Dube v Helfer and Ors (HB 4 of 2007) [2007] ZWBHC 4 (10 January 2007)
The founding affidavit was improperly deposed by the legal practitioner who lacked personal knowledge and proper authority; without a valid affidavit, the application cannot stand and must be dismissed.
Source-derived case information.
- Citation
- [2007] ZWBHC 4
- Parties
- Applicant: Setha Seven Dube; 1st Respondent: Joe Solly Helfer; 2nd Respondent: Deputy Sheriff; 3rd Respondent: Officer in Charge (ZRP), Bulawayo
- Court
- Bulawayo High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HB 4 of 2007
- Procedural Posture
- Application for Interdict / Judgment on Preliminary Objection
- Outcome
- application dismissed with costs
- Legal Topics
- Founding Affidavit, Authority to Institute Proceedings, Interdict
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Setha Seven Dube
Applicant
Joe Solly Helfer
1st Respondent
Deputy Sheriff
2nd Respondent
Officer in Charge (ZRP), Bulawayo
3rd Respondent
Procedural Posture
Application for Interdict / Judgment on Preliminary Objection
Legal Issues
- 1 Whether the founding affidavit deposed by applicant's legal practitioner is proper
- 2 Whether the legal practitioner had authority to institute the application
Ratio Decidendi
The founding affidavit was improperly deposed by the legal practitioner who lacked personal knowledge and proper authority; without a valid affidavit, the application cannot stand and must be dismissed.
Court Disposition
application dismissed with costs
Orders
- Application dismissed with costs on the legal practitioner and client scale
Full Case Text
Judgment text and source record
1 paragraphs
Judgment No. HB 4/07 Case No. HC 1215/05 XRef HC 892/05 SETHA SEVEN DUBE Versus JOE SOLLY HELFER And DEPUTY SHERIFF And OFFICER IN CHARGE (ZRP), BULAWAYO IN THE HIGH COURT OF ZIMBABWE MDOU J BULAWAYO 11 JANUARY 2007 G Nyoni, for applicant N Fuzwayo, for 1st respondent Judgment NDOU J: The applicant seeks an interdict to stop 1st respondent from selling or disposing of a Nissan CBB truck registration number 501265C. The truck is subject matter of the application in HC 892/05. 1st respondent has raised a point in limine in that the applicant did not file a founding affidavit. It is common cause that founding affidavit was filed by the applicant’s legal practitioner of record. The reason given for such an unusual procedure is that the applicant resides in Plumtree. Plumtree is just around 100 kilometres from this court. Going through the founding affidavit I am in agreement with the 1st respondent that it was improper for the legal practitioner to depose to the founding affidavit on behalf of the applicant. The legal practitioner has no personal knowledge of the kind of averments he makes. The contents of his affidavit are mainly hearsay. Further, the Power of Attorney on which the legal practitioner relies upon for his authority does not authorise him to institute this application. He needed to have proper and specific authority to commence these proceedings. His affidavit being Judgment No. HB 4/07 Case No. HC 1215/05 XRef HC 892/05 improper, must be expunged from the record. Once the affidavit is so removed, the whole application falls away. Accordingly, the application is dismissed with costs on the legal practitioner and client scale. Majoko & Majoko, appliacant’s legal practitioners Calderwood, Bryce Hendrie & Partners, 1st respondent’s legal practitioners 2