Tenke Fungurume Mining SA v Bruno Enterprises (Private) Limited

The applicant sought leave to appeal against a judgment of the High Court delivered on 1 August 2018 dismissing an application for absolution from the instance. The applicant and its legal practitioners became aware of the judgment on 7 September 2018 and received a copy on 11 September 2018. Due to the time lapse, the applicant also sought condonation for the late filing of the application for leave to appeal. The respondent was a company under judicial management. In the main matter, the Sheriff was holding copper belonging to the applicant to confirm jurisdiction, with storage charges exceeding US$300,000. The respondent opposed the application, alleging it was brought solely to delay finalization of the trial and that the applicant had no prospects of success. The respondent raised several preliminary objections including: (1) that the founding affidavit was fatally defective as the notary public's name did not appear and the deponent signed on 28 September 2018 while the notary stamped on 1 October 2018; (2) that the supporting affidavit by Obert Kondongwe referred to a non-existent deponent (Guy Mbuyu) while the founding affidavit was deposed to by Claude Polet; (3) that Obert Kondongwe, as the legal practitioner representing the applicant, should not have deposed to an affidavit; and (4) that the co-joining of the condonation application with the leave to appeal application was incompetent.

• Whether a founding affidavit is fatally defective when the date of signature by the deponent differs from the date stamped by the commissioner of oaths/notary public
• Whether a supporting affidavit is valid when it refers to a non-existent deponent
• Whether a legal practitioner should continue to represent a party when he has deposed to an affidavit and may be called as a witness
• Whether co-joining an application for condonation with an application for leave to appeal is competent
• Whether condonation should be granted for late filing of an application for leave to appeal
• What constitutes sufficient prospects of success for granting leave to appeal against an interlocutory order

1. The application for condonation for the late bringing of the application was granted. 2. The application for leave to appeal the judgment of the High Court of 1 August 2018 was granted. 3. The applicant was ordered to file its notice of appeal with the Supreme Court within 10 days of service of the order or its pronouncement. 4. The respondent was ordered to bear costs of the application on the ordinary scale.

1. A founding affidavit is not fatally defective merely because the date of the deponent's signature differs from the date of the commissioner of oaths' stamp, provided there is sufficient evidence on the face of the document showing proper commissioning by way of stamps and signature of the notary public. 2. While a supporting affidavit referring to a non-existent deponent has no value and should be removed from the record, it does not invalidate the entire application where the founding affidavit itself is properly commissioned. 3. It is undesirable and not in the interest of justice for a legal practitioner to continue representing a party where his actions may result in him being called as a witness, though this alone does not invalidate the application. 4. The High Court, as a court of inherent jurisdiction, may hear co-joined applications for condonation and leave to appeal in the absence of prohibitive law, as rules are made for the court and should serve justice. 5. In applications for condonation, the court must exercise judicial discretion considering the degree of non-compliance, the explanation, prospects of success, importance of the case, and principles of fairness to both sides. 6. For leave to appeal against interlocutory orders, the test is whether the applicant makes out a reasonable arguable case, not whether there are strong prospects of success.

The court expressed strong agreement with the sentiments of Mathonsi J (as he then was) in Rock Chemical Fillers (Pvt) Ltd v Bridge Resources (Pvt) Ltd regarding the unfortunate practice of legal practitioners signing affidavits as commissioners of oaths without ensuring an oath is properly taken or in the absence of the deponent. The court cautioned that legal practitioners must be careful when typing dates in affidavits to ensure certainty that the deponent will appear before the notary public on that date, as discrepancies can create problems. The court also noted that while the supporting affidavit of Obert Kondongwe created difficulties, he should have filed a supplementary supporting affidavit or removed and replaced the initial one rather than attempting to explain discrepancies in an answering affidavit. The court observed that a different legal practitioner from Obert Kondongwe's law firm should have appeared given his compromised position.

This case clarifies important principles of civil procedure in Zimbabwe, particularly: (1) the requirements for valid commissioning of affidavits, establishing that technical discrepancies in dates or missing handwritten names do not necessarily invalidate an affidavit where sufficient indicia of proper commissioning exist; (2) the ethical considerations when legal practitioners depose to affidavits and potentially become witnesses in matters where they represent parties; (3) the High Court's inherent jurisdiction to hear co-joined applications where it promotes justice and efficiency; and (4) the proper test for granting leave to appeal interlocutory orders, being whether the applicant makes out a reasonable arguable case rather than requiring strong prospects of success. The case emphasizes that rules of procedure should serve justice rather than defeat it, and that courts should exercise discretion to grant condonation where delay is explained and fairness demands it.