Page |1
JURISDICTION OF THE HIGH COURT
The High Court is created by the High Court Act Cap 7:06. It has jurisdiction
under both common law and statute. In terms of the common law the High Court
has inherent jurisdiction – it can order anything or determine any case which is
not prohibited by law. However note provisions of S53 of the HC Act. In terms of
that section is somebody takes a matter to the HC which could have been heard
in the magistrates court then if that person is successful or if they are successful
they shall not recover any costs in excess of those which would have been
recovered if they had instituted the proceedings in the magistrates court. If not
successful they will be ordered to pay costs on a higher scale of a legal
practitioner and client.
There are a number of cases with inherent jurisdiction.
Nyaguwa v Gwinyai 1981 ZLR 25
In that case the petitioner and respondent had entered into a contract of lease in
respect of business premises on the 15th of July 1976. The monthly rental was
$120.00 payable in cash in advance at the shop on or before the 5 th day of the
month. Upon breach of the contract the landlord (respondent) was entitled to
cancel the lease, eject the tenant regardless of any previous acceptance of late
payment. In the lease agreement the parties had agreed to submit to the
jurisdiction of the magistrate court Salisbury in respect of any case relating to the
agreement. In December 1980 the responded issued summons claiming
cancellation of the agreement and ejectment of the petitioner on the basis that on
14 different occasions between February 1979 and June 1980 the petitioner had
paid later than the 5th day of the month. The petitioner did not see the summons
so a default judgement was entered and a warrant of ejectment was issued. The
petitioner saw the warrant when it was served on 16th January 1981. On the 19th
of Jan 1981 the petitioner filed a petitioner with the HC seeking the order
restoring the property to him pending the application for rescission of default
judgement granted by the magistrates court. The petitioner was relying on the
High Court’s jurisdiction to remedy injustice.
Held: Neither the HC nor any other court may overrule the decision of another
court save the extent that power to overule such a decision has been confered
upon it by statute.
Held: The application by the petitioner should be dismissed because the High
Court had no jurisdiction to interfere with the proceedings of the magistrates
Court.
Read Granger v Minister of State (1984 (1) ZLR 194
Midlands Chemical Industries Pvt Ltd v Scotfin& Anor HH 20/91
1
Page |2
It involved a sale in execution by public auction by the messenger of court in
which they were certain irregularities. The applicant who was the judgement
debtor in the magistrate court sought to have the sale set aside on the basis of
these irregularities. It was argued amongst other things on behalf of the 2 nd
respondent who was the purchaser of the property that although the HC has
inherent jurisdiction to restrain irregularities in the proceedings of inferior courts,
this inherent power remained to be exercised only where the civil court rules
gave no express remedy.
Held: At the time the magistrate court civil rules SI 290/80 did not provide for
rescission of sales in execution so this was a proper case for the HC to
intervene.
On the merits, the court decided that the messenger of court did not adhere to
the principles of justice as required by the common law and thus the court
granted the application to set aside the execution.
Bheka v Disablement Benefits Board SC 45/94 1994 (1) ZLR 353.
The appellant was injured whilst driving the army lorry as a result of which he
became disabled. He applied for disability compensation in terms of the state
service Disability Act. The application was made in terms of the Act to the
Disablement Benefits Board. The respondent refused his application on the
ground that his injuries had been caused by serious negligence or alternatively
serious misconduct on his part. He appealed unsuccessfully to the DB Appeal
Board and he made a further appeal to the SC.
Held: The SC had inherent jurisdiction dealing with matters such as the
appellant case like the HC.
The court noted that there was no right to appeal to the SC under the State
Service Disabilities Act. The court further held that the SC inherent jurisdiction
extended only to procedural matters. Chief Justice Gubbay as he then was
quoted the approval by the SA case of Chunguete v Minister of Home Affairs and
Ors 1990 (2) SA 836 in which Flemming J stated at 848 G – H “what is
appropriately inherent jurisdiction is related to the court’s function towards
securing a just and respected process coming to a decision and is not a factor
which determines what order the court may make after due process has been
achieved. That is a function of the substantive law. The court always is charged
with holding the scales of justice. It is not within its task to add weights to the
scales by detracting from a right given by a substantive law or granting a right not
given by the substantive law:
Held: The exercise of the inherent jurisdiction was entirely within the discretion
of the court.
2
Page |3
Statutory Provisions which gives Jurisdiction
•
•
•
•
SC is only appellate case
S24 of the Constitution: where a person is alleging the violation of rights he
can apply to the SC Granger (supra)
Conjwayo SC 1991 No. 17; 1991 (1) ZLR 105
In re Mulambo 1991 (2) ZLR 339
The case was referred to the SC in terms of s24(2) of the Constitution and it was
referred by a magistrate courts. The applicant was alleging that his rights to be
afforded a fair hearing within a reasonable time as required by S18(2) of the
declaration of rights has been infringed. The applicant was arrested on the 3 rd of
October 1986 on suspicion of theft by conversion. He was detained for two wks
and later released on bail. He was formerly charged on the 15 th January 1987
and he was remanded on at least 12 occasions between 2 August 1986 and 23
August 1987. On that date the charges where withdrawn before plea. On the
28th of August 1990, 3 years later the applicant was served with summons to
appear in court to answer on the same charges (no longer fraud but theft by
conversion). The case was further postponed to 2 April 1991 because the
applicant LP had not been furnished with the relevant documents despite having
requested then several times in writings. He opposed in court on 2 April 1991
and applied for referral to the SC in terms of s24(2) of the Constitution and it was
denied. He appeared on the 3rd April 1991 on similar application which was
granted.
Held: The applicant’s rights in terms of s18(2) for fair trial had been infringed
and the court ordered that the proceedings against the applicant should be
permanently stayed.
Ephraim Mhlanga v the State SC 134/94
The applicant was charged in contravention of s3(1)(a) of the Prevention of
Corruption Act. He was convicted and sentenced to 30 months imprisonment
with labour on which 10 months were suspended on conditions. He appealed to
the SC against both the sentence and conviction and on the appeal one of the
arguments he raised is that his right to legal representation in s18(3)(d) of the
Constitution had been violated because the magistrate refused to postpone the
mater to enable him to seek legal representation of hi sown choice.
Held: The Constitutional issue should have been raised with the court a quo
(magistrates court) or for referral to the SC. However the court noted that even if
the issue has been improperly raised it was without merit because the appellant
was to blame for the circumstances that gave rise to the denial of the
postponement. Appeal was dismissed on the merits.
3
Page |4
•
•
•
•
S37A of the National Social Security Authority Act allows parties to present a
special case on issue of law before the SC.
In terms of S71 (1) of the Patents and Trademarks Act the patents tribunal
can assume the role of the SC in specified matters – in terms of s19 (1) of the
Liquor Act an appeal against a decision of the Liquour Licensing Board goes
to the Administrative Court and not to the SC.
In terms of s22 (2) of the Water Act as repealed and substituted by s19 of Act
39/79 the Administrative Court has exclusive jurisdiction in regards to
application on the use of public water and disputes regarding use of public
water.
Rule 18 of HC prohibits issuing of summons against the judges of the HC,
President in his official capacity except with the leave of the court.
Common Law Limitations
•
•
•
•
Fugitives from justice have no audience in the court e.g a person who ran
away from legal obligations.
Subject matter – outside the jurisdiction of Zimbabwean courts e.g immovable
property situated outside Zimbabwe. Go to the place and property is situated.
Revenue law is subject to bilateral agreements but revenue laws of another
country cannot be enforced in Zimbabwe.
Political law formed in other country.
PRINCIPLES OF COMMON LAW: JURISDICTION OF HC IS EXERCISED
(I)
actor sequitor forum rei: plaintiff follows the defendant to his or her forum
(the court with jurisdiction over that person). HC have jurisdiction over all
persons domiciled in Zimbabwe. Domicile is a place which a person
regards as a permanent home. If the person is resident in Zimbabwe the
court has jurisdiction live and have some interests in Zimbabwe.
(II)
Doctrine of submission : At common law a person who is neither resident
or domiciled in Zimbabwe can submit to jurisdiction.
(III)
Doctrine of effectiveness: this is where the court refuses to exercise
jurisdiction in certain instances if it views that their judgment will not be
enforceable in Zimbabwe (brutum fulmen – empty noise avoided).
Specific Principles
(i)
•
Matrimonial claims in terms of both common law and statute.
At Common Law
Divorce, judicial separation and nullity of marriage.
4
Page |5
(a)
Divorce: The court that has jurisdiction at common law is the court of the
matrimonial domicile at the time of institution of proceedings. It is the
husband’s domicile. Le Mesurier v Le Mesurier & Ors 1895 AC 517. It
was an appeal from the SC of Silon. The appellant sued the defendant for
divorce on the grounds of her adultery with three respondents. The
District Court in Silon granted the divorce. The decision was reversed by
the SC which intimated that the D. Court had no jurisdiction to grant
divorce. The marriage had been solemnized in England. Both parties
were not domiciled in Silon and non of the co-respondents resided in
Silon. As part of the divorce settlement the wife was entitled to property
which included some land not in Silon.
Held: According to the common law the domicile for the time being of the
married pair affords the only true test of jurisdiction to dissolve their
marriage pg. 540.
Glen v Glen 1971 (3) SA 238
The applicant instituted matrimonial action against the defendant seeking
a decree of divorce on the ground of cruelty. The respondent counterclaimed for divorce on the grounds of adultery. In addition, the respondent
filed a special pleas in bar on the ground that the court had no jurisdiction
because he was born and domiciled in Zambia. In that case the
matrimonial home was Zambia.
Held: It was well established that the only court which has jurisdiction to
entertain an action for divorce is the court in whose area the parties are
domiciled at the time of the institution of the action. Pg 240. N.B
Institution of proceedings means time summons have been issued.
(b)
Judicial Separation
Three are three courts which can have jurisdiction
(i)
(ii)
(iii)
C.
either the court of the domicile or residence of the parties at the
time of institution of proceedings for judicial separation
the court of domicile of either party at the time of institution of
proceedings
the court of the area of the celebration of marriage.
Nullity (Degree of Nullity)
This depends on whether the marriage is void of voidable. With void
marriage it is invalid but through some occurrence it can be validated.
There are four courts which have jurisdiction:-
5
Page |6
(i)
(ii)
(iii)
(iv)
court of area of celebration of a putative marriage
court of area of common domicile
court of the area of the plaintiff’s domicile
court of the area of the defendant’s domicile
(Void Marriage)
Exparte Oxtorn 1948 (1) SA 1001 CPD
The applicant applied for leave to institute proceedings for decree of nullity
by a process called edicatal citation. The parties h ad been married in
England in 1936. The applicant subsequently discovered that the
respondent was married in 1929 which still subsisted. The applicant had
emigrated to the Case SA in 1947.
Held: Despite the fact that the marriage had been contracted beyond the
court’s jurisdiction (England) and the respondent had never been resident
or domiciled in Cape the court had jurisdiction by virtue of the applicant’s
domicile.
Exporte Cathrall 1965 (2) SA 505 NPD Application to sue by edictal
citation. The applicant was born in England and she had married the
respondent in 1963 and the parties separated two months later. She
returned to England but the responded remained in Australia. The
respondent was a Zulu man born in SA Durban who resided in Natal until
February 1963 when he sailed to Australia as a sea man and decided to
stay there. The applicant had information that the Australian Immigration
Department had allowed the respondent to stay in Australia. The
applicant applied for nullity of marriage on the ground that it violated the
Prohibition of Marriages Act of 1959.
Held: Court had jurisdiction because the respondent was domiciled in SA
irrespective of the fact that they had been allowed to stay in Australia.
N.B: Under common law, the law relating to voidable marriages is similar
to that common law relating to divorce. The court of the matrimonial
domicile has jurisdiction. Exparte Oxform (supra) pg 1014-1015.
30/03/04
S3 of the Matrimonial Causes Act 5:13 Act 33/85. It gives the HC additional
jurisdiction if the plaintiff or applicant is the wife. It applies to cases of divorce,
judicial separation and nullity of marriage.
There are three specific situations:
6
Page |7
•
•
•
S3(a) if the wife has been deserted by the husband and immediately before
the desertion the husband was domiciled in Zimbabwe even if the husband
has since changed domicile after desertion.
S3(1)(b) if the marriage was celebrated in Zimbabwe and the wife was
resided in Zimbabwe for a period of at least 2 years immediately before the
date of commencement of action and is still resident in Zimbabwe at the time
of commencement of action even if the husband has never domiciled in
Zimbabwe.
S3(1)(c) if the wife is a citizen of Zimbabwe at the time of commencement of
action and she has been ordinarily resident in Zimbabwe for a period of at
least 2 years and is still resident in Zimbabwe.
Read: Kennedy v Kennedy 1978 RLR 58
Braimah v Braimah HCH 66/96
Mandbaur v Mandbaur 1983 ZLR 26
Claims Sounding in Money (for payment of money). There are common law
principles and this depends on whether the party is an incola or a peregrinus.
An incola is a person who is either domiciled or resident within the court’s
jurisdiction. A preregrinus is a person who is neither resident or domiciled in
Zimbabwe or within the court’s jurisdiction.
(a) suing defendant who is preregrinus. Different principles apply whether the
plaintiff is an incola or a peregrinus.
Incola Plaintiff v Peregrine Defendant
They are three different circumstances in which the courts have jurisdiction at
common law.
(1)
(2)
If the defendant submits to the court’s jurisdiction (doctrine of submission)
If it is the court within whose area of jurisdiction the cause of action arose.
Cause of action is not enough because of the doctrine of effectiveness.
The court will not hear the claim unless the peregrine defendant either had
no property in Zimbabwe which can be attached to confirm the jurisdiction
of the court or the peregrine defendant is in Zimbabwe and can be
arrested to confirm the jurisdiction.
Thermoradiant Oven Sales (Pty) Ltd v
1969 (2) SA 295 AD.
The plaintiff was incola and defendant peregrinus. The plaintiff purchased
a bakery oven form the defendant for R16 000. The oven was installed in
the plaintiff’s bakery. The plaintiff had paid almost R13 000 upon delivery.
The balance of about R3000 would become payable after the oven had
7
Page |8
been tested and found to be satisfactory. The oven was found not to be in
accordance with the warranties given. The plaintiff cancelled the contract
and claimed damages of R22000. The defendant denied liability and
counter-claimed the outstanding balance of R3000. The plaintiff applied to
attach the defendant’s claim to found jurisdiction. The plaintiff succeeded
and the defendant appeared.
Held: It is established that an existing claim by the prospective peregrine
defendant against the prospective incola plaintiff is attachable to found
jurisdiction in the proposed action . However the plaintiff can not attach a
claim which it is denying – cannot approbate and reprobate whether the
value of the property to be attached should bear some relationship to the
claim.
Held: Decided that the property should confirm with the requirements of
the doctrine of effectiveness although it does not have to be sufficient to
satisfy the judgement which may be given in the case – it must not be
trifling value.
(3)
Where there is attachment of property or arrest of the peregrine to found
and create jurisdiction (Thermodiant (supra) Central African Airways
Corporation v Vickers Armstrong Ltd 1956 (2) SA 492.
This was an appeal from the decision of the HC-S-Rhodesia. The claim
arose from the loss of an aircraft whilst on a flight over Tanganyika
(Tanzania). The plaintiff was incola and defendant peregrinus. The
aircraft had been supplied by the defendant. The crush was caused by
the breakup of the air craft following the fracture of a win which was
caused by collision of a bolt hole. It was alleged that the defendant had
been negligent in that he had used an unplated bolt which was susceptible
to corrosion and yet did not make the bolt accessible to inspection nor
indicate that the inspection was necessary.
The plaintiff’s claim was for 199.84 and the plaintiff sought to attach a debt
owed to defendant of 399. The plaintiff sought to attach to found
jurisdiction. The court discussed the relevant authorities of arrests and
attachments to found jurisdiction ad concluded that Roman-Dutch
common law position is that an incola plaintiff can attach the property of
the peregrine defendant to found jurisdiction even though there is no other
ground to jurisdiction.
Peregrine Plaintiff v Peregrine Defendant
(i)
The court will have jurisdiction if there is submission to the jurisdiction of
the court. By instituting proceedings in that it would have accepted
jurisdiction.
8
Page |9
(ii)
If the cause of action arose within its area and there is attachment of
property or arrest of the peregrine defendant to confirm jurisdiciton.
(iii)
S15 of the HC Act provides that actual attachment of the property or
actual arrest of the defendant is not necessary as long as it has been
established that there is indeed property which can be attached within the
jurisdiction or that the peregrine defendant is actually within the jurisdiction
and can be arrested. This was emphasised in Exparte Motor Construction
Ltd 1962 (2) SA 664.
Facts: Application for leave to attach on asset in order to confirm jurisdiction.
