Minister of Defence, Security & War Veterans Affairs (N.O) v Andy Manyeruke and Minister of Defence, Security & War Veterans Affairs (N.O) v Dzikamai Chivhanga

The respondents sued the applicant (Minister) in two separate actions claiming damages of US$23,000 and US$17,000 respectively for injuries sustained after being shot by members of the Zimbabwe National Army acting in the course of their employment. The applicant was sued on the basis of vicarious liability. The summonses were served on 24 July 2020, but the applicant only filed appearances to defend on 1 September 2020, outside the prescribed time. The applicant then filed exceptions and special pleas. In their replications, the respondents averred that these were improperly before the court as the applicant was barred for entering appearance out of time. The applicant then filed applications for upliftment of the bar in terms of Rule 84 of the High Court Rules, 1971. The founding affidavits were deposed to by Abigail Mushayabasa, a legal practitioner with the applicant's law firm, rather than by the Minister or a person with direct knowledge of the facts relating to service and handling of the summonses at the Defence Forces offices.

• Whether a legal practitioner can depose to a founding affidavit in procedural matters where the facts are not within the legal practitioner's personal knowledge
• Whether the founding affidavit containing hearsay evidence is valid
• Whether a supporting affidavit can cure defects in an invalid founding affidavit or stand in place of a founding affidavit
• The requirements for a valid affidavit under Rule 227(4)(a) of the High Court Rules, 1971

The two matters were struck off the roll. Each party was ordered to bear its own costs.

1. A legal practitioner may only depose to a founding affidavit on behalf of a client in procedural matters where the facts are within the legal practitioner's personal knowledge, in accordance with Rule 227(4)(a) of the High Court Rules, 1971. 2. An affidavit containing hearsay evidence by a deponent without personal knowledge of the facts is invalid. 3. A supporting affidavit cannot cure an invalid founding affidavit or stand in its place; once a founding affidavit is invalid, the supporting affidavit has nothing to support and the application fails. 4. The founding affidavit sets out the facts and basis for seeking relief and must inform the respondent of the case to be met; an application stands or falls on the founding affidavit. 5. The general rule is that legal practitioners should not depose to founding affidavits on behalf of clients; this can only be done as an exception and should be sparingly resorted to.

The court noted that the power to grant relief in applications for upliftment of the bar is not exercised arbitrarily but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. The court also commented that even in exceptional cases where legal practitioners may depose to founding affidavits, this route should be sparingly resorted to, citing Samkange & Anor v The Master & Anor HH-63-93 and Dr Ibbo Mandaza's case. The court made these observations to guide legal practitioners in future cases about the proper approach to deposing to affidavits.

This case is significant in Zimbabwean civil procedure (and instructive for South African law given the similarity in court rules) as it clarifies the strict requirements for affidavits in court applications. It reinforces that while legal practitioners may depose to founding affidavits in procedural matters as an exception to the general rule, this should be done sparingly and only when the facts are within their personal knowledge. The case emphasizes that affidavits must comply with the rules requiring personal knowledge, and that hearsay evidence renders an affidavit invalid. It also establishes that supporting affidavits cannot cure or replace defective founding affidavits. The judgment serves as a warning to legal practitioners to ensure proper deponents are identified for affidavits and that the general rule requiring clients or persons with direct knowledge to depose to founding affidavits is observed.