Mthunzi Sibanda v Archibald Tsanga and Ronald Kunyangwe and The Officer in Charge CID Vehicle Theft Squad Harare N.O.

The applicant sought a mandatory interdict (mandamus) compelling the third respondent (Police) to release a motor vehicle (registration number ADS 5756) which he claimed to own. The applicant alleged he purchased the vehicle from Victor T Mhirimo for US$5,000.00 and gave custody to the first respondent to obtain a certificate of fitness. The first respondent allegedly unlawfully sold the vehicle to the second respondent on 5 May 2024 without the applicant's consent. A Deed of Settlement was signed between the applicant and first respondent, but was later cancelled due to breach and confirmed by the Magistrates' Court on 18 August 2025. The applicant reported the matter as theft and the vehicle was recovered from the second respondent. The second respondent opposed the application, claiming he was the lawful owner having purchased and paid for the vehicle from the first respondent. The applicant raised a preliminary point that the second respondent's opposing affidavit was fatally defective because the commissioner of oaths did not endorse the date on which the oath was administered.

• Whether an affidavit is fatally defective if it does not contain two separate dates (one for the deponent and one for the commissioner of oaths)
• What constitutes a valid affidavit under Zimbabwean law
• Whether the commissioner of oaths' endorsement of a single date satisfies the requirement of contemporaneity in administering oaths
• The binding effect of Supreme Court precedent on the High Court

The point in limine raised by the applicant was dismissed. Costs were ordered to be in the cause. The matter was to proceed to a hearing on the merits.

A valid affidavit requires the commissioner of oaths to endorse the date on which the oath was administered, but only one such date is required by law. The endorsement of a single date by the commissioner of oaths is sufficient to satisfy the court that both the deponent and the commissioner acted contemporaneously. There is no legal requirement in Zimbabwean law for two separate dates (one for the deponent and one for the commissioner). The commissioner of oaths is the person who administers the oath and is therefore the person legally required to endorse the date of administration. Where an affidavit bears a date endorsed by the commissioner of oaths showing when the oath was administered, along with the signatures of both deponent and commissioner and proper identification of the commissioner's capacity, it constitutes a valid affidavit.

The court made observations on the principle of stare decisis, emphasizing that decisions of the Supreme Court on non-constitutional matters are final and binding on the High Court, and that such decisions are correct because they are final, not final because they are correct. The court also noted that while it generally follows its previous decisions, only decisions of two judges sitting together are binding on a single judge, and a single judge may depart from previous decisions of another single judge where satisfied the previous decision was clearly wrong or does not correctly reflect the law. The court observed that questions of whether affidavits are properly commissioned should not be approached with excessive formalism, but that compliance with legal requirements remains essential. The court remarked approvingly on G & G Preserves (Pvt) Ltd t/a G & G Property Developers v Themba Sibanda HB 221/25 which stated there is no law requiring two dates for contemporaneity.

This judgment clarifies an important procedural point in Zimbabwean civil procedure regarding the requirements for a valid affidavit. It authoritatively establishes that only one date is required to be endorsed by a commissioner of oaths (not two separate dates), and that this single date endorsed by the commissioner is sufficient to demonstrate contemporaneity of the oath-taking process. The judgment reinforces the binding nature of Supreme Court precedent on the High Court under the principle of stare decisis, and demonstrates the High Court's willingness to depart from incorrect decisions by single judges that do not correctly reflect the law. It provides clarity against an emerging trend of requiring two dates that was not supported by binding precedent.