To found jurisdiction was wrong because plaintiff was incola. The defendant was
a preregrine from Portuguese East Africa Durban. The property attached was a
bull dozer engine which was within the court’s jurisdiction. The court confirmed
the meaning of s15 which states that no actual attachment is necessary unless
there are special reasons. The court gave examples where the plaintiff seeks
actual attachment.
(1)
(2)
where property is attached to found or confirm jurisdiction is the subject
matter of dispute in question so as to prevent its removal from other
jurisdiction.
Where the property sought to be attached to found or confirm jurisdiction
is the only property that the peregrine defendant has within the jurisdiction
and there is a danger of its removal from its jurisdiction.
The court emphasised that it is important to state value of the property if the
plaintiff seeks attachment because if the value greatly exceeds the claim then it
might be inequitable to attach. Conversely if the value is much less than the
claim although not trifling then it might not be necessary to order attachment.
In this particular case a leave to attach property was granted because there was
a danger it might be removed.
S15 does not create a new ground for jurisdiciton for the HC in situations where
defendant is peregrine. Where neither the peregrine defendant nor his property
is within the jurisdiction of the HC then the court has no jurisdiciton.
See African Distillers Ltd v Zietkiewiz 1980 ZLR 135
Both the plaintiff and defendant were peregrin. It was an action for damages
arising from breach of contract and the parties were seeking to rely on s15. The
court had no jurisdiction because neither the property of the peregrines nor the
person was unavailable within the jurisdiction of Zimbabwe or attachment for
arrest.
9
P a g e | 10
N.B An artificial person is a company incorporated in Zimbabwe is an incola or if
it is registered in Zimbabwe. All those incorporated outside Zimbabwe are
peregrin.
Property Claims
In terms of immovable property the court that has jurisdiction in relation to a claim
for immovable property is the court within whose area of jurisdiction the property
is situated.
Eilon v Eilon 1965 (1) SA 703 AD
In relation to movable property the situation is the same although it is still not
clear whether if the defendant if the defendant or peregrinus they should be
attachment to confirm jurisdiction – This issue was discussed in the case of
Voicemail Ltd vs Freighlink Malawi 1987 (2) ZLR 22. Both parties were
peregrine. The plaintiff had sold the defendant a quantity of peas in Malawi for
delivery to India via Harare and Beira. Half of the peas were shipped to India in
terms of the contract but while the other half were still in Harare the defendant
terminated the contract. The plaintiff applied to the HC for leave to attach a
consignment in Harare, confirm jurisdiction of the court, a claim for specific
performance. The HC decided against the plaintiff on the basis that the intended
action was a personal right rather than a real right. Alternatively the HC refused
application on the basis of the balance of convenience was in favour of the
matter being heard in Malawi than in Zimbabwe. On appeal the SC held that the
HIC had jurisdiction on the baiss of forum rei state (court of the place where the
property was situated) and this applies whether the right claimed in relation to a
particular property is a real or personal right.
Read: A critique of the above done by P. Nherere 1986 ZLR Vol. IV 173
PARTIES
(a)
Parties need to have legal capacity to use or defeat proceedings. Legal
capacity is also referred to as locus standi. Locus standi can be in general
for natural persons with the exception of certain category of people who
are under legal disabiity e.g minor is sued in the name of guardian or in
their own name assisted by the guardian. If they have no guardian seek
an order that a curator ad litem be appointed. The same applies when the
interests of the guardian conflicts with those of the minor child.
(b) mentally incapacitated: Any proceedings against them are instituted by a
curator ad litem.
(c) People declared insolvent: represented by the Trustee
(d) Woman married in community of property: husband institutes the action
10
P a g e | 11
(e) Prodigal: it’s a person who is financially irresponsible and is represented
by a curator bonis of ad litem.
(f) Alien enemies – cannot sue – it’s a person in a country in a declared state
of war.
(g) Fugitives cannot sue
(h) MPs cannot be sued in terms of privileges of Immunities Powers Act.
(i) Diplomats: Privileges and Immunities Act only in cases of governmental
nature
(j) President: s30 of the Constitution in his personal capacity. In his official
capacity he can be sued with the leave or permission of the court in terms
of R18 of HC rules.
Artificial Persons
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Artificial person is a government (state) in terms of States Liabiities Act. A
responsible Minister or head of Department concerned is the defendant in
terms of S3. Cite the Minister by title and not by name e.g XV Minister of
Lands in terms of S3.
-Local authorities and municipalities e.g RDC
Statutory bodies e.g Universities
Parastatals e.g ZESA; ZWA
Companies incorporated under the Companies Act
Co-operatives incorporated under Cooperative Societies Act
Common law univeristas (e) – body which is regarded by common law.
There are three (3) elements to be satisfied.
(i)
It must have an entity which is distinct and separate from its
individual members.
(iv)
It must have perpetual sucession – a life which extents beyond the
life of its members
(v)
it is capable of owning property separately from its members.
See: Morrison v Standard Building Society 1932 AD 229.
The respondent was an incorporated building society which brought an
action against the appellant for ejectment from premises situated in
Pretoria and for damages. The appellant consented amongst other things
11
P a g e | 12
that the defendant had no locus standi. The argument was dismissed in
the TPD.
Held: An association of individual does not always require the special
function of the state inorder to enable it to hold property or to use its
corporate name whether or not it can depend on the nature of the
association, its constitution, its objectives and activities. The court
concluded that the standard for building society have been formed in 1891
and these activities had not at any time been interferred with. Also its
possessed the characteristics of a universitas.
Unification Church of Zimbabwe v Kundiona & Ors HCH 94/93
The applicant was seeking to bring certain companies under judicial
management pending the removal of the respondent as directors of the
companies. The respondents raised a point in limine (in limine – point
raised at beginning of proceedings) that the applicant had no locus
standi. The applicant had been registered in 1977 as a welfare
organisation under the Welfare Organisation Act. The Constitution of the
applicant gave him among other powers to purchase and acquire property
both movable and immovable and to carry on business with a view to
increasing the revenue of the association and also to institute and defend
legal proceedings.
Held: The court found that although conformed to the requirement of
common law universitas, the application should be dismissed because the
applicant had not used the name to its constitution described as the
Unified Family. The second reason was that the deponent of the founding
affidavit did not have authority to depose to the affidavit as required by the
Constitution.
Moloi v St John Apostolic Faith Mission 1954 (3) SA 940
PARTNERSHIPS
•
Generally they do not have locus standi as well as other voluntary
associations which do not meet the requirements of common law universitas.
However Order 2A of HC Rules gives some partnerships and associations
locus standi.
PARTIES – locus standi
•
A person must have an interest in the matter to institute proceedings. It has
been described as direct and substantial interest and real interest.
Zimbabwe Teachers Association & Ors v Minister of Education and Culture
1990 (2) ZLR 48.
12
P a g e | 13
Facts
They were teachers who had been dismissed in terms of the Emerging
Powers Maintenance of Essential Services Regulations SI 160A/89. The
Zimbabwe Teachers Association sought an order seeking (reinforcement of)
reinstatement of teachers. Dismissed teachers were also part of it. The point
in limine was that whether ZTA had locus standi.
(ii)
whether the 3 dismissed teachers who sought to be involved in the
proceedings could be joined at that stage.
Held: On the first one the court ordered that the teachers had real and
substantial interest in the matter. Secondly three teachers had sufficient interest
in the matter to be joined as parties.
Sibanda & NPSL v Mugabe & Anor HH 102/94
Sibanda was the secretary general of the NPSL. He was suspended by ZIFA
and Mugabe was the Chairperson. The proceedings were brought on review by
Sibanda on the basis of jurisdiction, interest in the company was biased, malice
and seeking that the decision and punishment reached were unreasonable.
The respondent claimed that the NPSL had no locus standi because it sought no
relief and no order was made against him by ZIFA and therefore its interest in the
outcome of the review was indirect. The response of the NPSL was that they
had the interest in the matter because as its secretary-general Sibanda carried
out various functions for it and saw the action against Sibanda was actually an
attack on them.
Held: The NPSL had direct and substantial interest in the matter therefore they
had locus standi to institute the review proceedings.
FORM OF PROCEEDINGS
There are two basic forms of proceedings which may be used for instituting
proceedings in the High Court (i) Application (ii) Action – summons and (by way
of notice of application or affidavit) affidavit of evidence.
There are circumstances were application procedures are not used e.g in
matrimonial matters; claims for unliquidatd damages – it means they are not yet
been qualified by the court and difficult to ascertain.
See Room Hire Co. v Jeppe Street Mansions 1949 (3) SA 1155
(iii)
claim for provisional sentence ie. O4 Rule 20 specifically says it should be
by way of summons.
13
P a g e | 14
(iv)
Civil imprisonment (go by way of summons O41 Rule 368)
There are situations were required to use application procedures.
(1)
where directed by statute
•
There are also cases where it is in the discretion of the person instituting
proceedings to go by way of application or action what should influence a
party”
•
If it’s a straight-forward money claim where you don’t anticipate any
opposition then it is less expensive to use action and application procedure.
Choose the less expensive one because if you use the more expensive one
you will be penalised with costs.
•
Whether or not there is a material dispute of fact. If there is a material dispute
of fact then don’t use application proceedings.
Room Hire Co. v Jeppe Street Mansion (supra)
This was an appeal from the decision of the WLD declaring the tenancy by the
appellant of certain premises belonging to the defendant to be null and void
under the provisions of s8 of Ordinance 46 of 1903. The grounds on which the
tenancy was declared null and void was that the premises were allegedly being
used as a brothel. The court had also ordered the ejectment of the appellant on
the premises. The applicant has resisted the application to eject him on three
grounds:
(i)
(ii)
(iii)
that there was a material dispute of facts which could not be resolved on
affidavit evidence.
the evidence adduced on the affidavit was insufficient to establish the
alleged improper use of the premises.
They had been an unqualified acceptance of the rent by the
applicant/landlord. It was argued a waiver of any breach of tenancy.
Held: On the issue of waiver of breach the court held that the facts the
respondent had no t been aware of the payment and had tendered return of
payment when he became aware of it. It was stated the lease was automatically
terminated when realised that the premises were being used as a brothel.
Held: On material dispute of fact the court held that for the defendant to allege
that there was a material dispute of fact he must establish a real issue of fact
which cannot be satisfactory determined without the aid of oral evidence. He
must not make a bare denial or merely allege a dispute. The court concluded
that the real dispute of fact had been shown and that the court a quo should have
hear oral evidence on the issue in terms of the rules. The matter was referred
back to court a quo for proper exercise of discretion to hear oral evidence.
14
P a g e | 15
With regard to dispute of fact it has been stated in the case law that the court
must not hesitate to decide an issue on affidavit evidence merely because it may
be difficulty to do so. It should adopt a robust view and endeavour to resolve the
dispute without the hearing of oral evidence if this can be done without doing an
injustice to either party.
Soffiantini v Mould 1956 (4) SA 150
The appellant was the owner and lessor of certain premises and the respondent
was the lessee. The appellant was interfering with the respondent’s occupation
of the premises. The respondent applied for and was granted an interdict
restraining the appellant from interfering with his occupation of the premises.
The appellant appealed against the granting of interdict in that
(i)
(ii)
there was a genuine dispute of fact which could not be resolved on
affidavit evidence.
The Judge a quo should have directed oral evidence to be heard.
Held: It is necessary to make a robust common sense approach to a dispute on
motion (application proceedings) as otherwise the effective functioning of the
court can be harm strung and circumvented by the most simple and blatant
strategy. The court must not hesitate to decide an issue of facts on affidavit
merely because it may be difficult to do so. Justice can be defeated or serious
impeded and delayed by an over fastidious approach to a dispute raised in
affidavti.” 154
See Joosab & Ors v Shah 1972 (4) SA 298
•
(i)
(ii)
(iii)
If the court discovered that there is a material dispute of fact and cannot be
resolved on affidavit, it has 3 options;
It can dismiss the application
The court can order the parties to go to trial in terms of O23 R159 of HC
Rules
The court can hear oral evidence on the issue in dispute in terms of O23
R159.
DISMISSAL OF APPLICATION
The court does that if the applicant should have been aware that there was a
material dispute of fact which cannot be resolved on affidavit evidence. See
Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232. This was a claim by
the applicant for damages for wrongful dismissal. The 2 nd respondent was the
deputy messenger of court. The applicant was claiming damages from the
messenger of court because the messenger of court had him arrested when he
15
P a g e | 16
resisted service of process. The process to be served was linked to the alleged
misconduct which had resulted in the applicant’s dismissal.
Held: The matter could not be resolved on the affidavit. The issue was whether
the court should refer matter for trial or dismiss it. In this issue the court noted
that the applicant’s LP had been warned by the respondents LP on service of
application that there was a fundamental conflict of evidence. The applicant’s LP
had disagreed and continued with the proceedings. The court noted that the
conflict of fact were glaring and obvious. The court further noted that the claims
for damages were clearly liquid and patently require oral evidence.
The court also said the messenger of court should not have joined with the
employer because was a separate claim. In conclusion the court declined to
exercise its discretion to refer matter to trial or hear evidence and application was
dismissed with costs.
(iv)
(v)
Refer matter to trial O23 R159
Chirinda v Chitepo and Anor SC 42/92
The appellant brought an application on the HC seeking cession and rights and
interests in immovable property in Chitungwiza which she said was sold to her by
Gideon Chitepo who was now deceased. The 1st defendant was the deceased
heir, 2nd respondent was the Chitungwiza Town Council. The appellant alleged
that the deceased and herself had entered into an agreement for the cession of
the deceased rights and interests in the property in May 1985. The appellant
was to pay $1 200. The appellant alleged that she paid the instalment of $600 in
May 1985 and the balance in March 1986. She alleged that the appellant and
the deceased were unable to sign the papers at Chitungwiza Town Council
because the deceased was employed in Kadoma and constantly visited his rural
home in Nyanga. The deceased had died on the 12 th March 1989. There were
several dispute of fact the major being whether the signature on the agreement
of cession was that of the deceased. The other dispute was whether the first
respondent was cited as Washington Chitepo but the actual name was Booker
Chitepo. The third dispute was that the appellant had alleged that the deceased
had died from injuries involved in a car accident but it was alleged that he died of
natural disease and produced death certificate as evidence.
The court held that fact one died a natural death and of the names was
immaterial. On issues of signatures, it was alleged that the first defendant was
privy to the negotiation. The court had dismissed application had differed
substantially with the one on the deceased drivers’ licence. On appeal the court
said that the dispute should have been referred to trial and it gave two reasons
(i)
They were other documents purportedly signed by the deceased which
had different signatures i.e marriage certificate, agreement of sale entered
into between the deceased and Chitungwiza Town Council.
16
P a g e | 17
(ii)
The daughters of the deceased who were witnesses to the agreement of
cession alleged that they had one so under duress.
The court held that these matters should only be investigated at trial. The appeal
was allowed.
See Duly’s Pvt Ltd v Brown SC 172/1993
See Jongani v Kadenhe SC 24/92
(iii)
Oral Evidence on the dispute should be heard )23 R159.
The court should not order the hearing of oral evidence if that order would
have the effect of converting the application proceedings into a trial.
Option will therefore be to refer the matter to trial.
Bhura v Lalla 1974 (2) SA 336.
It was an appeal from an order of HC setting aside a sale in execution.
The applicant’s father who was deceased had left the immovable property
in trust of his sons. The respondent was one of the administrators and
executors of the estate. The administrators had been found guilty of
maladministration and removed from the office as executors by the master
of the HC. However they had remained as administrators. During their
administration the estate incurred certain debts and certain creditors took
judgment against the estate amounting to 15 000. There were no liquid
assets in the estate although this could have been created if the HC had
been approached for permission to mortgage the movable property. The
administrators were unwilling to seek permission from the HC because it
will expose the fact that they had dissipated the liquid assets of the estate.
The executors appointed after removal of administrators misunderstood
their powers and thought that they could not act without the cooperation of
administrators. As a result of their inaction the immovable property was
sold in execution for $1000. The applicant applied for set aside of the sale
on the basis that the price was unreasonably law sum. The judge in the
HC was unable to resolve the issue on affidavit and adjourned the matter t
permit oral evidence and the subsequent hearing took a form of a trial.
The judge declared that the respondent had not proved that the price was
unreasonable although there was a possibility that the property was worth
more. He proceeded setting aside sale in that the property was not
supposed to be sold for a period of 10 years in terms of the will and that
the executors had failed in their duties in failing to mortgage the property
and that the interest of the beneficiaries of the will who was minor was
involved.
Held on appeal: On the question of procedure the court held that the
matter should have been referred to trial. Rule 159 on hearing of oral
evidence on application proceedings are not intended to convert the
proceedings into a trial.
17
P a g e | 18
On the merits the appeal was dismissed because the court agreed that
that interests of the minor should not be compromised. It also noted that
the HC is the upper guardian of all minors and has a duty to protect the
rights of minors.
