Nomagugu Sithulisile Johnson v Natasha Farai Mashonganyika and Others

The plaintiff (Johnson) issued summons against the first defendant (Mashonganyika), who was the executrix dative of the late Nkosinothando Biba Ncube's estate. The plaintiff claimed that in May 2015, she purchased immovable property (Stand 6 Bulawayo Township, 41A Fort Street) from the late Ncube for US$55,000. The purchase price was allegedly paid through three individuals acting on the plaintiff's behalf. The parties agreed to share rentals equally until transfer. The late Ncube died before transfer could be effected. The plaintiff sought various orders including confirmation of the sale agreement, compulsion of the executrix to prepare liquidation and distribution accounts awarding the property to the plaintiff, transfer of the property, and payment of US$42,840 being half share of rental money. The first defendant applied for dismissal of the action as frivolous or vexatious in terms of Rule 31 of the High Court Rules, 2021, arguing that the plaintiff failed to plead a valid contract, did not comply with payment procedures, the claim had prescribed, and the claim had been adjudicated and rejected. The plaintiff opposed this application, but the opposing affidavit was deposed to by the plaintiff's legal practitioner rather than the plaintiff herself or someone with personal knowledge of the facts.

• Whether a legal practitioner can depose to an opposing affidavit on behalf of a client when the legal practitioner does not have personal knowledge of the material facts
• Whether the opposing affidavit complied with Rule 58(4) of the High Court Rules, 2021
• What constitutes exceptional circumstances permitting a legal practitioner to depose to an affidavit on behalf of a client
• Whether hearsay evidence in the opposing affidavit was admissible under section 27 of the Civil Evidence Act

1. The point in limine was upheld. There was no valid opposition to the application. 2. The matter was set down to allow the applicant to motivate the application on the merits. 3. Costs were ordered to be in the cause.

A legal practitioner may only depose to an affidavit on behalf of a client in exceptional circumstances where the facts are within the legal practitioner's personal knowledge. The general rule is that affidavits must be made by the party or a person who can swear positively to the facts. Where an application involves substantive factual issues (as opposed to purely procedural matters), a legal practitioner who was not present during the events and only has knowledge based on instructions from the client cannot swear positively to those facts. Such an affidavit fails to comply with Rule 58(4) of the High Court Rules, 2021. The deponent must indicate the source of information when relying on hearsay evidence, and there must be an acceptable explanation why direct evidence is not available. An affidavit based on instructions from a client, who themselves received information from third parties, constitutes second-hand hearsay and does not qualify for protection under section 27 of the Civil Evidence Act.

The court observed that even where a point in limine is upheld resulting in no valid opposition, an application is not automatically granted. The applicant must still make out a case for the relief sought. The court cannot grant an unopposed application without the applicant motivating the merits. The court also noted that the route of having a legal practitioner depose to affidavits, even in exceptional cases, should be sparingly resorted to. The court emphasized that while the issue of whether a claim is frivolous or vexatious may be better addressed by one with legal knowledge, such legal knowledge is not applied in a vacuum but must be applied to facts sworn to by someone who can positively attest to them.

This case provides important guidance on the limited circumstances under which a legal practitioner may depose to an affidavit on behalf of a client in Zimbabwean civil procedure. It reinforces the principle that affidavits must contain evidence from persons with direct, personal knowledge of the facts, and that legal practitioners should only depose to affidavits in exceptional circumstances, typically involving procedural matters within their direct knowledge. The judgment clarifies that merely being instructed by a client and drafting court papers does not give a legal practitioner sufficient personal knowledge to depose to affidavits concerning substantive factual matters. The case also illustrates the distinction between first-hand and second-hand hearsay, and emphasizes the requirement for deponents to specify the source of information when relying on hearsay evidence. It serves as a cautionary reminder to practitioners about the strict requirements of Rule 58(4) of the High Court Rules, 2021.