Gutu vows to fight Chamisa to the very end

Is it competent to file an answering affidavit in an urgent chamber application?

Given my conviction in this case, I do not think it is necessary to consider in detail the appropriateness or otherwise of filing an answering affidavit in an urgent chamber application. I must however make the observation in passing that an urgent chamber application by its very nature represents a departure from strict adherence to court rules. It might be necessary to give all the parties involved adequate platform to express their respective positions before the court makes a determination. I say this with great respect to the position taken by my brother Judge, MANGOTA J in the case of Imperial Refrigeration v Willard Mabvuwu' where he took the view that the filing of an answering affidavit was not appropriate in an urgent chamber application. What is improbably pertinent in this case is for me to reaffirm the position of the law as observed by my sister Judge MAKONI J in the case of Patson Murindagomo and Ors vs The National Chairperson of Movement for Democratic Change when she noted, by borrowing a leaf from Hebstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th Ed at page 440 where the authors state that:

“The general rule which has to be laid down repeatedly is that an applicant must stand or fall by the founding affidavit and the facts alleged in it, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated there, because those are the facts that the respondent is called upon either to affirm or to deny."

The respondents in this case were called upon to respond to the allegations as contained in the founding papers which for some reason had the party's constitution conspicuously excluded. When served with the respondents' opposing papers which had a constitution attached, they then sought to belatedly attach the party's constitution yet their case was supposed to be founded upon the constitution. An answering affidavit can never be mistaken for a founding affidavit. There is sense in the argument raised by Professor Madhuku that the nonfiling of the party's constitution in the founding papers was fatal to the applicant's application. Fortunately for the applicant this case is not going to be determined on this technicality.

Taking into account all the issues that I have highlighted, this case cannot go beyond the preliminary points raised by the respondents. I uphold the points in limine.

The application is dismissed with costs.

Atherstone & Cook c/o Webb, Low & Barry incorporating Ben Baron & Partners, applicant's legal practitioners

T.J. Mabhikwa & Partners, respondents' legal practitioner

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