William Baron v Theresa Baron and Others

William Baron (applicant) instituted summons proceedings against Theresa Baron (1st respondent) and Thomas William Baron (2nd respondent) under case No. HC 1025/20, claiming US$26,700.00 representing monies he contributed towards the purchase of assets for the Thomas William Baron Family Trust. He alleged that the 1st and 2nd respondents dissolved the Trust without reimbursing his contributions. While that matter was pending at the discovery stage, the applicant launched this application seeking to place a caveat against Plot 17 and Plot 18 of Greenvale, Bickford, Umsungwe Block, Gweru, registered in the names of the 1st and 2nd respondents respectively. The applicant contended that the respondents had no other known assets to satisfy his claims. The founding affidavit was not deposed to by the applicant himself, but by his legal practitioner, Nikiwe Ncube-Tshabalala. The purported answering affidavit was unsigned by the deponent, though signed by a commissioner of oaths.

• Whether a founding affidavit deposed to by a legal practitioner rather than the applicant, containing facts not within the deponent's personal knowledge and without identifying the source of information, constitutes admissible evidence
• Whether hearsay evidence in a founding affidavit renders the application incompetent
• Whether the requirements of section 27(1) of the Civil Evidence Act were satisfied to render first-hand hearsay evidence admissible
• Whether an application can proceed without a valid founding affidavit

The application was struck off the roll with costs of suit.

A founding affidavit in a court application must be made by the applicant or by a person who can swear to the facts or averments set out therein based on personal knowledge. Where a deponent (including a legal practitioner) deposes to facts not within their personal knowledge, they must identify the source of such information and satisfy the requirements for the admissibility of hearsay evidence under section 27(1) of the Civil Evidence Act. Merely stating that one is the legal practitioner of the applicant and has verified facts is inadequate. A founding affidavit containing inadmissible hearsay evidence throughout means there is no valid founding affidavit, and consequently no application before the court. An application must stand or fall by its founding affidavit, and without a valid founding affidavit, the application cannot proceed and must be struck off the roll.

The court made observations about the peculiar situation where a purported answering affidavit was signed by a commissioner of oaths but not by the deponent, noting that this "leaves a lot of questions unanswered" and that the court cannot relate to "an unsigned document masquerading as an affidavit." While not central to the decision, the court also noted that the matter involved a procedural issue regarding the late filing of heads of argument by the 1st respondent, which was resolved by a separate chamber application to uplift the automatic bar, granted by consent. The court cited the principle from Herbstein and Van Winsen's Civil Practice of the High Courts of South Africa that where a deponent includes information they do not have first-hand knowledge of, a verifying affidavit must be filed.

This case reinforces fundamental principles of civil procedure and the law of evidence in Zimbabwe (and by extension South African law given the shared legal heritage and similar procedural rules). It emphasizes the strict requirement that founding affidavits in court applications must be based on the personal knowledge of the deponent, and that hearsay evidence is generally inadmissible unless it falls within recognized exceptions. The case demonstrates that a legal practitioner cannot simply depose to a founding affidavit on behalf of a client without clearly identifying the source of information and establishing that such information would be admissible from the source. The judgment serves as a cautionary reminder that technical compliance with procedural requirements is essential, and that failure to properly depose to a founding affidavit will result in the application being struck off regardless of the potential merits of the underlying claim.