HC 1319/20). The applicants had failed to file heads of argument timeously in the eviction proceedings due to confusion by their legal practitioners. Their earlier condonation application (HC 1695/24) was dismissed for want of prosecution without their knowledge. The applicants only learned of the default eviction judgment on 23 May 2025 when served with a writ of execution. They promptly instructed lawyers on 26 May 2025 to file urgency and rescission applications, but due to further legal practitioner mishaps (including incorrect IECMS particulars and miscommunication), the applications were not filed. New lawyers were engaged who filed the present condonation application around end of June 2025, approximately 5 days outside the 30-day rescission period.

• Whether an affidavit not bearing the commissioner of oaths' designation or office on the stamp is valid for purposes of motion proceedings
• Whether the reference to enabling legislation (Justices of the Peace and Commissioners of Oaths Act) without designation is sufficient to validate the commissioning
• Whether the defect in commissioning renders the entire application a nullity

1. The preliminary point is upheld. 2. The application for rescission of judgment is struck off the roll for want of a properly commissioned founding affidavit. 3. The applicants shall pay the respondents' costs of suit on the ordinary scale.

For an affidavit to be valid in motion proceedings in Zimbabwe, the commissioner's stamp must clearly identify both the person before whom the oath is taken and the office or capacity in which they act as commissioner of oaths. Mere reference to the enabling legislation (Justices of the Peace and Commissioners of Oaths Act) without specifying the commissioner's designation is insufficient. The failure to indicate the commissioner's specific capacity (e.g., legal practitioner, magistrate, police officer) renders the affidavit void ab initio and incurably defective. Without a valid founding affidavit, there is no valid application before the court. This defect cannot be cured by subsequent explanation or inference.

The court noted that the practice requirement regarding commissioning of affidavits is not a mere technicality but a matter going to the validity and integrity of judicial proceedings. The court emphasized that requiring clear identification of the commissioner's authority protects the court from reliance on documents whose validity is uncertain. The court also observed that the applicants may, if so advised, file a fresh and properly commissioned application, indicating that the defect relates to form rather than substantive rights, though it is nonetheless fatal to the present application.

This case reinforces the strict requirements for commissioning of affidavits in Zimbabwean civil procedure. It confirms that the principles established in Firstel Cellular remain binding and that technical compliance with oath-taking formalities is not merely procedural but goes to the validity of court documents. The judgment emphasizes that the identity and capacity of commissioners of oaths must be clearly stated on affidavits, and that this requirement is jurisdictional rather than directory. It serves as a warning to legal practitioners to ensure strict compliance with formalities when commissioning affidavits, as defects cannot be cured by subsequent explanation or inference.