Read Barklie v Bridle 1955 SR 350
Masango v Masango HH 324/84
Shana v Shana 1990 (2) ZLR 129
Zimbabwe Bonded Fibre Glass Pvt Ltd v Peech 1987 (2) ZLR 338
13/04/04
Demand
There are two instances where a demand is exercised
(i)
where you want to safeguard the costs of summons. If the plaintiff does
not make a demand serve summons. Upon receipt of the summons the
debtor pays and the plaintiff will not be entitled to the costs of the
summons. The only exception is where the date of performance of
obligation is fixed in terms of the agreement.
(ii)
Where a demand is required to complete the cause of action. Examples
are by statute i.e the State Liabilities Act – 60 days notice is required when
suing the state (b) by agreement between the parties (c) where a demand
is required to place the debtor in mora.
Pleading of a Demand
•
It is necessary if demand was necessary to complete the cause of action.
The form and content f the demand.
(i)
it should need not be in writing unless stipulated by statute or by
agreement between the parties.
(ii)
It can be by the creditor himself or by someone representing the creditor
i.e Legal Practitioner.
(iii)
The demand must give sufficient detail to enable the debtor to know the
basis upon which the creditor is making his or her claim.
(iv)
The demand must give reasonable time for the debtor to comply.
Reasonable time depends on the circumstances. Usually 7 days is given
to pay.
18
P a g e | 19
(v)
It is not necessary to threaten legal action.
Summons O3 R9-12, 14-16, 19 of HC Rules
•
The form to use in the summons is Form No. 2 but there is special summons
used in matrimonial proceedings i.e divorce, separation, Form 30A.
•
R10 – the summons must call upon the dependant to enter appearance to
defend if in he intends to oppose a plaintiff’s claim. The appearance to
defend must be entered at the registry specified in the summons. For
purposes of civil case the HC has two Registry offices in Harare and
Bulawayo. The summons will also require the sheriff or his deputy to serve a
copy of the summons on the defendant and make a return of service.
The Contents of the Summons
•
R11- The summons must state the full name of the defendant, the residence
of the defendant or place of business, if the defendant is sued in a
representative capacity that should be stated and also the capacity in which
he is being sued. If defendant’s full names are unknown state the initials, full
names and address of service of the plaintiff. State if plaintiff is suing in a
representative capacity, date of issue seen from the date stamp, state
concisely the nature, extent and grounds of the cause of action, the relief
sought.
•
The summons should give the defendant time upon which to enter
appearance to defendant (dies induciae) and its 10 days in HC Rule 17. It
excludes holidays and weekends O1 R4A .
•
If your claim is for a debt or liquidated demand you can endorse the
particulars of claim on the summons. You don’t have to file a declaration.
What is a claim for a debt or liquidated demand?
•
This is a claim for either a specific amount of money or one that is capable of
speedy and prompt assessment, claim of a specific thing.
Case: Fred & Anor v Keelan 1951 SR 7
A claim for an order declaring property specially hyphothecated in a
mortgage bond to be executable (sold in execution). The claim was held
to be a claim for a liquidated demand.
Mohr v Krier 1953 (3) SA 600
The plaintiff was claiming several things:
19
P a g e | 20
(i)
the sum of 1300 pounds being the balance of amount due in terms
of a deed of dissolution of partnership entered into between the
plaintiff and the defendant
(ii)
an order compelling the defendant to complete and deliver to the
plaintiff a promissory note in the plaintiff’s favour for the sum of
1000 pounds in terms of deed of dissolution of the partnerships.
(iii)
an order compelling the defendant to complete and deliver to the
plaintiff a stop order addressed to Tobacco Auctions Ltd authorising
the plaintiff to claim 1000 pounds from the proceeds of the sale of
the tobacco for the 1952-53 season.
The issue was whether these claims were a debt or liquidated demand.
Held: on the first claim it was held to be a claim of a debt or liquidated
demand because it was a fixed amount of money, certain.
Held: On 2nd and 3rd claims it was said although claims for debt or
liquidated demand they were also claims for specific performance and
failure to comply with these claims will be punishable by contempt of court
as no official could be substituted for the defendant. For that reason the
claim should not have been made on the endorsed summons.
SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2) SA
131. The plaintiff applied for default judgement on an endorsed summons
in which he claimed
(i)
a statement of account duly supported by vouchers of all premiums
received by the defendant
(ii)
the rebate of such account (an assessment of item so as to come
to a determination of an amount owing).
(iii)
payment of money owing to the account.
(iv)
order directing defendant to disclose all forms of policies in his
possession issued by the plaintiff and delivered to the
defendant.
Held: All of them were claims for a debt or liquidated demand except a
claim of whatever was found owing under the account because it was not
fixed.
Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498. A claim for
money stolen by the defendant from plaintiff was held to be a claim for
20
P a g e | 21
debt or liquidated demand but the claim for the value of goods stolen by
the defendant was held to be unliquidated.
See International Hardwork Cooperation 1971 (1) SA 404
Reached the same decision that claim for stolen money is a liquidated
demand and a debt.
Standwin Investment Pvt (Ltd) v Helfer 1961 (4) SA 470.
A claim for the value of goods as an alternative to the return of the goods
was held to be a claim for a debt or liquidated demand. The case involved
a claim for the return of a truck failing of which payment of 500 pounds
which was the value of the truck.
An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956
RN 148.
Fartis Engineering Co. Ltd v Vendick Spares Ltd 1962 SA (2) 736 TPD.
A claim for work done and material supplied was held to be a claim for a
debt or liquidated demand. The same conclusion was reached in
International Harvestor v Ferreira 1975 (3) SA 831 CPD.
Belingwe Stores (Pvt) Ltd v Minyembe 1972 (4) SA 463. A claim for the
value of shortfall of stock as per a written undertaking by the defendant
was held to be a claim for a debt or liquidated demand. The defendant
was storekeeper for the plaintiff and signed an undertaking to pay if there
is a shortfall.
Brooks & Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA.
A claim for confirmation of cancellation of an agreement of sale of certain
immovable property and ejectment of defendant from property was held to
be a debt or liquidated demand.
Atlas Assurance Co. Ltd v Goodman 1955 SR 328. A claim based on a
foreign judgement held to be a claim for a debt or liquidated demand.
Morris v Stern, 1969 RLR 427. A claim for ejectment was held to be a
claim for a debt or liquidated demand.
Dube v Sengwayo HHC 110/91.
A claim for holding over damages in respect of ejectment proceedings was
held to be a claim for a debt or liquidated demand because the damages
were easily ascertainable, simply look at rental value of the property and
also the period of which the lessee is an unlawful occupation.
Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 11.92.
21
P a g e | 22
A claim for the refund of $14 700 due to the defendant’s failure to supply
60 000 bricks. This claim was held not be for damages readily
ascertainable and therefore liquidated.
Midsec (Pvt) Ltd vs Ors v Standage HB 64/94. The claim was for
$100 000 payment based on a document which had been signed by the
defendant in which she had admitted that she had been fiddling the books
and stated as follows on the amount owed “I would not know the exact
amount that I would have taken but Mr Rumbold has said that if it is close
on to 100 000 which could be about right” The claim was held to be
unliquidated because the amount owing was not ascertained but merely
estimated.
Declaration
•
It’s a statement of the plaintiff’s claim. It must set out the nature,
extent and grounds of the cause of action, relief claimed. )17 R109,
110.
•
Where the relief claimed is founded upon separate grounds the
grounds must be stated separately and distinctly . R111.
•
The plaintiff may file R113 the declaration together with the summons
or may choose to do so later (Rule 112) but must do so within 12 days
of the date of appearance to defend by the defendant.
•
R114 – if the defendant satisfies the plaintiff’s claim in full within the
dice induciae and the plaintiff will not be allowed to recover the costs of
the declaration. However the court may order otherwise on good
cause shown.
•
R115 the plaintiff may amend his claim as stated in the summons in his
declaration. However if the defendant shows that he will be prejudiced
by such amendment the court will determine whether the amendment
should be made or not.
Service S20 (1) HC Act.
•
All summons of the HC has to be served by the sheriff or his property
or assistant deputy.
•
S20(2) allows that Sheriff to give special directions for the service of
any particular process by some person other than a duly appointed
deputy sheriff or assistant deputy Sheriff.
22
P a g e | 23
•
S20(3) provide t hat the return of service of the sheriff or deputy or
assistant deputy sheriff shall be prima facie evidence of the matters
stated in it.
•
S20(1) Any service in contravention of that provision will be invalid.
Case: Wattle Co. (Pty) Ltd vs Inducon (Pvt) Ltd 1993 (2) ZLR 108 H
On the 8th of April of 1993 on order was granted by the HC compelling the
defendant to file and serve its discovery affidavit within 5 days of the
service of the order. Failing which the plaintiff would be allowed to apply
to have the defence struck out and default judgment granted. The order
was served on the defendant’ legal practitioner by a Clerk in the employ of
Plaintiff’s Legal Practitioners. He was in default and the plaintiff applied
for default judgment.
Held: The service of the order by the clerk was not due and proper
service because it contravened S20 (1) of the HC Act which provides that
service should be by the Sheriff or his deputy or assistant of the sheriff.
There are special rules of service in process on proceedings against the
state. S5 of State Liabilities Act
O5A R43 A – 43D
Substituted service: were service cannot be effected in any ways
stipulated by the rules you can apply for substituted service to a judge of
the HC. It should state the facts on which the cause of action is based,
reason why service cant be effected in any of the ways provided by the
rules; sufficient relevant facts indicating manner in which service will be
effected.
Becker McComick (Pvt) Ltd v Gvt of Kenya 1983 (2) ZLR 72
The City of Hre v Mudzingwa & Ors HH 200/91
City of Harare sought an eviction order for 194 squatters from its land. It
applied for substituted service in the form of an order to allow sufficient
copies to be served on one of the squatters as representative of the
others. Only 24 copies of the process were served on the representative
squatter.
Held: since the identities of 193 other squatters were known to the
applicant 24 copies were inadequate and did not represent a proper
compliance with the order. Equity demanded that each squatter should
have bee furnished with his own copy of the documents.
Service outside jurisdiction: There are two rules – R45 deals with
service in SA, Namibia, Lesotho, Swaziland or Botswana – serviced by
sheriff or deputy sheriff of the country or province in which the defendant
23
P a g e | 24
is residing. If the person serving is a deputy or under sheriff there should
be a certificate from the sheriff that the person was indeed appointed.
In other cases follow R44 that is seeking leave of the court or judge
seeking permission to serve outside the country. The court would order
the manner of service. In an application make the following information:
(i)
(ii)
(iii)
(iv)
facts in which cause of action is based
grounds which the court has jurisdiction in entertaining the claim
proposed manner of service
last known whereabouts of the person to be served. Give details
on what enquiries you have made to ascertain the whereabouts i.e
gazetting.
16/04/04
CONSENT TO JUDGEMENT
•
(a)
R53 the Defendant can consent to judgment at any time after service of
summons except in
in matters affecting status e.g matrimonial matters
•
The consent to judgment has to be in writing and signed by the defendant
personally or by his/her legal practitioner.
•
If the consent is signed by the defendant him/herself then the defendant’s
signature must be verified by affidavit and the affidavit is to be by the person
other than the defendant himself.
It can be verified that the signature of the Legal Practitioner acting for the
defendant.
•
The requirements of R54 are compulsory. If not followed the consent is
invalid.
Washaya v Washaya 1989 (2) ZLR 195. The terms of an apparent
settlement were dictated in open court by the council for the applicant with the
agreement of the respondent’s counsel. Judgement by consent was entered
in terms of apparent settlement. It later turned out that the counsel for the
respondent had no authority to settle the matter. He had simply presumed
that his client would ratify his action.
Held: When the client applied for rescission of the judgement the court held
that the consent was not binding on the client because the provisions of R54
were not followed. The judgement was rescinded and the costs de bonis
24
P a g e | 25
propis were awarded to Legal Practitioner who had consented to judgement
without the client’s authority.
If the consent is filed in a proper form, then judgement by consent will be met
through the chamber application R55. R56 gives the court authority to set
aside a judgment given by consent and its own good and cause shown.
Default Judgment
If the claim is a debt or liquidated demand and there is no appearance to
defend has been entered the plaintiff can make a chamber application for the
judgement R.57.
If the claim is not for a debt or liquidated demand then the procedure if there
is default to appearance, the procedure is set out in R58. The plaintiff must
file and serve her declaration that has not yet been done. If the defendant
remains in default after service of the declaration then the plaintiff may
proceed to make a court application for default judgment by setting the matter
down for hearing in terms of R223(1). The court will then consider the matter
except that where it’s a claim for damages the court will require evidence as
to the quantum of damages. R60. The evidence to be quantumed can be by
way of an affidavit and not oral evidence. The affidavit should be filed within
a specified time limit as follows:(i) if the matter is set down for hearing in Harare then the affidavit must be
filed by 10.00 am on the Friday immediately preceding the Wednesday on
which the case is set down for hearing. Unopposed applications are
heard on Wednesday in Harare.
(ii) if in Byo then the affidavit must be filed by 10.00 am on Wednesday
immediately preceding the Friday on which the case is set down for
hearing.
See Knight NO v Harris (1962 (2) SA 317 (SR). The plaintiff issued
summons against the defendant claiming 6000 pounds for damages
suffered as a result of the negligence of the defendant. The damages
arose from the damage to the plaintiff’s car as a result of a collision of the
defendant’s car. The summons and declaration were served by affixing
copies to the principal door of the defendant’s residence. There was no
appearance to defend by the defendant so the plaintiff set the matter down
for judgement. The plaintiff made evidence regarding the quantum of
damages but gave no evidence in relation to the issue of liability (cause of
action). The question raised was whether it was proper for the court to
grant judgement without hearing any evidence substantiating the cause of
action.
Held: The predecessor to current R60 does not suggest that the court should
dispense with the hearing of evidence on the cause of action. It would
25
P a g e | 26
ordinarily be unwise for a court to do so where the action is for damages
arising out of a motor accident because of the possible existence of
complex issues of whether or not there was contributory negligence.
N.B. The predecessor of R60 stated that the court may dispense with
evidence without specifying what evidence may be dispensed with. The
current R60 states that the court may grant judgment or make an order
without hearing evidence except in cases for damages in which case only
evidence is to quantum of damages (-issues of liability not provided).
Dunlop v West 1974 (2) SA 642
The plaintiff a minor sued assisted by father. Plaintiff was suing a defendant
minor assisted by father for damages of $60 000. The claim arose from
injuries sustained in a car accident. The plaintiff was a passenger in a car
driven by the defendant. The car veered off the road and collided with two
trees. The plaintiff was reduced to a ‘human cabbage’ seriously injured.
The defendant entered appearance to defend and defaulted at trial. The
issue was that the plaintiff led evidence on quantum and sought judgment
without addressing issues of liability.
Held: Under the rules as they were at that time the court had no discretion to
dispense with evidence as to liability (res ipsa loquitor – was it as a result
of negligence). It was held it was not because there was other evidence
on what actually happened. There was a young girl a passenger in the
court who had not been called. It was held that the court must hear
evidence as to liability and the case was postponed to give required
evidence.
In situations where there is default of plea the plaintiff must first of all bar the
defendant due to a procedure called “barring” after giving notice of
intention to bar. Once the defendant has been barred then the procedure
is the same as for R59 – set down.
If the defendant is in default at trial in terms of R59A the court may proceed to
grant default judgment without hearing any evidence at all if it’s a claim not
for damages if its for damages it will hear evidence on issue of quantum
R60. If the plaintiff is in default, the plaintiff’s claim will be dismissed in
terms of R61. In terms of R62 the court may actually absolve the
defendant.
Case Hayes v Bladachin & Ord 1980 ZLR 11
The plaintiff brought an action against the defendant claiming damages for
deformation. The claim arose from a confidential report which the
defendants had prepared. The plaintiff claimed that the report was
malicious and inaccurate. The defendant denied these allegations and
claimed that the report was covered by qualified privilege. Before trial the
26
P a g e | 27
Secretary for Justice issued a certificate directing that the trial be held in
camera. The plaintiff objected to the trial being held in camera and sought
postponement to enable him to appeal to the governor. The matter was
postponed 3 times to enable him to do so but failed to. After the 3 rd
request for postponement was refused the plaintiff withdrew from the
case. The defendant proceeded to lead evidence rebutting the claim.
Held: In light of the evidence led by the defendant, judgment on the merits
should be given for the defendants rather than merely dismissing the claim
in terms of R62 (which is judgment absolution from the instance).
Held: Cot of an attorney client scale should be awarded agaisnt the plaintiff
because his contact contentious to the court and his action had been
vexatious and actually an abuse of the court’s process.
Defendant default at trial.
