Optimax Mining Resources (Private) Limited and Vusani Grey Diamond Sibanda v Next Gen Power Private Limited and Others

The first and second applicants approached the court on an urgent basis seeking declaratory relief regarding ownership of approximately five million tonnes and 200,000 tonnes of iron ore fines stockpile situated at Mukwakwe Railway siding in Buchwa. The applicants alleged that the first and second respondents had unlawfully invaded their lots and started processing the stockpiles, claiming they had an agreement with the fourth respondent. The applicants sought a prohibitory interdict to stop the respondents from occupying, processing, removing and transporting the iron ore for export. The founding affidavit was deposed to by Brendon Chipadza, a legal practitioner acting for the first applicant. The second applicant filed a supporting affidavit associating himself with the legal practitioner's affidavit. The first and second respondents opposed the application and raised several points in limine, including that there was no valid application before the court due to the founding affidavit containing hearsay evidence.

• Whether a founding affidavit deposed to by a legal practitioner without personal knowledge of the facts constitutes hearsay evidence
• Whether an affidavit containing hearsay evidence can support a valid application
• Whether a supporting affidavit by an applicant that merely associates itself with another defective affidavit can stand
• The requirements for a valid founding affidavit under Rule 58(4)(a) of the High Court Rules 2021

The application was struck off the roll with costs.

A founding affidavit must be deposed to by a person who has personal knowledge of the facts and can swear positively to those facts as required by Rule 58(4)(a) of the High Court Rules 2021. An affidavit deposed to by a legal practitioner based on information received from the client, without the deponent having personal knowledge of the material facts, constitutes hearsay evidence and cannot support a valid application. Where the founding affidavit is not valid due to hearsay evidence, there is no valid application before the court and the application must be struck off. An application stands or falls on its founding affidavit, which is the heart of every application.

The court noted that it is not the duty of the court to sieve and sift through the contents of an affidavit to determine which statements are hearsay and which are not - a founding affidavit should simply be compliant from the outset. The court also observed that the fact that a deponent is a legal practitioner acting for the applicant does not, in itself, remove the hearsay nature of evidence where the practitioner has no personal knowledge of the facts beyond what was narrated by the client.

This case reinforces the strict requirements for founding affidavits in Zimbabwean civil procedure. It emphasizes that legal practitioners cannot depose to founding affidavits based on information received from clients without personal knowledge of the facts, as such evidence constitutes inadmissible hearsay. The case underscores the principle that an application stands or falls on the validity of its founding affidavit, which is 'the heart of every application.' It also clarifies that parties to proceedings cannot file 'supporting affidavits' that merely adopt defective affidavits without providing independent factual averments. The judgment serves as an important reminder to practitioners to ensure proper compliance with procedural rules regarding affidavits and personal knowledge requirements.