John Tendayi Elliot Nyakunu and Samuel Kudiwa Ncube v The Master of the High Court and Oliver Masomera NO

The applicants, who were nominated executors testamentary in the estate of the late Ellen Hatinachedu Ncube, filed a court application seeking review of the Master of the High Court's decision to refuse to revoke letters of administration granted to Oliver Masomera of Obram Trust Company (Pvt) Ltd as Executor Dative. The applicants combined their application for review with an application for condonation for late filing. Both applicants deposed to a single combined founding affidavit, signing one after the other before a commissioner of oaths. The second respondent was cited in his official capacity as executor only, not in his personal capacity. The second respondent opposed the application and raised three points in limine: (1) the impropriety of combining the review and condonation applications; (2) improper citation of the executor in his official capacity only; and (3) the invalidity of the combined affidavit filed by both applicants.

• Whether it is procedurally proper to combine an application for condonation for late filing with an application for review in the same court papers
• Whether an executor sought to be removed must be cited in his personal capacity as well as his official capacity
• Whether two applicants may depose to a single combined affidavit in support of a court application

The application for review was struck off the roll. The applicants were ordered to pay the respondent's costs on the ordinary scale (not a higher scale, as two of the three points in limine were dismissed).

Two or more applicants cannot depose to a single combined affidavit in support of a court application. An affidavit takes the place of oral evidence, and just as two witnesses cannot testify simultaneously in oral evidence, two persons cannot make one affidavit. The High Court Rules (Rules 227(4), 230, and 234) provide for "one or more affidavits," meaning each deponent must make a separate affidavit. A combined affidavit is improperly deposed to and constitutes a defective founding affidavit. Since the founding affidavit is the basis of a court application, a defective founding affidavit means there is no proper application before the court, warranting the application being struck off the roll.

The court observed that when two persons give the same written statement, the chances are that only one of them has provided the facts in the statement and the other person is simply agreeing with the contents for convenience, to the prejudice of the proper administration of justice. The court also noted that while it is usual procedure to file separate applications for condonation and review (heard on the same day with condonation determined first), the wording of Rule 259 does not make this mandatory, as the rule simply requires "good cause shown" without prescribing a specific format. The court further observed that in applications to remove an executor, both the estate (as an interested party) and the executor personally should be cited, though failure to cite the executor personally is not fatal as it can be remedied through an application for joinder under Rule 87.

This case establishes important procedural requirements for court applications in Zimbabwe, particularly in relation to the form and validity of affidavits in court applications. It reinforces the principle that affidavits must be individual documents and that multiple applicants cannot depose to a single combined affidavit. The judgment provides clarity on the strict requirements for founding affidavits and the consequences of non-compliance with the High Court Rules. It also clarifies that while applications for condonation and review are typically filed separately, combining them is not necessarily fatal as long as good cause is shown. The case illustrates the court's approach to technical procedural objections and distinguishes between defects that are fatal and those that can be remedied.