See: Mpehlani v Expert Panel Beaters & Spray Painters (Pvt) Ltd 1993 (2)
ZLR 212 (SC)
The plaintiff claimed damages from the defendant for negligent repairs to the
car. The defendant entered appearance to defend and filed a plea in
which he denied negligence and defaulted at trial. Counsel for the plaintiff
led evidence on quantum of damages and not on liability despite the trial
judge’s indication that this is necessary as per the case of Dunlop v West
supra). The trial court dismissed the claim and the plaintiff appealed to
the SC. The SC held that negligence was put in issue by the defendant’s
plea and therefore had to be proved. The appeal was dismissed.
Everything said on default judgment does not apply to divorce, judicial
separation, and nullity of marriage and restoration of conjugal rights. If you have
matrimonial claim and there is no appearance to defend – what one does
depends on the type of summons used – either ordinary or special summons.
Where special summons Form 30A are used you simply set the matter and the
matter is to be heard on the date specified in the summons without any reference
to the defendant.
If you use ordinary summons one is required to take the following steps:(i)
file and serve your declaration if you have not already done so.
(ii)
if there is still no response do a notice to plead in terms of R27 2(1)(a).
(iii)
The notice of trial if there is no response to notice to plead. This is the
notice that you are setting the matter down for hearing. The notice will
contain the actual date which the matter is to be heard. The notice must
be served personally on the defendant. Apply for substituted service if
you can’t do so.
27
P a g e | 28
See Le Roux v Le Roux 1957 R& N 831 SR
The plaintiff sued the defendant for a final order of divorce. The defendant was
in default. The plaintiff was unable to effect personal service of the notice of trial
because the defendant moved from place to place. The plaintiff sought to testify
that she had seen the defendant and informed him of the date of set down.
Held: The plaintiff’s evidence could not substitute proper service of the notice of
set down because she was an interested party and she had been informed in a
casual manner. The matter was postponed indefinitely sine die to allow proper
service.
The notice of plead and of trial can be served together in a combined document
called notice to plead or trial.
If you want for proceedings to be quicker the defendant can waive the time limit
required for filing the documents.
Issues relevant either using general and special summons.
(a)
Consent Paper – parties should agree on the ancilliary issues i.e
maintenance, property sharing. The consent paper must be filed together
with the papers for the hearing of the divorce and it will be incorporated
into the court order.
N.B One can’t consent to divorce.
(b)
Service of papers on a person named to have committed adultery. O35
R273 (1), (2)
See Cloete v Cloete 1951 SR 121
The plaintiff sought divorce against the defendant on the grounds of
adultery. The person in whom the defendant was not cited as codefendant but mentioned by name in the declaration.
Held: The declaration and summons should have been served on the
named person to give him an opportunity of appearing for the court and
clearing his name.
See: De Salis v De Salis 1957 R & N 663
The plaintiff sued the defendant for divorce on the grounds of adultery and
cruelty. The defendant entered appearance to defend and counter
claimed for divorce on the grounds of cruelty.
The defendant
subsequently withdrew the defence and counter-claimed. The plaintiff
declaration alleged that the defendant had committed adultery with one H.
Held: The declaration was not served on H therefore plaintiff would not
proceed to have the matter heard. However evidence given of improper
association of plaintiff with 3 men was held to constitute cruelty. Divorce
was therefore granted on the grounds of cruelty.
28
P a g e | 29
The person who is named for adultery can actually waive not have papers
served on her.
See Mayhew v Mayhew (1972) RLR 55.
The plaintiff brought an action for divorce in which he sought condonation
of his own adultery with a named woman. The woman had supplied an
affidavit in which she admitted that she had committed adultery with the
plaintiff and stated that the plaintiff intended to marry her and she waived
her rights to service of the relevant documents. The waiver was accepted.
See Kettle v Kettle 1972 (2) RLR 130
(c)
Uncontested matters
Draft order – type of order you want the court to order. If the court agrees
with it, it grants order in terms of the draft.
(c)
Affidavit of Evidence: R277B allows the plaintiff to give their evidence in
the sum of an affidavit. There is a time limit to file affidavit.
(i)
if matter set down in Harare file at 10.00 am on a Friday
immediately preceding the Wednesday in which the matter is to be
heard.
(ii)
Byo file at 10.00 am on Wednesday immediately preceding Friday
in which the matter is to be heard.
The affidavit must be accompanied by the following documents:
• Marriage certificate
• Consent paper if any.
The court may still insist that he plaintiff give oral evidence and the court
may postpone the matter.
APPEARANCE TO DEFEND
07 R48-49
The form used is form No. 8
The appearance to defend is entered by the defendant personally or through
his/her legal practitioner. The appearance to defend must contain the title
(heading i.e in HC of Zim), no of action (case no); address for service which
should be within the radius of 5km f the court of registry, postal address of the
defendant, date of entry of appearance to defend (Dated at ….); signed by the
L.P or by the defendant himself.
Once the appearance is taken to the registrar, it must be served to the plaintiff
and according to R49. It must be served within 24 hours of entering of
appearance to defend. Failure to enter appearance in terms of R50 be deemed
to be barred (automatically barred). However the automatic bar does not apply
where there is a defective appearance to defend.
29
P a g e | 30
The court decided on the authority of Herbstein & Van Winsen 3rd ed pg 242
and the case cited therein that the irregular appearance to defend did not entitle
the plaintiff to a default judgment. The proper remedy had been to postpone the
matter inorder to allow the defendant to serve the appearance to defend to the
plaintiff . The plaintiff had to pay for these added costs.
Held failure to enter appearance to defend does not result in automatic barring if
there is defective appearance.
R52 deals with withdrawal of the action by the plaintiff after appearance to
defend. According t R52(1) the defendant shall be entitled to his or her taxed
costs and also the undertaking to pay such costs should be incorporated in the
notice of withdrawal. This sub-rule does not apply if the action is being
withdrawn with the defendant’s written consent. Where there is an undertaking
to pay the taxed costs and they are not paid within 12 days of demand by the
defendant, according to R52(2) the defendant may continue to make chamber
application for judgement for the taxed costs.
PLEA ORDER 18
Ordinary Plea
A plea is a defendant’s answer to the plaintiff’s declaration/particulars of claim.
The plea must set out the defendant’s defence and it must deal with the
allegations of facts made in the declaration or summons. The defendant either
admits allegations or deny it or confess and avoid.
A confession and avoidance is when the defendant admits admission by alleging
further facts which justifies the admitted facts or makes him not liable. Where
there is an admission the defendant is bound by that and it cannot be withdrawn
except with the leave and permission of the court. If the defendant seeks
withdrawal of the admission the court will require evidence of the circumstances
in which it came to be made.
DD Transport Transport Pvt Ltd v Abbort 1998 (2) ZLR 92
The general rule is that every allegation of fact not specifically dealt with by the
defendant in his plea is taken to have been admitted together with the implied
allegation of fact which arise from that allegation.
Huntly-Silburn v Levien 1937 TPD 199
Exception in this rule is in a damage claim. In a damages claim it is not
necessary to deny the damages claimed or their amount. According to R117 the
damages shall always be an issue unless expressly admitted.
Where a defendant is raising several grounds of defence which are based on
separate facts then each defence must be separately stated R116(2). The
defendant is not allowed to set out inconsistent defences unless they are in the
30
P a g e | 31
alternatives. If a denial results in the matter taking longer than was necessary
thus incurring extra-costs and the court is of the view tat the fact denied should
have been admitted then the defendant may have to pay extra costs R118.
The plea must be filed within ten (10) days of the service of the plaintiff’s
declarations R119 where the plaintiff serve his declaration together with the
summons on the time is 10 days is given to file plea.
Special Plea
Special plea is a plea that does not raise a defence on the merits but sets out
some special defence. The purpose of the plea is either to delay the
proceedings or to put an end to the proceedings (quashing).
Difference between special plea and an exception with an exception the defence
raised must appear ex facie the declaration or summons or pleadings excepted
to – you may not introduce any matters outside declarations or summons. With a
special plea the defence raised may be established by evidence outside the
declaration the counter-claim.
Two categories of special plea are:
(a)
dilatory – to delay the proceedings until some temporary bar to the claim
has been removed.
(b)
Declinatory – to quash or put an end to the proceedings.
N.B The other name for dilatory plea is plea in abatement.
Declinatory – plea in bar
Declinatory Plea (in bar)
(i)
Plea of res judicata – same matter have been decided in another court of
competent jurisdiction.
(iii)
Prescription – the matter is cut of time – claim can no longer be brought
because lapse of time – Prescription Act 8:07.
N.B There is no prescription under customary law.
General claims
–
3 years
Loans from state
–
6 years
Road Traffic Act
–
2 years to sue insurer
Police Act
8 mnths
(iii)
Lack of jurisdiction.
Read Mvami Pvt Ltd v Standard Finance Ltd 1976 (2) RLR 257
Owen Smith v Owen SmithB 1981 ZLR 514
Flood v Taylor 19978 RLR 230.
Dilatory Plea
31
P a g e | 32
lis alibi pendens – some matter is pending in another court.
No locus standi - person who has instituted proceedings has no capacity
to sue
Read: Edwards v Woodnutt N.O 1968 (4) SA 124
(i)
(ii)
ACTUAL PROCEDURE for filing Pleas
R137 (1)(a) – plea in bar or abatement
R137(2) provides that the plea shall be in the appropriate Form No. 12 and you
file it with the registrar and serve a copy on the other side R138.
Exceptions
Either party can except to the other party’s claim or defence. It its an exception
to the plaintiff’s claim it will be on the basis that the claim does not disclose cause
of action or its so vague and embarrassing so that the defendant does not know
what claim he has to answer. An exception to the plea is that the plea does not
disclose a defence or its so vague and embarassing that the plaintiff does not
know what the defendant’s defence is.
The purpose of excepting is to destroy the cause of action or force an
amendment so that the pleading clearly and properly reflects the cause of action
or defence.
A pleading may fail to disclose the cause of action or defence.
(i)
an essential element of the claim or defence has been omitted. The
question of what is essential element is a matter of substantive law i.e
negligence, vicarious liability.
(ii)
where it raises a cause of action or defence which is unacceptable at law.
Read: Lane v Eagle Holdings (Pvt) ltd SC 126/85
It was an appeal from magistrates court. The plaintiff had claimed payment of
$2000 being the balance of the bonus which defendant agreed to pay the plaintiff
in respect of services rendered as managing director of a subsidiary company of
the defendant. The defendant excepted to the plaintiff’s claim on the basis that
the agreement to pay the bonus contravenes Emergency Powers (Control of
Salary and Wage Increases) Regulations of 1981 and was therefore illegal and
enforceable.
The exception was granted in the magistrates court and the
defendant appealed in the SC.
Held on appeal that it was not apparent from the plaintiff’s summons that the
bonus claimed represented an increase of the plaintiff’s earnings and that the
increase in earning was of such a magnitude as to offend against the regulations.
For that reason the summons was not excepiable and the appeal was allowed
with costs – what excepted must appear on the documents.
32
P a g e | 33
When a plea is vague and embarassing it means that it is such that the plaintiff
or defendant can’t tell by reading it what the cause of action is or defence is.
The vagueness and embarrassment must go to the root of the cause of action.
If the vagueness and embarrassment does not go to the root of the cause of
action or where there is a cause of action or defence is clothed or there is some
vagueness or incompleteness in the manner in which it was set out which results
in embarassment to the other party the remedy is to apply to strike out or to seek
further particulars.
Read: Salzman v Holmes 1914 AD 152
The plaintiff’s declaration contained several allegations that the defendant had
uttered defamatory words of the plaintiff. Para. 7 of the declaration read: “on or
about the 25th of January 1909 at B aforesaid the defendant in the hearing and
presence of and speaking to one Herbert G King of and concerning the plaintiff
and complaining to the said Herbert G King of plaintiff’s conduct towards him
made use of false, malicious, slanderous words; “there pointing a sport on the
band of Kafir river, I was pulled off my horse and was nearly killed (meaning by
plaintiff) and there a native woman was murdered (by plaintiff) and my man
Holstein was told that his grave was already dark for you (by plaintiff) if he
crossed the river”.
The defendant denied para. 7 in his plea but he went on to plead as follows:
“with further reference to para. 7 of the declaration the defendant admits that he
did on or about the time mentioned in the presence and hearing of plaintiff make
use of the said Herbert G King of words more or less as alleged but said that the
said words do not give the whole of the conservation nor its clear and true
meaning.” The defendant continued in h is plea that in speaking as stated the
defendant merely referred to the unpleasant associations connected with the
place and its immediate vicinity in consequence of what had transpired that day
and neither intended nor did infer or impute anything to plaintiff as alleged. The
plaintiff excepted to the part of defendant pleas as uncertain, obscure, vague and
embarrassing. The court a quo was of the view that the plaintiff should have
proceeded by way of applying to strike out that portion of plea and order that it be
struck out. The defendant appealed.
Held: The plaintiff was correct to except because if the offending paragraphs of
the plea were intended as a special defence, they did not comply with the ruels in
that the defendant did not admit, deny or confess and avoid anything. The court
went on to say the words more or less might mean anything and defendant
should have explained unpleasant circumstances referred to in his plea.
Judge of Appeal Innes gave his view of the distinction between exception and
application to strike out:
“The distinction between exception and application to strike out is clear. An
exception goes to the root of the entire claim or defence as a case maybe. The
33
P a g e | 34
expient alleges that the pleading objected to taken as it stand is legally invalid for
its purpose. Whereas individual sections which do not comprise on entire claim
or defence but are only a portion of one must if objected to be attached by a
motion to expinge application to strike out.”
According to Innes C J the offending paragraphs if intended to be part of plea of
denial they were speculous and if meant for special defence were insufficient.
The conclusion was that these either be excepted or struck out.
Appeal was dismissed.
Procedure for excepting
O21 R137 (1)(b)
Form No. 12 is used.
Application to strike out
O21 R137 (1) (c)
R141 what should be struck out is any matter which is argumentative, irrelevant
matter.
Read Green v Latz 1966 RLR 633
Superflous material can be struck out, vague and embarrassing material where it
does not go to the root of the cause of action or defence; inconsistent of
contradicting matter, any matter which tends to prejudice or embarrass the other
party any matter which tends to delay the trial of the action R141(a).
Purpose of applications to strike out is to have the matter struck out so as to
clarify the pleading so that it properly reflects the case which the plaintiff or
defendant has to answer.
Form 12 is used for procedure to apply to strike out.
Read Tekere v Zim Papers (Pvt) Ltd 275 1986 (1) ZLR 275
It’s a defendant’s claim against the plaintiff )18.
The claim in reconvention does not necessarily have to arise out of the same
facts as the plaintiff claim. The rules of the claim in re-convention are the same
as the declaration mutatis mutandis R121(2).
The defendant can also
incorporate allegations of facts contained in the plea or declaration into his claim
in re-convention R122.
Claim in reconvention must be bound together filed together with the defendant’s
plea R121(1). If the plantiff’s action is stayed, discontinued or dismissed the
defendant may still proceed with the claim in reconvention R123. Normally
judgement on the claim in reconvention and on the plaintiff’s claim must be
pronounced at the same time R120(1). The reason is that in terms of facilitating
execution the two judgments can be set off. Where (the judgment) the claims
can be set off the court can incorporate the set off in the judgement R120(2).
34
P a g e | 35
In appropriate circumstances provided good cause shown it would be necessary
for the plaintiff’s claim and the claim in reconvention to be tried separately R124.
This apply when the two claims are totally unrelated. The court could actually
suspend the execution of the first judgment to be granted pending the outcome of
another matter.
See Van der Berg and Partners Ltd v LC Robinson and Co. Ltd 1952 SR 148
REPLICATION O19
A replication is not compulsory. It is where the defendant raised new facts in his
plea. A replication will be required where the defendant’s plea is one of
confession and avoidance. R126.
If it is to be filed must be filed within 12 days of the date of service of the plea
R125. If the plaintiff does not intend to file a replication he can deliver a letter to
the defendant notifying him that he does not wish to file replication and he is
joining issue with the defendant. It should be delivered within 12 days of the
service of the plea R130.
Plaintiff’s plea to the Defendant’s claim in reconvention – The plaintiff follow the
same rules as in defendant claim in reconvention R127.
A defendant’s replication to the plaintiff’s plea to the defendant’s claim in
reconvention. That follows the same rules as the plaintiff’s replication.
REJOINDER
The defendant may choose to file a response to the plaintiff’s replication and it’s
the rejoinder. It should be filed within 12 days of the service if the replication
R129. If the replication raises new facts which have not been raised in previous
pleadings there is need to rejoinder.
CLOSURE OF PLEADINGS O16
O16
Pleadings can be closed prematurely when the party is barred. R107A
Pleadings are also closed if either of the party joined issues and which any
pleading of the opposite party without adding any further or special pleading to it.
