Introduction
Most people are familiar with lawsuit by way of action proceedings based on summons or application proceedings through court applications. There are court rules to be followed during litigation. In this article I look at three main types of affidavits used in court applications, namely:
- Founding affidavit.
- Opposing affidavit.
- Answering affidavit.
Founding affidavit
In court applications such applications are supported by one or more affidavits setting out the facts upon which the applicant relies and copies of all the material and relevant documents that establish the claim or allegations. A founding affidavit is deposed to by an applicant. Its key elements or information therein include the following:
- Name of the court, for example the High Court of Zimbabwe at Harare.
- Case number for the particular case.
- The parties to the court application, being the applicant and the respondent(s).
- Title of the document or form, for example “Applicant’s Founding Affidavit”.
- Full name of the person deposing to the affidavit.
- Taking of oath, for example “…. do hereby make oath and state that……”.
- Parties and recitals, essentially giving background to the case.
- Averment that the court has jurisdiction over the matter.
- Explanation of the nature of the application and the remedies or reliefs being sought by applicant.
- Rules of the court being relied upon for example section / rule 29 of the High Court (Commercial Division) Rules, 2020.
- Facts to which the application is based. This normally includes relevant documents included as annexures.
- Explanation of the reliefs or remedies being sought and justification thereof.
- Prayer, which normally reads “Wherefore, I pray for an order in terms of the draft order attached to the application”.
Opposing affidavit
Upon receiving a court application served by applicant, respondent files a Notice of Opposition accompanied by one or two opposing affidavits supported by relevant documentary evidence in the form of annexures.
The following are the key elements or information normally included in an opposing affidavit:
- Name of court, for example High Court of Zimbabwe at Harare.
- Case number, parties, title of the document that it is Respondent’s Opposing Affidavit.
- Name of the deponent of the affidavit, that he or she is making oath and making averments under oath.
- Points in limine, also known as preliminary points of objection such as lack of locus standi or lack of jurisdiction by the court over the matter.
- The opposing affidavit will then address, in opposition, each and every paragraph in the applicant’s founding affidavit and may include evidence by respondent attached thereto as annexures.
- It will include a prayer, for example for the dismissal of the application with costs.
Answering affidavit
After the respondent’s opposing affidavit, the applicant, if he or she so chooses, may file an answering affidavit. The answering affidavit will deal with issues raised by the respondent in his or her opposing affidavit.
Conclusion
Founding, opposing and answering affidavits are central in court applications. In the case of an applicant, they introduce evidence in support of the application. In the case of a respondent, they introduce evidence in opposition of the application.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice. It is not targeted at anybody.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deal and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity. He can be contacted on +263 772 246 900 or gohofisi@gmail.com
