ONE THOUSAND CONSTRUCTION (PRIVATE) LIMITED v DM HOUSING DEVELOPMENT SYNDICATE (PRIVATE) LIMITED (115 of 2024) [2024] ZWHHC 115 (18 March 2024)

1 HH 115 - 24 HC 10378/19 ONE THOUSAND CONSTRUCTION (PRIVATE) LIMITED versus DM HOUSING DEVELOPMENT SYNDICATE (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 18 March 2024 Court Application Mr R T Mutero for the applicant Mr N P Chinzou for the respondent CHINAMORA J: The matter I am seized with is an opposed application for dismissal for want of prosecution of HC 8256/19 and an order directing the Sheriff of High of Zimbabwe to proceed with execution of property attached at number 1441 Malbereign, Harare, under case number HC 2942/19. The applicant caused a summons to be issued against the respondent on 8 April 2019 claiming payment of the sum of US$ 90 500.00, being costs for work done on behalf of the respondent. Also claimed was interest thereon at the rate of 5 % per annum from the date of summons to the date of full payment and costs of suit. According to the return of service annexed to the application, the respondent was served with a copy of the summons on 9 April 2019. On 3 June 2019, in the Chambers of the late TAGU J, the applicant obtained a default judgment. It reads as follows: “IN CHAMBERS WHEREUPON, after reading the documents filed on record – IT IS ORDERED THAT: (a) Default judgment be and is hereby granted. (b) An order for the payment of US$ 90,500 being costs for work done on behalf of the defendant. (c) Interest at a rate of 5% per annum from the date of summons to the date of full payment. (d) Costs of suit on legal practitioners and client scale.” HH 115 - 24 HC 10378/19 On 13 September 2019, the applicant issued a writ of execution against the movable property of the respondent, in order to recover the sum of US$ 90,500.00, together with interest and cost of suit. It seems that, threatened by the execution on its property, the respondent filed an application for rescission of the default judgment and an urgent chamber application for stay of execution under HC 8257/19. Subsequently, on 11 October 2019 before CHAREWA J, the court with the consent of the parties granted a provisional order in the following terms: “INTERIM RELIEF GRANTED That you should show cause to this Honourable Court why a final order should not be made in the following terms: 1. The 1st and 2nd Respondents are hereby ordered to stay execution of property belonging to the Applicant at number 144, Malbereign, Harare pending resolution HC 8256/19. 2. The Sheriff is hereby barred from proceeding with the execution of the property attached at number 1441 (sic), Mabelreign, Harare under case 2942/19 (sic). 3. There shall be no order as to costs.” In terms of the aforesaid order, the applicant was directed to file its opposing papers within ten days showing cause why the final relief sought should not be granted. The applicant filed the them on 21 October 2019. However, the respondent did not file any answering affidavit or set down the matter for hearing after receiving the opposing papers. Because of this conduct, the applicant deems the matter under HC 8256/19 to have been abandoned and prays for its dismissal for want of prosecution. At the same time, the applicant seeks costs on a higher scale. In its opposition, the respondent denied being served with summons. It claims that the address used for the service was not its address of service. Further, the respondent avers that the summons were left at the premises leased to Mr T V Mazhude for residential purposes. However, a concession is made that an answering affidavit was not filed. The explanation given for this failure is that its legal practitioners prepared the answering affidavit but failed to reach Dennis Dzedze (“Dzedze”) to sign the documents since his wife was in hospital for some time. Dzedze, who deposed to the respondent’s opposing affidavit, states that he had suffered a stroke, which was followed by depression. The respondent therefore submits that it has valid reasons for not responding to the summons, namely, service was done at the wrong address. It added that the applicant was advised by the tenant’s lawyers that the respondent was no longer at that address but, nonetheless, proceeded with its actions. The respondent also asserted that the applicant was HH 115 - 24 HC 10378/19 paid in full for work he had done, through three stands which is what the parties had agreed at the inception of the contract in 2018. Additionally, the respondent contended that, as the contract was terminated in 2018, there was no basis for claiming in United States Dollars. In the result, the respondent prays that the application be dismissed with costs as it has filed its answering affidavit. In its answering affidavit, the applicant maintains that the summons was served at the respondent’s address of service. The applicant argues that the respondent has always used the said address in question, for example, under HC 6029/18 and the deponent; business card reflects that address. The applicant also contends that the alleged answering affidavit was not attached to the opposition. In simple terms, it was never prepared or filed of record. Furthermore, the applicant also maintains that the summons was served at the correct address. At the date of hearing, the respondent raised a preliminary point that the application is fatally defective for the reason that the founding affidavit is not dated. The applicant downplayed this preliminary point and argued that the High Court Rules do not define an affidavit, and that no legislation deals with the actual attestation of affidavits in Zimbabwe. While this is true, there is precedent that High Court has dealt with this issue. In particular, in the dictum in Mandishayika v Sithole HH 798-15, CHITAKUNYE J (as he then was) stated that: “An affidavit is a written statement made on oath before a commissioner of oaths or other person authorized to administer oaths. The deponent to the statement must take oath in the presence of the commissioner of oaths and must append his or her signature to the document in the presence of such commissioner. Equally, the commissioner must administer the oath in accordance with the law and thereafter must append his or her signature onto the statement in the presence of the deponent. The commissioner must also endorse the date on which the oath was so administered. These acts must occur contemporaneously.” [My own emphasis] I notice that Mr Mutero sought to distinguish the above case from the one before me. Whilst I agree that the matter which confronted CHITAKUNYE J dealt with the issue of a medical affidavit that was signed by the deponent (or rather, prospective deponent) and attested by a commissioner of oaths a year later, Mr. Mutero was oblivious to the fact that in terms of the said dictum, an affidavit must bear a date on which the oath was so administered. The dictum in the Mandishayika case is clear that the commissioner must also endorse the date on which the oath was administered. That is not the case in the present matter. Firstly, the affidavit is not dated, in HH 115 - 24 HC 10378/19 common practice it is usually dated using the advance organizer containing the words “THUS DONE AND SWORN TO AT…. ON THIS DAY OF…..”. In dealing with two affidavits that merely had a signature with no indication of who had signed it as a Commissioner of Oaths or where and when they had been attested to, the court in Twin Castle Resources (Private) Limited vs. Paari Mining Syndicate and Ors HH 153-21 relied on the above dictum in Mandishayika case above the court upheld the preliminary point that the affidavits were indeed defective. In casu, I must hasten to state that though the applicant’s heads of argument were well- researched nothing persuaded me to think otherwise. The applicant’s heads made a desperate attempt to sway the court’s mind to think that failure to endorse a date is not fatal. To allow this kind of practice in my view would most certainly lead to absurdity and chaos. I cannot phantom a situation whereby, litigants will come to court with affidavits that are not dated or not endorsed when the oath was taken before a commissioner of oaths. Accordingly, the point in limine regarding the defective founding affidavit has merit. In the result, I grant the following order: 1. The point in limine raised by the respondent be and is hereby upheld. 2. The application be and is hereby struck off the roll. 3. The applicant shall pay costs of suit. CHINAMORA J:……………………………… Caleb Mucheche & Partners, applicant’s legal practitioners Chiminya & Associates, respondent’s legal practitioners