A defendant can also join issue after receiving the plaintiff’s replication because
we may not wish to file a rejoinder. Pleadings can also be closed if there is a
written agreement signed by the LPs of both parties indicating that the pleadingsl
should be considered as closed. The agreement will be filed with the registrar
R107(c).
35
P a g e | 36
N.B If none of the circumstances apply and the parties consider that the
pleadings be disclosed then the parties should make chamber application for an
order declaring that the pleadings have been closed R108. The judge will make
an order as the deem fit.
Significance of Closure of Pleadings
Parties cannot proceed to the discovery of documents without of pleadings R160.
In special circumstances you have leave of the judge to proceed discovery of
documents without of documents R160.
The parties cannot proceed to pre-trial conference before closure of pleadings
R182. The parties can’t proceed to set the matter down for trial without closure
R214.
In terms of the law closure of pleadings means that the claim can now be
transmitted to the heir of the plaintiff in the event that the plaintiff dies after the
closure of pleadings and provided that the claim is not personal to the plaintiff i.e
claim for divorce. The parties rights are regarded as frozen (litis contestatio).
See Jankowiak & Anor v Parity Insurance Co. 1963 (2) SA 286
The plaintiffs were husband and wife and had been injured in a collision between
a motor vehicle driven by the wife by the one driven by Forest. They instituted
proceedings against Forest’s insurer. The parties joined issue on the 2 nd of June
1962. The husband died on the 4th of June 1962. The wife was the executrix of
the husband’s estate. She applied to be substituted for the husband in relation to
the husband’s claim. The defendant agreed to the substitution in relation to
specific damages i.e medical expenses, hospital expenses and loss of earnings
and not in relation to general damages which were for pain and suffering
because claim was personal to the deceased and therefore not transmissible to
the estate. The parties brought the issue to court for determination.
Held: The claim for general damages was transmittable to the estate of the
deceased. It stated that closure of pleadings results in litis contestatio which is
freezing of the parties rights.
DISCOVERY OF DOCUMENTS – O24
O24 R160 – discovery is initiated by a notice to make discovery which is a written
notice requiring party to make discovery of all documents relating to any matter in
question or in issue which happen to be in his possession or is still in his
possession or control. The notice can be served by either party and the time
limits for responding is 24 days excluding public holidays and weekends.
N.B The purpose of discovery is to prevent what is called trial by ambush –
springing a surprise on the other party. The procedure for making discovery is
36
P a g e | 37
that deliver an affidavit in form No. 18 and attach a schedule of documents and
that schedule will be divided into two parts. The first part will contain documents
which you object to produce (if it contains privilege information i.e communication
between lawyer and client, covering state privilege, statements by witnesses –
for the purpose of litigation existing or contemplated – discovery must be made
with the bona fide intention to the LP inorder to obtain advice or institute
proceedings (legal professional privilege).
Kerwin v Jones 1957 R & N 432, 1957 (3) SA 181
Boyce v Ocean Accident and Guarantee Co-operation Ltd 1966 (1) SA 544
Association of Rhodesian Industries & Ors vs Brookes and Or 1972 (2) SA
687 (state privileges)
(see Part 2 notes).
Once a party attach discovery of documents and the other party think the
discovery is incomplete he can make a note of further discovery R162. If the
party assist that they do not have the documents they have to state on oath on
the affidavit, Where the claim of privilege exist it can be challenged in terms of
R177. The court of the judge can actually inspect the documents.
Once the documents are disclosed and not privileged give a notice to allow to
inspect the documents using Form 19. The notice basically calls upon a party
who makes a notice to deliver a response within 5 days by way of a notice in
Form No. 20 specifying the following:(i)
the place where the documents may be inspected.
For parties
represented by LP the usual place is LP’s office.
(ii)
the period during which the documents may be inspected. Each period
should not be less than 5 days and should be on not later than 3 days
from the date of delivery of the notice.
In the case of bankers books or books of accounts on constant use for the
purpose of any business in case of inspection the place is their usual place of
custody.
R164(1(a) was inserted by SI 80/00 – Form No. 20 specifying the place where
documents will be inspected.
R164(2) – place in LP’s office or usual place of custody of books of accounts.
•
•
•
Where one receives Form No. 20 inspect the documents during normal hours
between the period specified R164 (3).
If a party fails to produce a document for inspection when required to do so,
he will not be allowed to use it at the trial unless the court orders otherwise on
good cause shown R164 (4).
If a party fails to make discovery to make inspection, you make a chamber
application for an order to make compliance with the notice to inspect R165
(1).
37
P a g e | 38
•
If a party is ordered to make discovery in terms of R165(1) and still do not
comply with the order, then the party in whose favour the order was made can
make a chamber application for the dismissal of the party’s claim or striking
out of the defence if it’s the defendant who is failing to comply with the order.
The judge dismissing the claim or strike out defence may proceed to give
default judgment against the defendant. If it’s a claim for damages then the
court will lead evidence as to quantum either by affidavit or oral (R165(2).
•
A party who requires another to produce a document at the trial can give
them a notice in terms of Form. No. 21 R166(1). The notice must be given at
least three days before the hearing. However the court may allow the notice
to be given during the course of the hearing R166(2). The court may also
order the production by any party of any documents in his power or control
relating to the matter in question and the order is made during the course of
the proceedings R167. R168 deals with failure to produce the documents at
the hearing of the proceedings or has been ordered to produce that the
hearing by the court and fails to do so – the court may dismiss the claim or
struck out the defence of the defendant and gives default judgment. This is
subject of whether there has been evidence either orally or affidavit to
quantum the amount if its for damages.
•
Where a party in a pleading or affidavit filed during the course of proceedings
makes reference to any document the other party may require him or her to
produce such documents within 10 days and also to permit him to take a copy
thereof. R169(1) as amended by SI80/00. The notice is in form No. 22.
A party who fails to comply with the notice Form No. 22 then he will not be
allowed to use that document in the action of proceedings except with the
leave of the court but any other party may use the document R169(2).
Make a chamber application to compel production of the document R169(3).
If the party is ordered to produce the document for inspection and making of
copies and they require to comply with the order then they can be a chamber
application to dismiss the claim or strike out defence followed by default
judgment. R169(4) and evidence as to quantum of damages orally or by
affidavit.
R171 service of an order or notice to make discovery on the LP shall be
sufficient notice unless the party against whom the order was made shows
that he had no knowledge or notice of the order in R171.
It is an offence for a LP to fail to give notice to make discovery to the client
and is liable to attachment R172.
PRE-TRIAL CONFERENCE (026) (Curtailment of Proceedings)
38
P a g e | 39
The purpose of the Pre-Trial conference is to attempt to settle the matter out
of court and if that fails to reach an agreement on many issues as possible to
curtail the trial; to define the real issues in dispute so that the parties and the
court are clear.
R182 – there are three ways in which the PTC can be convened
(i) by agreement between the parties where they hold the PTC themselves at
mutually convenient time and place Rule 182 (1)
(ii)
where the parties by consent agree that the PTC be held before a
judge in chambers. The date and time is fixed by the registrar in
consultation with the parties R182 (3).
(iii)
Can be convened in terms of the rules if the judge instructs the
registrar to convene a pre-trial conference before a judge in chambers
at a time specified in the notice of the registrar and the rule require the
registrar to give reasonable notice R182(4). This can be actually done
at any time during the proceedings regardless of whether the parties
had done the pre-trial conference themselves. However if the notice is
given before the parties convene the PTC it shall not be necessary for
them to do so R182(5).
•
However be aware that for matters that are before the HC in Harare there is a
special practice Note 1 of 1995.
•
Some of the issues are in R182(2) which can be discussed at PTC i.e
obtaining of admission of facts and documents; the parties can also discuss
the holding of any inspection or an examination, the exchange of the experts
reports, giving of further particulars for the purpose of trial and can agree on a
deadline as to when these should be furnished; discuss the issue of whether
there are any plans, diagrams, photographs at the trial and if so who is going
to put them together, discuss consolidation of trial – applies where the
defendant is sued by many plaintiffs, can also discuss the issue of quantum of
damages if the defendant is denying negligence, estimation of the probable
duration of the trial, no of witnesses to be called, the complexity of the facts,
discuss issue of preparation of correspondence and the documents which are
to be used at trial in one bundle and pagenate them, defining of the real
issued to be decided at the trial. The issue of an interpreter can also be
discussed.
If the parties held the PTC themselves then at the conclusion of the PTC they
must draw up the minute of the PTC which should summarised the issues
discussed and to be signed by the parties or their LP R182 (7).
If it is held before a judge then the judge would do the following;(i)
record the decision taken at the PTC and any agreements reached by the
parties;
39
P a g e | 40
(ii)
(iii)
he may make an order limiting the issue for trial to those not deposed of
by admission or denial.
He must record the refusal of any party to make an admission or reach an
agreement and the reasons thereof. If it turns out that the reasons were
unreasonable then the party will be awarded costs R182 (10).
If the parties can not agree on any issue in R182(2), any of the parties may make
a chamber application to a judge for a direction in regards to a matter in dispute
R182(8). If the parties manage to reach a settlement on any of the matters in
dispute then a judge may make an order embodying the terms of settlement that
is an application by the parties (chamber) R182 (9).
If the parties cannot agree on how to hold a PTC or if they agree to hold
themselves but do not agree on the date can make a chamber application for
direction on how to proceed R182(6).
If the party fails to comply with the direction given by a judge in relation to the
holding of a PTC or with a notice served by the registrar from a judge to convene
PTC as per Rue 182(4) then a judge may dismiss the parties claim or strike out
the defence. It can be done either on oral application or chamber application
R182(11).
R183 allow a judge to consult parties in chamber for discussion.
R184 says that a court giving judgement that the trial of the action must take into
consideration the provisions of R182 in relation to making of an order as to costs.
If the court is of the view that party has been unreasonable in making an
admission or reaching an agreement then the court may order such a party to
pay additional cots for such refusal even if they are the successful party in the
action (R184).
Special Procedure for Hre: NI March 1995
All PTCs in Harare are held before a judge in chambers. However the parties
can request a judge to allow them to hold the PTC themselves if they believe that
PTC before a judge would not serve any useful purposes because the legal or
factual issues are very complex or because the prospects of settlement or
agreement are very remote. Reasons should be given for their belief.
The procedure is to file a notice (once in position to hold a PTC) to attend the
PTC with the registrar and in that notice leave the date and the time blank. The
notice is accompanied by a concise summary of the evidence led at the trial
including a list of their evidence. The notice should also be accompanied by a
draft PTC minute listing the issues what you perceive to be determined by court,
admission, estimation of duration of trial and other issues in R182. The Registrar
will inset the date and the time in the PTC. Take the notice to the other party and
40
P a g e | 41
serve it on them together with the copies of summary of evidence and draft PTC
minutes. Then file proof of service with the registrar.
The party who receive the notice for the PTC and accompanying documents
should also file their summary of evidence at least 5 days before the date of the
PTC. If they dispute the draft PTC minute or wish to add anything further then
they must file their own draft PTC. The date set for the PTC, a party should
attend either in person or by a rep familiar with the facts and duly authorised to
make decisions on behalf of the party together with the LP. A LP can apply for
their client to be excused from attending the PTC in person for good cause
shown. Its only granted in special circumstances.
At the PTC the judge will actively seek to call the strengths and weaknesses of
active parties and to reach an agreement on the matter referred to in R182(2).
The judge’s intention will either be to reduce the issues between the parties and
assist the parties to settle the matter out of court.
The judge who preside at the PTC will not preside at the trial (bias).
If a party is a self actor serve the relevant notices on them by registered post at
the address of service and provide proof of posting as proof of service. If the
party is a self actor the judge may condon their failure to provide a summary of
evidence or draft PTC minutes. The nature of the case will be ascertained at the
PTC.
A judge may postpone the PTC to a later date if he is of the view that there are
some issues to be clarified and such clarification will lead to the resolving of the
matter or narrow the issues. The PTC will still be before the same judge and
another judge.
At the end of the PTC the judge will draw up the minutes. It is set down for 45
mins on Thursdays and Fridays.
SET DOWN
Note 1/95 – trial dates can be allocated at PTC – in terms of the rules of court is
open to any day that is not a Sunday or public holiday R281 at the working hours
are 8 – 1 pm and 2 – 4 pm on each business day. For the court there are what
are known as vacation days and are published by the calendar which fixes which
days are vacations and which are not. A contested matter can’t be set down
during a vacation unless its extremely urgent.
After PTC request the registrar to prepare cause list in Form 26A. Form 26A
require the following: the number of days required for trial, who are the plaintiff’s
LP, would LP be actually be representing the plaintiff and is it the same for the
defendant. Confirm for any discoveries. As soon as dates are available the
41
P a g e | 42
registrar will allocate dates for trial in terms of R215. The date can be changed
on good cause shown but the parties should be consulted. The parties can
change the date but have to apply to a judge.
If the parties are represented the notice is served to the LP and if not by
registered post to the address of service or last known address. As a matter of
constitutional law the matter should be held within reasonable time.
If the parties are represented the notice is served to the LP and if not by
registered post to the address of service or last known address. As a matter of
constitutional law the matter should be held within reasonable time.
Pickering v Zim Newspapers 1991 (1) ZLR 71. The applicant issued summons
for defamation on the 25th of January 1990. Pleadings were closed on 9 th of
August 1990, the HC was held and there was application for set down. The
applicant sought an urgent set down of the matter because the defendant was
continuing to publish defamatory allegations against him and this had a
detrimental effect not only on him and family but also in public confidence in the
banking sector. He applied in terms of S18(9) of the Constitution. He also said
that the defendant would suffer no prejudice if the matter was heard as a matter
of urgency. He said the matter was unlikely to be held in 1993 if the normal
proceedings were followed. The respondent applied for cancellation of the
application alleging that the lack of facilities for the hearing of civil trials could not
defeat the applicant’s constitutional right, submitted that matters that that of the
applicant should be set down within 1 years of the commencement of the
proceedings and within 6 months after application and any delay beyond that
time is unreasonable.
The application cannot be equated to a any ordinary commercial claim and the
applicant was entitled to vindicate his name as soon as possible in response to
the application he suggested the matter be heard on the 29 th of October 1990
and be heard at any time between the 12th and the 16th of November but those
days had not been taken by the applicant.
Held: The applicant had not established that the trial could not be heard before
1993. The applicant had not established that the trial in 1993 would infringe
S18(9) of the Constitution given to the fact that allowance must be given to
institutional shortcomings. The applicant was in no worse position than other
litigants and special preference for his matter would violate the constitutional
rights of the other litigants.
The application was dismissed with costs.
TRIAL - O49
42
P a g e | 43
Trial is open to the public S49 of the High Court Act. Proceedings are in English
but court can choose the trial to be held in camera.
Hayes case
The duty to begin depends on who has the burden of proof. It its on the plaintiff,
the plaintiff adduces evidence first R437 (1). If on the pleading the burden is on
the defendant then defendant adduces evidence first R437 (2). Where the
burden or proof is on the plaintiff on same issues and on the defendant on others
then the plaintiff will adduce evidence first on those issues on which the burden
of proof is on him. The plaintiff will then adduce evidence on all issues. The
plaintiff will then adduce evidence on those issues not previously addressed or
dealt with R437(3),(4).
If there is doubt or dispute as to who has the burden of proof then the court has
the discretion to determine which party shall begin.
The opening address (plaintiff)
By the plaintiff R438(2). The purpose is to give a summary of the facts which are
going to be proved by evidence. At this stage there are no arguments.
Presentation of Evidence
• Witness or other parties themselves should be outside the court until their
time to give evidence has come
• Guard against inadmissible evidence.
• The court in a civil trial cannot call a party to give evidence without the
consent of the parties. However the court can recall a party who has testified
to clarify certain aspects of the case. Parties can also recall witnesses and if
the other party objects make an application to recall and its done when the
parties has closed the case so that you reopen R437(5).
See Haldhla v President Insurance Co. 1965 (1) SA 614
The court can initiate an inspection in loco.
See Hebstein: Civil Procedure 3rd ed 556.
If examining own witness do not ask leading question. These questions suggest
answer.
• Examination in Chief
No leading questions.
• X-examination by the defendant
• Re-examination
At the conclusion of the plaintiff’s case they close their case and the defendant
can actually apply for absolution from the instance. This is where the defendant
argues that case presented by the plaintiff is insufficient to put him to his defence
(no prima case). If there is no such application the next stage is the opening of
defendant’s address R438(3). The defendant will also call his witnesses who will
go through the same processes set out in the plaintiff’s case.
43
P a g e | 44
N.B X-examination is not compulsory – don’t do it
challenge.
if there is no issue to
After the defendant present his case he will close his case and the applicant will
do this closing address. The closing address starts with the plaintiff followed by
the defendant and finally the plaintiff will reply to what the defendant has said. If
in the reply the plaintiff cites new cases the defendant may be allowed to respond
to such. The closing address must be oral.
