Online Reporter
Trust Maanda
Legal Position
IN court proceedings, the founding affidavit is everything.
Unlike a trial where there are oral witnesses, the court decides the case on paper.
If your affidavit is defective, your entire application can be struck out as invalid.
Zimbabwean courts have been consistent: an affidavit is not just “a letter you signed”. It must meet strict formalities. The law on this is now settled.
Here are the essential requirements for a valid affidavit, drawn from the High Court and Supreme Court authorities.
1. It must be a written statement made under oath or affirmation
The starting point is the definition. In Prosecutor General v Makarichi and Two Others HH 502/23, the court defined an affidavit as “a statement, in documentary form, sworn to before a commissioner of oaths…”
The key words are “sworn to”. An affidavit is different from a mere letter or statement because it is given under oath. That oath imports solemnity and the risk of perjury if it is false.
Muzanenhamo v Gadaga & Ors HH 65/2006, put it bluntly that where a document does not demonstrate that it was sworn before a competent commissioner of oaths, “it is not an affidavit, but a mere written statement.”
A mere written statement cannot be used in court application proceedings.
2. The deponent must take the oath in the presence of the commissioner.
The physical presence of both parties is non-negotiable.
In Mandishayika v Sithole HH 798-15, CHITAKUNYE J explained the process:
“The deponent to the statement must take oath in the presence of the 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.”
“Contemporaneously” means all at the same time. The deponent cannot sign at home, then take the document to a commissioner to just stamp it later.
S v Hurle & Others (2) 1998 (2) ZLR 42 reinforces this.
GILLESPIE J said a commissioner “has a duty… to have the deponent appear before him. He has no excuse for not administering the oath, for not calling upon the deponent to swear that the deposition is, to the best of his knowledge true in every respect.”
If the commissioner did not see you swear, the oath was not administered.
3. The commissioner must sign and date in the presence of the deponent
The commissioner’s signature is not just a stamp. It is an assurance.
Per S v Hurle: “The commissioner’s own signature is an assurance that all these procedures have been complied with.”
The commissioner must also endorse the date on which the oath was so administered. This is why commissioners must also state their full name, area, and capacity. The court must be able to identify who administered the oath and that they were authorised to do so. The commissioner must be identified as such.
4. The affidavit must contain an attestation clause
This is where many documents fail. There must be words on the face of the document showing that it was sworn.
Typical clauses are: “Sworn to at Mutare on this 9th day of September 2026 before me.”
The absence of these words is not a technicality. Courts treat it as fatal.
The absence of the words ‘Sworn to’ or ‘Thus done and sworn to’ is not a trivial defect. It goes to the very existence of the affidavit.
An unsworn statement cannot found motion proceedings. Without an attestation clause, the document does not “reflect that the oath was taken.
Where there is no valid affidavit, there is no valid application.
Why are courts so strict?
Because motion proceedings are decided entirely on affidavit evidence. There are no witnesses to test in cross-examination.
The applicant’s case stands or falls on averments made in the founding affidavit and not upon subsequent pleadings.
If the founding affidavit is invalid, then there is no evidence before the court. The application becomes a nullity and can be dismissed.
Before filing, ask:
1. Was it sworn? Does it say “Sworn to” or “Affirmed”?
2. Were you present? Did you sign in front of the commissioner?
3. Did the commissioner sign and date? In your presence, and at the same time?
4. Is the Commissioner identified? Name, designation, area, and stamp?
5. Is the clause at the end showing place, date, and how oath was taken, included?
If the answer to any is no, the affidavit is invalid
The requirements are not a mere formality. They ensure that the person swearing understands they are under oath, and that the commissioner has verified identity and willingness to swear.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646 or [email protected]
