Maxwell Munondo v New Century Productions (Pvt) Ltd and Others

The first respondent obtained a default judgment against the applicant under Case No. HCH 2620/24 on 6 November 2024, ordering the applicant and all those claiming occupation through him to vacate a portion of Garth Farm to allow for road construction. The applicant filed an application for rescission of the default judgment and sought an interim stay of execution pending determination of the rescission application. The first respondent raised three points in limine, including that the founding affidavit was fatally defective because it was not properly commissioned. The commissioner of oaths was identified only as "Ignatius Noah Kajengo" with an address in Mabelreign and a cell phone number, without disclosing his capacity or official designation as commissioner of oaths.

• Whether a founding affidavit that does not disclose the capacity and official designation of the commissioner of oaths is validly commissioned
• What are the requirements for a valid commissioner of oaths stamp and identification in Zimbabwe
• Whether the court can proceed with an application based on a defectively commissioned founding affidavit

The application was struck off the roll. The applicant was ordered to bear the first respondent's costs.

A founding affidavit that fails to disclose the capacity and official designation of the commissioner of oaths is not validly commissioned and vitiates the entire application. The identity and status of a commissioner of oaths must be clearly indicated ex facie the affidavit itself, showing the office, capacity or status in which the person acts as a commissioner of oaths. It is insufficient to merely provide a name and address without indicating the capacity in which the person exercises the function of commissioner of oaths. An opposing party is not required to search registers at the Ministry of Home Affairs to determine credentials that should have been disclosed on the document itself. Where a founding affidavit is invalid due to defective commissioning, there is no valid application before the court and it must be struck off the roll.

The court provided detailed guidance on best practices for commissioner of oaths stamps, suggesting that for legal practitioners the stamp should reflect: full name, designation as legal practitioner, conveyancer (if applicable), notary public and commissioner of oaths, the law firm name, and physical address. For police officers appointed as commissioners of oaths or justices of the peace, the stamp should bear: full names, rank in the Zimbabwe Republic Police, force number, designations as justice of the peace and commissioner of oaths, and the name and address of the police station or office where based. The court noted that the date of deposition must also appear on the affidavit itself. The court observed that commissioners of oaths must administer the oath and sign the affidavit in the presence of and at the same time as the deponent.

This case reinforces and clarifies the strict requirements for valid commissioning of affidavits in Zimbabwean courts. It emphasizes that the credentials and capacity of commissioners of oaths are not peripheral matters but go to the fundamental authenticity of affidavits. The case provides practical guidance on what information must appear on commissioner of oaths stamps for different categories of commissioners (legal practitioners, police officers, etc.). It establishes that the burden is on the deponent to ensure proper commissioning is reflected on the face of the document, not on opposing parties to investigate credentials. The case demonstrates that technical defects in founding affidavits can be fatal to an entire application, preventing consideration of the merits.