See. Transvaal Industrial Foods Ltd v V.B.M.M. Process Pvt Ltd 1973 (1) SA
627. This was an appeal from TPD. The main argument for counsel of the
appellant was the submission that the trial judge had committed a serious
prejudicial irregularity in that he had directed counsel to submit their closing
arguments in writing he had also proceeded to decide the matter without
considering the written arguments.
Held: Generally arguments for the litigants in a trial should be delivered orally in
open court and not in writing to the judge in his chambers. Oral argument is far
more effective than written substitute. Consequently neither the court nor the
litigants should normally be deprived of the benefit of oral arguments in which
counsel can fully indulge their forensic ability and pursuasive skill in the interest
of justice and their clients. A trial court should therefore not direct that the
arguments be delivered in writing except in special circumstance and only after
discussion with counsel. P628.
Conclusion is that the court a quo had committed a serious irregularity in
denying the litigants an opportunity to address the court. The court then
considered to deal with the matter on the merits and dismissed the appeal with
costs.
5 May 2004
Postponement (Adjournment of Trial Proceedings R445)
Adjournment can be at the instance of the court. The first thing to do is to
approach the other side and ask for consent to postponement but if they do not
consent make an application to the court for postponement. The court will take
the following into consideration;
Madzimbamuto v LandnerBurke NO & Ano. 1 1966 RLR 228
The applicant applied on notice of motion for an order of habeaus corpus in
respect of her husband who was in detention in Gwelo prison. In her notice of
motion served on the respondent on the 24th of February 1966 the applicant
called upon the respondent to file her opposing affidavit by the 4th of March 1956.
The affidavits were not filed and still not filed at the time of hearing 14 th march
44
P a g e | 45
1956. The solicitor general who was appearing on behalf of the respondents
sought postponement of matter for further investigations of legal issues and filing
of affidavits. Counsel was sent overseas to research on many of the books not
available in local libraries. The applicant opposed application for postponement
and as an alternative sought to have an order to compel the respondents to file
their affidavits on a specified date. He also gave the court an indication of the
proposed nature of contents of such affidavits.
Held: the rule do not provide for an order to disclose the contents of the
respondents affidavit.
Held: Although the granting of a postponement is an indulgence of the court, it is
normal to grant a postponement provided that the application for a postponement
is bona fide and the party applying for such postponment is prepared to pay the
wasted costs and there is no substantial prejudice to the other party, pg. 231.
Conclusion: issues were sufficiently complex and prima facie case to allow the
postponement to allow filing by affidavit.
Issue of prejudice by postponement, the court noted that the respondents were
prepared to release the applicant’s husband from prison without admitting the
unlawfulness of the detention. However the husband would still be restricted to
the area of …..
Held: The matter was to be postponed and the respondent ordered to pay
wasted costs and to file their affidavits by 28 April 2006.
Leapman & Anor v Barrow 1971 (1) RLR 40 GD
On the day of the trial of the action, the defendant applied from the bar for a
postponement sine die (without specifying a date). Two grounds of postponment
were given:
(i)
(ii)
it was alleged that the plaintiff had filed his discovery affidavit late
the plaintiff was also alleged to have filed his plea to the defendant’s claim
in reconvention late.
The plaintiff’s discovery affidavit was filed on 16 August 1971. The trial was set
down for hearing on 18 August 1971. The plaintiff’s discovery affidavit disclosed
42 documents of which almost 10 of them were not in the defendant’s discovery
affidavit. In addition there was an indication that the plaintiff had not made full
discovery.
Held: The defendant was prejudiced by the late discovery because he denied
him an opportunity to inspect and take copies if necessary of the disclosed
documents and also to prepare evidence in response to the documents.
Therefore the postponement was granted.
45
P a g e | 46
A similar situation would not arise at the present rules because discovery must
be completed before trial dates are allocated.
Cunningham v Cunningham 1958 R & N 655
The applicant who was the respondent’s ex-wife brought an application for the
increase of he amount of maintenance payable to her by the respondent under
an existing court order through an administrative which is the office of the
applicant’s attorney the fact that the applicant’s opposing affidavit had been filed
escaped everybody’s notice until a day or two before the hearing. Applicant’s
counsel sought postponement of matter to enable investigation of the
respondents opposing affidavit to see whether it might be possible to adduce
evidence which would show the facts in the respondent’s affidavit to be wrong.
Two contentious issues was whether or not the respondent was in areas (ii) the
financial circumstances of the respondents.
Held: The issue of whether or not respondent in areas had no bearing on the
application. On issue of respondent’s means it was said that it was a matter
perculiary within the respondent’s knowledge and it was difficult to see how the
applicant would produce contradictory evidence. The court also noted that the
matter could not be postponed subject to the conditions that the applicant pays
the wasted costs because the applicant was appearing i.f.p (in forma pauperis)
the court also said that there was no indication that there was important evidence
which the applicant sought to give. The court was of the view that the applicant
was on a fishing expedition.
Conclusion
It would be an injustice to the respondent to postpone the matter.
application for postponement was refused.
The
JUDGMENT
There are basically two types of judgment for plaintiff or defendant or it can be
absolution from the instance.
Absolution from the instance.
It can be granted in two different circumstances
(i)
under R437(1) – it can be granted at the close of the plaintiff’s case were
the defendant applies for it.
(ii)
it can be granted at the conclusion of the trial and the court is of the view
that the evidence presented does not justify giving judgment in favour or
either party. The plaintiff not succeeded in establishing his fact neither
has the defendant succeeded in his defence.
46
P a g e | 47
Supreme Service Station(1969) Pvt Ltd v Fox and Goodridge 1971 (1)
RLR 1
The appellant who was the applicant sued the responded in the magistrates court
for the costs of work and labour done and materials supplied in repairing a motorcar. At the close of the plaintiff’s case which defendant successfully applied for
absolution from instance. The plaintiff appealed against the decision. It was
common cause that the car did not belong to the defendant’s company but to Fox
personally. Fox had signed a form applying for credit in which he bound the
company as co-principal debtor. The account remained unpaid for several
months and the managing director of the plaintiff thought it desirable to obtain the
signature of Goodridge who was Fox’s director and then applied for credit.
Goldridge refused to sign the form alleging that Fox had no authority to sign the
form alleging that Fox had no authority to bind the credit of the company and also
that the care was Fox’s personal car. Invoices for the work performed were put
in as exhibits at the trial and customer’s name was given as Fox and Goodridge
(Pvt) Ltd. In deciding the application for absolution from the instance to
magistrate came to the conclusion that no reasonable court could give judgement
for the plaintiff and that is why he granted absolution from the instance.
On Appeal
Held: The magistrate erred in failing to distinguish application for absolution
from instance at the close of the plaintiff’s case and application for absolution at
the conclusion of the trial. The test given by the court:
(i)
where the is an application for absolution at the end of plaintiff’s case the
rest to be adopted in deciding to grant on granting absolution is whether or
not a reasonable court might grant judgment for the plaintiff. The court
may take into account that a reasonable court might make a reasonable
mistake of fact. The court must also take into account that the defendant
had not given evidence to refute the plaintiff’s evidence and if the defence
is something perculiarly within the knowledge of the defendant and the
plaintiff has made out some case to answer the defendant must not be
allowed to cause an injustice by seeking absolution from the instance. In
other words the plaintiff must not be lightly deprived of his remedy without
first hearing the defendant.
(ii)
Absolution from instance at end of trial” the test is whether the court could
or ought to grant judgement in favour of the plaintiff.
Conclusion
There were facts indicating that Fox had authority to bind the defendant’s
company the facts which a reasonable court might grant judgment for the
plaintiff. The appeal was allowed for that reason.
If a party does not show up for trial the court will grant default judgment.
47
P a g e | 48
CORRECTION AND ALTERATION OF JUDGMENT R449
Banda v Pitnuk HH 164/93, 1993 (2) ZLR 66
Applicant sought rescission of a default judgment which was opposed by the
respondent. The applicant filed an answering affidavit to the respondent
opposing affidavit on the afternoon preceding the date which the matter was to
be hear. The respondent’s Legal Practitioner objected to the late filing of the
affidavit. The respondent subsequently withdrew the opposition for the late
submission to the late filing and the explanation for the delay was that the
applicant’s Legal Practitioner had renounced agency on the 7 th of July 1993
when the matter was to be heard on 14th July 1993 thus giving him sufficient time
to prepare himself to conduct the case on his own. The court strongly censored
the conduct of the LP and the mater resume the former LP came back. On the
resumed hearing mero motu (own initiative) raised an issue on whether the
application should have been made under R449(1) instead of R63 which is the
rule on rescission of default judgment. The reason for the subjection is that there
was an appearance to defend by the applicant which had been duly signed by
the registrar but had not been duly served by the plaintiff.
BARRING 012
When does a party becomes barred? - O7 R150
•
•
If a defendant fails to enter appearance to defend is automatically barred.
O12 R80 – this is where a party has failed to file his declaration, plea, request
for further particulars, replication or other response to plea. The bar is not
automatic but give a notice of intention to bar Form NO. 9. In the notice you
call upon the party to file their pleadings or other response within 5 days of
the date of service of the notice failing which they will be barred. This applied
even when they want to accept.
See City of Harare v Minister of Local Government Rural and Urban
Development v V & P Investment (Pvt) Ltd & Deputy William Aitken SC
195/92.
On the 6th of February 1990 the defendant were served with a request for further
particulars to be plaintiff’s declaration. The particulars were provided on the 12
March 1990, on 3 April 1990 and 10 May 1990 respectively. The defendants
filed identical exceptions to the plaintiff’s declaration. The first defendant’s
exception was set down for hearing on 23 June 1990. The second exception
was not set down for hearing because the determination of the first defendant’s
exception would dispose of the matter. The issue was then raised at the hearing
that the exception was filed out of time and it was the response form counsel that
an exception is not a pleading under the rules and was not subject to the
procedure for barring. The matter was taken on appeal and the appeal court said
an exception is a pleading and subject to the barring procedure.
48
P a g e | 49
•
Once a party receives a notice of intention to bar he should respond by filing
the required pleadings. If they do not respond then proceed to bar them by
filing a copy of notice of intention to bar with the registrar and the copy will be
endorsed as required by form No. 9.
•
The effect of the bar – R83 gives the effect when a party is barred the
registrar wold not accept for filing any pleading or other document from that
party. That party shall not be permitted to appear personally or by a legal
practitioner within the subsequent proceedings in the action or suit. The only
exception is when they file pleadings for purposes of applying for the removal
of the bar.
Removal of the Bar
It can be done by consent. Form No. 10 is used to file a notice of removal of bar.
If the other party refuses to consent make an application for removal of bar R84.
The application can be made either as a chamber application or as an oral
application at the hearing of the action or suit involved (R84).
See Standard Bank of SA Ltd v Kircos 1957 R & N 144.
The application for the removal of a bar for failure to file a plea timeously was
supported by an affidavit by the applicant’s attorney. Much of the affidavit was
mere opinion on the merits of the applicant’s case. It was held that in the
absence of special circumstances, it is the client himself who should make the
affidavit because it is he or she who knows the facts upon which the case is
founded. When the time came it will be for him or applicant to establish her
claim. Postponement will be granted to allow the applicant to file a proper
affidavit.
What is it that the applicant must establish to succeed in having bar removed?
See Petras v Petra SC 71/91
The plaintiff brought an action for divorce against the defendant. The defendant
entered appearance to defend but failed to file his plea and counter-claim
timeously. The defendant was barred. The defendant applied for removal of the
bar (uplifting of the bar). The application was dismissed by the High Court on the
ground that there was no reasonable explanation of the failure to file the plea
timeously and the proposed defence had no merits. The defendant appealed to
the SC.
Held: An application for removal of the bar must satisfy the following
requirements:
(i)
the applicant must give good reasons for the default;
49
P a g e | 50
(ii)
the applicant must set out facts on which he relies on for the defence so
that the court can form an opinion from the merits and bona fide of the
defence.
The SC concluded that the applicant’s default was intentional or at least reckless.
The defence had no merits. The appeal was dismissed with costs.
N.B Prior to 2000 it was only a defendant who could be barred but now both
can be barred.
7/05/04
FURTHER PARTICULARS – O21 R137(1)(d)
Further particulars can be requested for two different reasons:
1.
2.
3.
to enable the party requesting particulars to plead;
particulars can be requested for the purpose of preparing for trial.
It can be requested by either party.
For the purposes of pleading
What is the degree of particularity?
Citizen Pvt Ltd v Art Printing Work 1957 (3) SA 383
There was no application for an order compelling the plaintiff to supply further
and better particulars. These are requested when the party is unsatisfied with
the particulars. The plaintiff’s claim was for printing work done and paper
stationery and printer supplies sold to the defendant. Details of each invoice for
the amount charged were annexed to the declaration. The defendant requested
further particulars and was supplied with particulars which were denied. The
particulars sought were detailed information on how the plaintiff have arrived at
its charges. For example on 42% to cover overheads and the defendant wanted
to know the following in respect of its charge:
(i)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
wanted to know how much was allowed for the cost of
salaries, description and number of employees
other office expenses stating what they are]
how much was allowed for advertising stating how much and what
proportions of the total advertisement expenses is desired for printing
overheads.
How much was allowed for depreciation other than depreciation of
printing machine and state what is meant by depreciation and how it is
calculated.
What was meant by overhead rent and how it differed from other rent
The defendant wanted to know the details of the interest claimed
Details of the bank charges.
50
P a g e | 51
Held: “It should be remembered that it is a fundamental principle of all pleadings
that the statement of material facts should be in summary form. Even where the
pleading is not defective by reason of the omission of any material fact the court
will order particulars if it considers that as a matter of fairness they should be
given. The procedure however was not designed to enable one party to ferry out
inquisitorial forays upon his adversary; nor should it be regarded as a challenge
to the suttle and overcurious … I have studied the present request, its
complexities and magnitude will not fail to impress the most reasonable litigant. I
am satisfied that the applicant should not as a matter of fairness be given the
information for which he asks.” P386.
Application was dismissed with costs.
Time Security Pvt Ltd v Castle Hotel Pvt Ltd 1972 (3) SA 112
The plaintiff sued the defendant in the magistrates court for payment of $85,63
being an amount allegedly due by the defendant to the plaintiff for services
rendered. The services were, providing a security guard for the defendant’s
premises. The defendant pleaded to the summons as follows: the defendant
states that it was quire entitled to terminate the contract because the security
guard supplied was not carrying out his duties properly and not providing real
security at all. The plaintiff requested further particulars to the defendant’s plea
(a)
the plaintiff wanted full details of the alleged failure by the security guard
to carry out his duties properly;
(b)
the plaintiff wanted details of what was meant by the allegation that the
security guard was not providing any real security.
The defendant refused to furnish the particulars on the ground that they were not
necessary to enable the plaintiff to plead. The plaintiff applied to the magistrate
court for an order compelling the defendant to supply them. The application was
dismissed and he appealed to Appellate Division. The SC started to define what
is meant by ability to plead or prepare for trial.
Held: Ability to plead or prepare for trial means the ability properly to plead or
prepare for trial. A litigant is not to be put in the position either of pleading in the
dark or preparing for trial in the dark. No hard and fast rule can be laid down
regarding the particularity required. Each case must be judged on its own merits.
Held: On the issue of purposes of pleading “a litigant must not be put in the
embarrassing position of being forced to resort to bare denial by the lack of
particularity. A denial which in the light of the particulars supplied at a later stage
he might well be obliged to withdraw or qualify. He should be in the position
honestly to deal with the matter and either to admit or deny an allegation in the
light of particulars furnished” pg. 114.
Held: Plaintiff was entitled to the particulars sought because the plaintiff being a
company could not be expected to supervise all its employees. It was incumbent
51
P a g e | 52
upon the defendant to inform the plaintiff of any failure to perform his duties by
the security guard. The plaintiff also needed to know in what ways the guard was
not performing his duties e.g did he not report on duty at all or did he report for
duty and then fail to perform the duties.
Appeal was allowed with costs.
Procedure (Form No.12) R137 (2)
Once there is a request for further particulars one must respond within the time
limit and thereafter the time for filing the next pleadings will be calculated
according to R142(a) whether the particulars are supplied voluntarily or an order
to supply file within 12 days form the day of compel of supply.
If the party refuse to comply the defendant should file their plea within 12 days of
date of refusal R142 (b).
If there is refusal and an application is made to compel the time is calculated
from the date the court refused to grant rant the application R142(c).
Request for further and better particulars if the particulars supplied are
insufficient (Citizen (Pvt) Ltd) R141(b) gives the court power to furnish further
particulars.
R143 – further particulars for the purpose of trial. Form No. 13 is used.
