Tami Lovemore Jerera and Others v Madokero Apartments (Private) Limited and Others

Eight applicants sought a declaratory order that recalculation of monthly repayments for properties in Madokero estates in United States Dollars payable at the prevailing monthly interbank rate contravened section 21 of the Finance Act (No.2) of 2019. They also sought that respondents be compelled to redenominate account balances in Zimbabwe Dollars at a rate of one to one with the United States Dollar. The founding affidavit was deposed to by the first applicant only, Tami Lovemore Jerera, who referred only to his own cause of action. Three respondents were cited in the application but the third respondent (Exodus & Company (Private) Limited) was not mentioned or incorporated in the founding affidavit. The second to eighth applicants filed supporting affidavits which merely stated they had read and adopted the first applicant's affidavit and attached their own statements of accounts.

• Whether the third respondent was properly cited and before the court when not mentioned in the founding affidavit
• Whether the second to eighth applicants were properly before the court when not mentioned as parties in the founding affidavit
• Whether supporting affidavits that merely adopt and endorse the founding affidavit are sufficient to bring co-applicants properly before the court without formal joinder

The points in limine raised by the respondents were upheld with costs. Only the first applicant, Tami Lovemore Jerera, was found to be properly before the court. The supporting affidavits of the second to eighth applicants were struck out. The third respondent was found not to be properly cited.

Persons not mentioned in the founding affidavit as parties to a matter cannot impose themselves as co-applicants outside the formal procedure of joinder of parties provided in the rules of court. Supporting affidavits that merely adopt and endorse the contents of a founding affidavit are insufficient to properly bring co-applicants before the court. A respondent not cited or mentioned in the founding affidavit with no allegations made against it is not properly before the court. Each applicant must either be incorporated in the founding affidavit with averments establishing their case, or must file their own affidavit (which may be in simple terms) authorizing representation, confirming they have read the papers, and establishing the basis for their claim.

The court observed that applicants' failure to rectify citation defects when these issues were raised in the respondents' opposing papers - either by making an application for joinder or withdrawing claims against improperly cited parties - was a missed opportunity. The court used the metaphor that by the time of the hearing, "the proverbial horse had already bolted," emphasizing that procedural defects must be addressed timeously and cannot be remedied through belated oral applications at the hearing stage.

This case reinforces important principles of civil procedure in Zimbabwe regarding proper citation of parties and joinder of applicants in court applications. It establishes that parties cannot simply adopt or endorse another party's founding affidavit to become applicants in proceedings - they must either be mentioned as parties in the founding affidavit with proper averments made on their behalf, or be formally joined through the proper procedural mechanism. The case emphasizes that an applicant's case stands or falls by its founding affidavit, and defects in citation cannot be remedied at the hearing stage through belated oral applications.