The applicant, Larric Services (Private) Limited, owned stand number 11294A Bulawayo Township (the property). On 20 September 2019, the property was transferred to the 1st respondent, Blackiynx (Private) Limited, pursuant to an alleged agreement of sale dated 1 February 2016. Michael Horwitz signed the agreement on behalf of the applicant as a purported director. Subsequently, a board resolution dated 23 February 2019, also signed by Michael Horwitz, authorized Lordwell Moya to sign transfer documentation. The applicant disputed the transfer, alleging that Michael Horwitz had resigned as director on 13 March 2017 and had no authority to act on its behalf when signing the board resolution and related documents. The applicant alleged the transfer was fraudulent, irregular and illegal, and sought a declaratory order setting aside the transfer. The 1st respondent opposed the application, raising preliminary objections including that there were material disputes of fact that could not be resolved on the papers. The 2nd and 3rd respondents (Registrar of Deeds and Commissioner General ZIMRA) did not participate.
The preliminary objection regarding material disputes of fact was upheld. The matter was referred to trial. The notice of application and notice of opposition were to stand as summons and notice of appearance to defend respectively. The plaintiff (applicant) was ordered to file its declaration within 10 days. The matter was to proceed in accordance with the High Court Rules thereafter. Costs of the application were ordered to be costs in the cause.
1. An affidavit that concludes with the words "thus sworn to" and is properly commissioned is valid even if it does not open with the traditional words "I make oath", as insisting on such formality would elevate form over substance. 2. A court is entitled to refer to its own records and proceedings (including interlocutory applications) to establish the authority and capacity of a deponent to an affidavit. 3. Material disputes of fact arise when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute in the absence of further evidence. 4. Where there are two mutually destructive versions that cannot be reconciled on the papers, and attempting to resolve the matter would cause injustice to either party, material disputes of fact exist. 5. When material disputes of fact are found, the court has discretion as to the future of proceedings and may refer the matter to trial rather than dismiss it where the justice of the case requires it.
The court did not find it necessary to consider the other preliminary objections raised by the 1st respondent (that the application was not properly before court and that the applicant was pleading a new cause of action in its answering affidavit and heads of argument) given its finding on the material disputes of fact. The court noted that filing a detailed and lengthy answering affidavit (five pages and twenty-two paragraphs) demonstrated the significance of the opposition and could not be "wished away as something of no moment."
This case illustrates the Zimbabwean courts' approach to preliminary objections in motion proceedings, particularly regarding the validity of notices of opposition and the treatment of material disputes of fact. It demonstrates the court's willingness to take a substantive rather than formalistic approach to procedural requirements, while maintaining rigor in determining when oral evidence is necessary. The case also clarifies that courts may refer to their own prior records to establish factual matters and that the court has discretion when material disputes of fact are found - including the option to refer the matter to trial rather than dismissing the application where justice requires it.