OFFERS AND TENDERS IN SETTLEMENT – 022
Basically in terms of R144 a party to proceedings may make a written offer to
settle either in whole or in part at any time within the course of the proceedings
R144(1) . The offer can be made without prejudice – without admitting liability
R144(3).
R144(4) specifies the content of the offer. The offer must be signed by the
person making it or by his or her legal practitioner. The offer must also set out all
the terms and conditions on which it is given. The offer must also indicate that it
is made in terms of R144.
Once a written offer is made you must given notice of the offer to the party whom
you are giving the offer. R146(1) – the notice must state whether the offer is
being made without prejudice and it must also state whether the offer is being
made in respect of both the claim and costs or being made in respect of the claim
only. Also state whether the offer is accompanied by an offer to pay all or part of
the costs and therefore any conditions subject to which the costs will be paid.
The same rule also apply in the case of a tender.
A tender is a tender in performance of a specific act R145 (1). The performance
can either be in whole or in part R145(1). R145 (3) you can also make it without
52
P a g e | 53
prejudice. The details required are the same as in the offer i.e signed by the
parties, LP R145(4).
Once an offer or tender has been made the person to whom it is made has a
period of 15 days to accept it or reject. If accepting they do so by filing a written
notice with the Registrar indicating that they are accepting R146(1) and must be
served on the person made the offer or tender and proof of service must be filed
with the Registrar R147 (3). Once the 15 day period has expired the tender or
offer can no longer be accepted unless the offeror or person who makes tender
gives consent or the court on application orders that it may be accepted R147(2).
Where the offer or tender does not include costs the person who accepts the
offer or tender may make a court application to pursue the costs R147(5).
If there is an offer or tender made without prejudice the fact should not be
disclosed to the court before judgement R149(a) Par (b) required the Registrar to
remove any references to the offer or tender from the file. After judgement the
fact can be disclosed. The fact is considered for the purposes of costs. If the
plaintiff unreasonably rejected the tender or offer in settlement even if they
succeed they will be penalised in costs. If don’t succeed they can be penalised
on paying the costs on a higher scale R150(1).
R150(2) allows the court to reconsider the question of costs if it had made a
decision on the issue without being aware that there was an offer or tender in
settlement. This reconsideration is made on application by any party to the
proceedings within 5 days of the decision on the issue of costs.
SUMMARY JUDGMENT
It’s a procedure which allows the plaintiff who feels that the defendant has
entered appearance to defend to delay proceedings (no bona fide defence) to
apply to court for judgment.
Chrismar Pvt Ltd v Stutchbury & Anor 1973 (1) RLR 277.
There was an application for summary judgement. The Plaintiff’s claim was for
accelerated performance by reason of an allegedly implied term of the contract of
the defendant partially imperformed obligations as the purchaser under a written
deed of sale o f a general dealer investment business as a going concern. The
defendant’s defence that he had cancelled the contract and had intended to
counter-claim for cancellation of contract and restitution. There was extensive
correspondence between the parties attorney in which the defendant’s defence
on counter claim were provided and these were that a resolutive condition of the
agreement was not timeously fulfilled and also that the plaintiff had failed to
deliver the subject of contract of sale (ii) The defendant alleged that have been
induced to enter into contract by material and fraudulent misrepresentation. The
defendant were denying the alleged implied terms on which the plaintiff was
53
P a g e | 54
relying on
plaintiff.
performance. There was application for summary judgement by
Held: The special procedure for summary judgment was conceived so that a
malafide defendant might summarily be denied except under honorous
conditions the benefits of the fundamental principle on audi alteram parten
(principle of natural justice to hear both sides of the case.) So extraordinary or
evasion of a basic tenet of natural justice would not be resorted to likely and it is
well established that it is only when all the proposed defences to the plaintiff’s
claim are clearly inarguably both in fact and in law that this drastic relief will be
afforded to the plaintiff pg. 279.
Held: The defendant had raised factual and legal issues which were highly
arguable. The application for summary judgment was ill conceived since the
plaintiff was aware of the proposed defences. Application for summary judgment
was dismissed.
Procedure O10
The application for summary judgment is a court application and can be made at
any time before a pre-trial conference is held. Court application will be supported
by affidavit made by the plaintiff or any other person who an swear positively to
the facts and in the affidavit, the deponent of the affidavit will do he following;
verify the cause of action and the amount claimed if any; state that his order
belief there is no bonafide defence to the actioR64(2).
The deponent to the affidavit may attach documents to the affidavits verifying the
cause of action or support the belief that there is no bonafide defence to the
action R6(3) – it is a restatement of decision in Beresford Land Plan v
Urquahart 1975 (1) RLR 263, 1975 (3) SA 619.
Once an application has been made the defendant has several options.
(1)
judgment which may be given against him/her in the action R66(3)(a)
whatever security given must satisfy the registrar that it is adequate
(2)
to satisfy the court by affidavit or with the leave of court by oral evidence
that he has a good prima facie defence R66(1)(b).
•
•
Affidavit can also be by defendant or anyone else who can swear positive to
the fact – with personal knowledge of the facts.
What is meant by good prima facie defence?
(i) a question of law can be a good prima facie defence. Shingadia v
Shingadia 1966 RLR 285. The plaintiff claimed summary judgement on an
agreement which required him and another to act jointly in claiming relief.
The plaintiff and the other claimant were brothers and they were also partners
in the business. The other claimant who was supposed to have been joined
54
P a g e | 55
was deceased at the time. The defendant argued that the plaintiff should
have joined the executor of the estate of the deceased as co-plaintiff.
Held: Summary judgment should not be granted when any real difficulty as to
the matters of law arises. However the court can still grant summary judgment if
satisfied that the point of law raised by the defendant is really arguable.
Held: The defendant had put forward a triable and arguable issue. The plaintiff
sought to amend the summons to cure the defect but the amendment was
refused because it was not proper to make it at that stage. Application for
summary judgment was dismissed with costs.
Hughes v Lotriet 1985 (2) ZLR 179 (H)
The claim was for $3000 being money lend and advanced to the defendant. The
defendant had pledged certain musical instruments as security for the loan. The
defendant entered appearance to defend and the plaintiff applied for summary
judgement. The defendant raised two defences in opposing summary judgment.
(i) he was wrongly cited as defendant. The money had been lend and advanced
to the company named International Music Enterprises (Pvt) Ltd for which he was
a director (ii) the plaintiff was in breach of a contract entered into with the
company and wanted to counter claim and value of claim was actually $5 300 for
recovery of assets.
Held: First defence contradicted the written loan agreement which was annexed
to the plaintiff’s affidavit. Even if it was the company then the defence should not
succeed because if he acted as agent of the company then he had not disclosed
his principal and signed the agreement. The counter claim could not succeed
because there will be no claim can arise from the pledge until the principal
obligation has been discharged. Summary judgement was granted.
Lincoln Shop (Pvt) Ltd v Axis Internationl and Wonder Chizema HH 54/94
An application for summary judgment and claim based on two lease agreement
and plaintiff was seeking arrear rentals totalling $19 288. The second defendant
had signed the leases on behalf of the first defendant and he also bound himself
as co-principal debtor. The plaintiff attached the following documents in support
of its application for summary judgment.
(i)
(ii)
(iii)
copy of the lease agreement
an acknowledgement of debt in respect of part of the arrear rentals
a letter to the plaintiff by the first defendant managing the premises in
which he indicated willingness to vacate the premises and pay the arrears
and sign an acknowledgement of debt in respect of the arrears. The
defendant’s defence was that the agreement of lease attached was not
the one he signed and that he had no authority to bind the company.
55
P a g e | 56
Held: The defendant had not denied liability but was merely raising technicalities
(were missing pages of the lease agreement). The defendant had no bona fide
defence and summary judgment was granted.
11/0/04
Rex v Rhodian Investment Trust (Pvt) 1957 R & N 723 1957 (4) SA 631.
Good prima facie defence means that the defendant must allege fact which if he
can succeed in establishing them at the trial would entitle him to succeed in his
defence.
Wilson v Hoffman & Anor 1974 (1) SA 44
The claim was for goods sold and delivered. The defendant’s defence was that
some of the goods were defective and had to be repaired at an estimated cost of
$1 613.30. There was an argument by plaintiff’s counsel that this estimation was
not an averment of fact and therefore do not entitle the defendant to a defence.
Held: The phraseology urged by the defendant should not be placed under a
microscope. A mere want of particularity in making an averment that discloses
the defence sought to be relied on is an ordinarily fatal to the defendant’s case
provided that the facts are there good if proved to be a good defence.
Held: The defence have raised a legitimate issue for trial. The facts of the
defendant’s counter-claim was less than the plaintiff’s claim would not make it
unacceptable to the defence to summary judgment.
Rheeder v Spence 1978 (1) SA 1041
The plaintiff claimed $4500 being money lend and advanced to the defendant.
The defendant’s defence was that at the time that he loans were made he and
the plaintiff were having an affair and living together as husband and wife. It was
agreed that he would repay when “he could afford and also when it was
convenient to do so. The plaintiff’s alleged that the condition of repayment was
vague and unenforceable and therefore the defendant had no good prima facie
defence had no a good prima facie defence.
Held: The defendant had raised a triable issue that even though the condition
was vague it could be established by evidence at trial.
Oak Holdings (Pvt) Ltd v Newman Chiadzwa SC 50/86. The plaintiff sued the
defendant for payment of $92 950.00 du under an 1.0.u note signed on behalf of
the defendant by its managing director. The plaintiff applied for summary
judgment. The defendant’s defence was that the i.o.u not signed on behalf of the
defendant by its managing director. The plaintiff applied for summary judgment.
The defendant’s defence was the i.o.u not a question was to the knowledge of
both parties and fictitious document. He said it had been created for the purpose
which was later abandoned. She gave full details of the alleged purpose. The
defendant went on to say that when the purpose was abandoned it was agreed
56
P a g e | 57
that the i.o.u note should be destroyed and that the plaintiff had actually
destroyed the document in the presence of the defendant which he fraudulently
presented as i.o.u note. The judge in the HC was of the view that the defence
raised by the defendant was so improbable in the facts that it could not be good
prima facie defence. Summary judgment was granted and appealed to the SC.
The SC disagreed with the approach of the HC on the question of defence and
stated that applications for summary judgment are not decided on a balance of
probabilities however strong. Unless the court is satisfied that the plaintiff’s case
is clearly unanswerable it is not entitled to grant summary judgment. The
defendant’s defence was disclosed in the affidavit “replete with details” (full of
details) and “by no means so far fetched at it can be dismissed out of h and as
an obvious fabrication.” Appeal was allowed with costs.
R67 limits the evidence that can be presented at the hearing of the application of
summary judgment. The plaintiff is restricted to the affidavit which would have
been made in support of the application and neither party may cross examine
any party who gives evidence wither orally or by affidavit. However there are an
exception in a proviso to R67. These are:
(h)
(i)
(j)
(a)
the court may permit evidence to be led in respect of any reduction to the
plaintiff’s claim R67(a).
The court may ask questions of any person who gives oral evidence for
the purpose of elucidating or clarifying what the defence is or for the
purpose of determining whether that the time the application was
instituted the plaintiff was or should have been aware of the defence
R67(b).
The court may also permit the plaintiff to supplement his affidavit to deal
with either or both of two specific issues.
any matter raised by the defendant which the plaintiff could not reasonably
be expected to have dealt within his first affidavit – where plaintiff was
taken by surprise.
See Lincoln Shop (Pvt) Ltd v Axis Internatinal HH 54/94
MWP Enterprises (Pvt) Ltd v V.A.M Machado (Pvt) Ltd HH 139/93
The plaintiff’s were allowed to file supplementary affidavit.
❖ R70 the court may give leave to defend either unconditionally or subject to
conditions i.e the giving of security.
❖ R73 deals with a situation where there are co-dependants and the court can
make a decision that one defendant is entitled to pay and the other not. In
that case the court will give leave to defend to the defendant entitled to
defend and then enter summary judgement.
❖ Where the defendant show that has good prima facie defence on part of the
claim and the court cold give leave to defend on that part of the claim.
57
P a g e | 58
❖ R72 – the costs of application of summary judgment if unsuccessful – the
court gives the defendant room to defend and decide who will pay the costs
for summary judgment.
❖ The general order is costs in the cause means that the decision on who is to
pay is deferred until the matter is finalised. Whoever succeeds will recover
the costs of proceedings to the application for summary judgment.
❖ The court may reserve the question of costs. The decision as to who is to
pay for the costs of unsuccessful summary. Judgment shall be deferred and
reserved by the court usually where the case is complex or not clear.
❖ In terms of R72(b) if in the opinion of the court the plaintiff knew that the
defendant relied on a contention which would entitle him to unconditional
leave to defend, the court will order the plaintiff to pay the defendant’s costs
on a LP and client costs. (Higher scale to penalise somebody) and also order
that the action be stayed until the plaintiff has payed the costs. Interpretation
of the provision see:
The court said that the rule contemplates that in appropriate cases the court may
order a stay of action until costs are paid.
Held: there was a no reason to find that the plaintiff attempted to harass the
defendant or had been guilty of approbrious (blameworthy conducts) conducts
other than the plaintiff had sought to gain an advantage over the defendant by
compelling him to make sworn disclosures of his defence.
Held:
the plaintiff had merely taken an over-songuire (over optimistic)
Application dismissed with cost on party to party scale.
Plaintiff to pay costs on a party to party scale. R72(b) – applied where the
plaintiff knew that the defendant was relying on over-songuire view of a case.
Rheeder v Spencer (supra)
DISMISSAL OF ACTION
It is obviously the reverse of summary judgment. In that case it is the defendant
who alleges that the plaintiff’s claim is of no substance and should be dismissed
in a summary manner. 011.
The defendant can apply for dismissal of plaintiff’s action on the ground that it is
frivolous or vexatious R75(1). The application is a court made by a defendant or
by a person who can swear positive to the statement stating that he believes that
the claim is frivolous or vexatious and stating out reasons for his belief.
R75(3) the deponent of the affidavit may attach to his affidavit documents
verifying his belief that his action is frivolous or vexatious. Thereafter the
procedure is the same as for court applications as an order 32 of the HC Rules.
58
P a g e | 59
What is meant by frivolous or vexatious?
Rawden v Edwards (168 (2) RLR 212
The procedure was intended to apply actions which were manifestly groundless
or improbable and no decision on the probabilities of the case should be given.
Wood No v Edwards 1968 (2) RLR 212
The plaintiff sued the defendant for wages which he alleged were due to him by
the defendant. The defendant was the trustee of the plaintiff’s insolvent state.
The defendant had employed the plaintiff as a manager of the insolvent estate at
a salary of £124/month. They were shortfalls in the payments made to the
defendant totalling £844. The defendant admitted the claim but sought to set it
off by claims due to him by the plaintiff for monies received and not surrendered
to the estate and also tax costs for previous proceedings instituted by the
defendant against the plaintiff which were unsuccessful. The defendant admitted
receiving the money but denied submitting them to the estate. He also admitted
that he owed the tax costs but argued that it was inequitable to set them off for
earlier claim for wages. The defendant applied for dismissal of plaintiff’s action
as being frivolous or vexatious.
Held: The same principles apply as in summary judgment. The plaintiff had no
possibility of succeeding in is claim because the trustee who was the defendant
was entitled to set off. The plaintiff’s claim was dismissed as being vexatious
and the judgement of absolution from the instance was granted. However the
defendant was not awarded his costs because the court said that he was partly
to blame for the misunderstandings leading to the litigation.
Wright v Banda HH 30/94
The defendant sought dismissal of the plaintiff’s claim for defamation on the
ground that it was frivolous or vexatious. The case involves a report which was
prepared by the defendant which the plaintiff claimed was defamatory of him and
had resulted in his being fired. The defendant was raising a defence of qualified
privilege. It was held that the purpose of the application for dismissal of plaintiff’s
claim as frivolous or vexatious is to provide the defendant an opportunity of
terminating the process of litigation without going through the rigours and costs of
trial in a situation where the plaintiff has no reasonable prospects of success. Pg.
1.
In order to resist the application for dismissal the plaintiff needs to show that he
has raised triable issues and that his case has a possibility of success. He does
not have to demonstrate a certainty or even a likelihood of success at a future
trial but only that his case is not hopeless. Pg 6
R75(1) the defendant may make the application after he has filed his plea.
59
P a g e | 60
Powers of the Court
The court will dismiss the application by the defendant unless it is satisfied that
the action is frivolous or vexatious. When the court dismisses the application
then the action proceeds as if no application for dismissal has been made
R79(1).
This power applies whether the plaintiff has given evidence or not even if the
plaintiff does not respond to defendant’s application.
If the court is satisfied that the claim is frivolous or vexatious it may dismiss the
action and enter judgment of absolution from the instance with costs. The use of
the work may indicate discretion.
Where the court is of the opinion that the defendant has no grounds for alleging
that the action was frivolous or vexatious it may order that the defendant pay the
plaintiff’s costs of a legal practitioner and clients scale. R79(3). If there is more
than one defendant and the court is of the view that the action is frivolous or
vexatious against one defendant and not the other, the court may order that the
action be dismissed and judgment of absolution from the instance entered in
respect of the defendant against whom the action is frivolous or vexatious but the
plaintiff would be at liberty to proceed with the action against the other defendant
or defendants . R79(4).
AMENDMENT OF PLEADINGS O20
In terms of R132 pleadings may be amended with the consent of all parties or if
they fail to have consent should be an application for amendment. The
application can be made to the court or to a judge at any stage during the
proceedings including at the trial.
A plaintiff can amend the pleadings to include a new cause of action which has
arisen after the issue of summons R134(1). If the opinion of the court or judge
such amendment may change the action substantially then the amendment
would be refused and the plaintiff would have to institute a separate action.
Where the court has granted an amendment which introduces a new cause of
action the court shall fix the time for the defendant entrance of appearance to
defend and for the filing of all subsequent pleadings. R134 (2).
The purpose of amendment of pleadings is to ensure that the issues which the
parties seek to be decided at court are brought before the court.
Levenstein v Levenstein 1955 SR 91
When dealing with an opposed application to amend the pleadings the court has
a very wide discretion as emphasized in Shill v Milner 1937 AD 101 at 105.
60
P a g e | 61
“The object of pleading is to define the issues, and parties will be kept strictly to
their pleadings where any departure would cause any prejudice or prevent
inquiry. But within those limits the court has wide discretion. For pleadings are
made or the court and not the court for pleadings.
(b)
Whether the amendment in respect of its scope or the time at which it is
applied for is likely to prejudice the opposite party or parties. If there is
prejudice the court will look at whether the prejudice can be cured by an
appropriate order as to the postponement and or costs.
See Lamb v Beazley NO 1988 (1) ZLR 77
Before trial the plaintiff applied for leave to withdraw his declaration and further
particulars thereto and substitute a new declaration. The defendant opposed the
application. The plaintiff’s original claim was for an order directing the defendant
to render or account of the sale of flu cured tobacco belonging to an insolvent
and costs of suit. The plaintiff was claiming to have been the owner of half of the
tobacco crop that was sold. The defendant requested the particulars of the
alleged ownership. The plaintiff replied that he has paid the insolvent $28 000 fo
half the crop which he gave as equivalent to 50 000 kg. The agreement was
reduced to writing but not signed. The plaintiff had supplied a copy of the
unsigned agreement as part of the further particulars. The defendant’s defence
was that the agreement between the plaintiff and the insolvent was illegal in that
it contravenes section 44(1) of section 36(1) of the Tobacco Marketing and Levy
Act of 1977. The plaintiff amendment sought to allege that the tobacco was not
cured but was either still growing on the farm or had been reaped but not cured.
The plaintiff also sought to withdraw an unsigned written agreement. The plaintiff
proposed amendment would have the effect of removing the illegality of the
transaction between him and the insolvent. There was no explanation as to why
the original declaration had been filed.
Held: Generally an application to amend a pleading will be allowed unless it is
malafide or there is incurable prejudice. However the explanation must be made
timeously and an explanation must be given as to why the allegation was not
made when the pleading was originally drafted.
Held: Amendment sought by the plaintiff would introduce a new cause of action
which will call for a fresh plea from the defendant.
Held: The proposed amendments was designed to destroy one of the defences
raised by the defendant and was therefore prejudicial to the defendant.
The application to amend was dismissed with costs.
Trans African Insurance Co v Maluleka 1956 (2) SA 273 AD
The plaintiff sued for herself and on behalf of her 5 minor children for loss of
support as a result of the death of her husband in a collision involving a vehicle
insured by the defendant. The summons did no set out that the defendant was
61
P a g e | 62
being sued as insurer but the plaintiff had set out his details in a petition to use
i.f.p. (informa pauperis) which have been served on the defendant. The
defendant sought to have the summons struck out as not in compliance with the
rules which would make it impossible for plaintiff to rescuscitate the claim due to
prescription. The plaintiff sought to amend the summons. The defendant
contented that the amendment should not be allowed to defeat the defence of
prescription. He cited some English cases on the point. He alleged that the
plaintiff was now creating a new cause of action.
Held: Assuming that the SA practice was the same as the English one no new
cause of action was being introduced by the amendment. The defendant fully
aware of the cause of action from the petition to sue i.f.p.
The appeal was dismissed with costs.
If an amendment of a pleading amounts to withdrawal of an admission the court
will require an explanation as to how it came to be made and also why it is
sought to resile from it. It must not cause incurable prejudice it must not be
malafide.
DD Transport (Pvt) ltd v Abbort 1988 (2) ZLR 92 SV
The plaintiff sued the defendant for payment of $7 650 being the damages
suffered through the negligence of the defendant’s employees when transporting
his boat trailer form Harare to Bulawayo. The plaintiff alleged that the conract
had been concluded with one King who represented the defendant. In his plea
the defendant denied that King had authority to conclude the contract. In his
replication the plaintiff alleged that King held himself out as having authority to
conclude the contract. The defendant in his rejoinder denied the entire
transaction between King and the plaintiff and put the plaintiff to the proof hereof.
The plaintiff LP protested that this amounted to withdrawal of an admission and
applied to have the offending paragraph of the rejoinder struck out. The
defendant applied to amend his plea by withdrawing the admission. An affidavit
from the LP who drafted the plea and rejoinder stated that he (LP) had no
authority to make the admission and had not appreciated the fact that the
relevant paragraph could be construed as an admission. The plaintiff filed a
replying affidavit in which he indicated with supporting copies of correspondence
between the parties that the defendant never had denied the transaction between
plaintiff and King and the only issue being raised was that authority of King who
represent the defendant. The defendant did not respond to the plaintiff’s
affidavit. The application to strike out was granted and the defendant’s
application to amend his plea was dismissed. The defendant appealed to the SC
and the SC said “the court would not grant withdrawal of an admission without a
reasonable explanation of how it came to be made and why it is sought to resile
from it” pg 98. “in addition the application to amend must not cause incurable
prejudice and must not be malafide.”
62
P a g e | 63
Held: Although the court a quo was wrong to disbelieve the affidavit of the Legal
Practitioner the defendant has still not contradicted the evidence that it had
admitted the transaction between the plaintiff and King. Therefore the application
to amend the plea was not bona fide. Appeal was dismissed with costs.
APPLICATIONS: 032
Applications can be divided into two categories:
(a)
court application – an application in writing to the court on notice to all
interested parties. R226 (1)(a).
(b)
chamber application – an application to a judge in writing R226(1)(b).
N.B One can make oral application in certain circumstances R226 (2) provies
that the chamber application is not permissible unless the matter falls within the
following categories
(i) if the matter is urgent and cannot wait to be resolved through a court
application.
(ii)
if the rules or any other enactment provides for the use of chamber
application
(iii)
if the relief sought is procedural or for a provisional order where no interim
relief is sought.
(iv)
If the relief sought is for default judgment or for a final order in the
following circumstances.
(a)
where the defendant or respondent as the case may be has had
previous notice that the order has been sought and is in default
(b)
where there are special circumstances which justify the use of
chamber application (specify the circumstances) In al other
circumstances the application is a court application.
General Rules Applying to Court and Chamber Applications
•
•
•
Basically all applications and the opposition of other documents should be
legibly written on A4 size paper and on one side only. R227(1)(a). If it is a
long document it should be divided into paragraphs and the paragraphs
should be numbered consecutively and each paragraph should contain where
possible a separate allegation. R227(1)(b). The whole set of documents for
the application must e numbered consecutively R227(1)(c). Numbering
documents consecutively in a page is called pagenating.
Application and notice of opposition should state the title of the matter and a
description of the document. R227 (2)(a) and also shall be signed by the
applicant or the respondent or by his or her LP R227(2)(b). And it should give
an address for service which should be within a 5km radius from the street in
which the document is filed R227(2)(c).
An affidavit must be made by the applicant or respondent himself or by a
person who can swear positively to the facts. R227(4). An affidavit can also
63
P a g e | 64
•
•
have its documents verifying the facts stated in attachments as annexures
and they are part of the affidavit in which they are attached R227(4)(b).
If a party requires an extension of the time within which to respond to the
application they can make a chamber application to the extension and the
judge will make an order as he thinks fit. R229. The respondent may file a
counter application (equivalent to counterclaim) R229(A).
R229(b) gives the court or judge who is hearing an application the power to
permit or require any person to give oral evidence if its in the interest of
justice to hear such evidence. R229C allows the court to condon the use of
incorrect form of application unless they consider that some interested party
has or may be prejudiced by failure to use the proper form and that such
prejudice cannot be remedied either by directions to the service of the
application or an appropriate order of the cost.
COURT APPLIATION
•
•
The form used is form no. 29 and the application must be supported by one or
more affidavits setting out the facts on which the applicant relies (founding
affidavit). It can have supporting affidavits – these are affidavits from people
who swear true facts about facts alleged in the founding affidavit.
If the application is not to be served on any person the form to be used is
form 29B with the appropriate modificaitons.
FORM 29
The applicants will file with the Registrar and serve a copy on the respondents.
Requirements for service is R231(1). If you do not serve an affidavit then you do
not use it is support of your application unless the court orders otherwise
R231(2). Once the application is served file proof of service with the Registrar
(R41) in accordance with the Rule 231(4).
If the respondent wishes to respond he should file the notice of opposition within
a period of 10 days exclusive of the day of service and one day of every
additional 200 km R232.
If the respondent fails to file the notice of opposition within the time limit he or she
shall be barred. R233(3) if the respondent wishes to respond he files a notice of
opposition in form 29 which is supported by one or more affidavits (Respondent
Opposing Affidavit or Replying Affidavit).
The applicant would have to respond to respondent opposing affidavit by an
answering affidavit. The answering affidavit must be filed at least 10 days before
the date of hearing of the application R234(1).
After answering affidavit nr other affidavits can be filed except with the leave of
the court or judge R235.
64
P a g e | 65
Next stage is to set down the application for hearing. Firstly if the respondent
has been barred then the applicant may proceeds to set the matter down without
further notice to him R236(1). If there is an opposing affidavit the normal
procedure is to set down the matter in terms of R223 (general set down for civil
cases). Where the respondent has filed a notice of opposition and opposing
affidavit and after one month, the applicant has neither filed an answering
affidavit or set down matter for hearing the respondent has two options:
(i)
R223 the respondent may set the matter down for hearing
(ii)
or make the chamber application to dismiss the matter for court of
prosecution R236(3). The same applies where the applicant had filed an
answering affidavit and after a month has not set the matter down for
hearing R236(4).
The date of set down can be altered by a party either by application orally or
make chamber application R237. Where the matter is to be set down for hearing
the applicant has to file heads of argument which is basically on indication of
what he main arguments are going to be and including the case authorities.
R238.
Hearing of the application – the order is that the applicant is heard first and the
respondent is heard thereafter responding to applicant’s application and then the
applicant replies but the court may order otherwise R239. The court will then
grant the order is finality. The court may grant the order applied for or it can
dismiss the application in its entirety or grant a variation of the order sought. The
court may also grant a provisional order rather than a final order. R240. The
court will then make an appropriate order as to costs.
CHAMBER APPLICATION
It should have a draft order. The appropriate form to use is Form 29B. It should
be supported by one or more affidavits unless the application falls within the
provisions of R241(2) where the chamber application is for default judgment in
terms of R57 (for a claim for debt or liquidated demand) and also where the facts
are evident from the records you don’t need an affidavit. If the application is to
be served on an appropriate party use Form No. 29 with appropriate
modifications. The chamber application should be served on all interested
parties unless the respondent has had due notice of the order sought or
(applicant is only party to the application) you can’t make it ex parte unless:
R242(1) sets out the circumstances in which the application is made ex parte (i) if
the matter is uncontentious in that the applicant is the only person who can
reasonably expected to be affected by the order sought (ii) if the order sought is
either a request for directions or an order to enforce any provisions of the rule in
circumstances where no other person is likely to object. (iii) where there is a risk
of perverse conduct in that any other person who would otherwise be entitled to
65
P a g e | 66
notice of the opposition is likely to act so as to defeat wholly or partly the purpose
of the application prior to an order being granted or served. (iv) where the matter
is so urgent and the risks of irreparable damage to the applicant is so great so
that there is insufficient time to give notice to other parties entitled to example a
parent about to remove a child from jurisdiction. (v) where there is any other
reason acceptable to the judge why notice should not be given to parties entitled
to.
Ex parte applications require utmost good faith. The applicant should not
mislead the court by giving information which is inaccurate. R242(2) requires the
applicant to make exparte application to set out the reasons why he believes the
mater should be heard ex parte. If the applicant is legally represent a certificate
from a LP is required which also sets out the reasons that the matter falls within
the provisions of Rule 242(1).
See Vanlear v Begley Bros 1957 R & N 902
ZIMDEF (pvt) Ltd v Minister of Defence and Anor 1985 (1) ZLR 146
A legal practitioner can filed heads of arguments in terms of R243.
Set down depends on whether matter is urgent or not if urgent the Registrar will
immediately submit the papers to the judge who will consider the matter R244.
However there is a proviso to R244 that the judge may direct that any interested
party be invited to make representations in such manner and with such time as
the judge may direct and the representations will be on the issue on whether or
not the applications should be treated as urgent. Where the matter is not urgent
the registrar will submit it to the judge in the normal cause of events but without
undue delary R245.
The powers of the judge:
(h)
the judge may require the deponent of any other person who may assist in
the resolution of the matter to give evidence under oath or otherwise R246
(1)(a)
(i)
the judge may require either party L.P representatives to appear before
him to present other arguments as the judge may require R246(1)(b). If
the applicant is requesting a provisional order then the judge will grant the
provisional order either in terms of the draft or a variation of that draft if he
is satisfied that the papers filed establish a prima facie case. The
provisional order is sometimes called rule nisi. Before granting a
provisional order the judge may require applicant to give security for any
loss or damage which may be caused by the order 246(3). R247 sets out
the contents of the provisional order. Firstly it shall be in Form 29C it shall
specify the parties upon whom the provisional order to be served together
with the application and supporting documents. If the services is not
together to be effected in terms of the rules then the order shall specify
how service is to be effected i.e by advertising in a local newspaper. The
order shall specify the time within which the respondent and other
66
P a g e | 67
interested shall file notice of opposition if they oppose to the relief sought.
Once the provisional order has been served the matter will then proceed
like a court application.
Specific provisions relating to Deceased Estates and Persons under
Disability R248 and 249.
R250 requires that applications involving the performance of any act in a
deeds registry serve a copy of the application on the registrar of deeds.
The service should be done at least 10 days before the date of set down
of the application. The purpose of service is to allows the registrar of
deeds to make a report on the matter if he considers it necessary of if the
court requires such a report.
APPLICATION FOR CONTRIBUTION TOW ARDS COSTS.
•
•
(j)
(k)
(l)
•
This is a court application where one spouse may obtain contribution towards
his or her costs from the other spouse to enable him or her costs form the
other spouse to enable him or her to institute or defend divorce or other
matrimonial proceedings. In practice it is very rare for a husband to be the
applicant.
The rationale for the application is because of the reciprocal duty to support
that the spouses owe to each other. Criteria for deciding whether or not the
applicant should get contribution. The applicant must establish the following:that she does not have the necessary means to find the proceedings
that her spouse is able to make the contribution
that she has a reasonable prospect of success to the claim if she is the
plaintiff or defence if she is the defendant. If the applicant has movable
property which she might reasonably be expected to sell then she will not
normally be entitled to the contribution.
See Landry v Landry 1970 RLR 134
Ansell v Ansell 1980 ZLR 416
As to when the court will say she should sell her assets to the court will take
into account the relevant financial position of both spouses and then make a
determination of what is reasonable and just to the circumstances. In the
event that both spouses’ financial position is about equal but one party is
possessed of considerality more assets on the other then it will be inequitable
for the court to compel the spouse with less assets to exhaust, the modest
asset inorder to finance the litigation.
See Barras v Barras 1978 RLR 384
Muzondo v Muzondo HH 247/83
67
P a g e | 68
The Procedure
It is a court application and include supporting affidavits. The court may award
such a sum as it considers necessary to enable her to place her case adequately
before the court. The court may order stay of proceedings until the contribution
has been paid. The order for contribution can be enforced by the usual means
for enforcing the judgment for payment of money. The costs of the application
for contribution towards costs are generally costs in the cause:
2.
Application for Maintenance pendente lite
This is where one spouse may apply for an interim order for amendments against
another spouse or herself or himself of the children during the course of divorce
or other matrimonial proceedings and pending the making of a maintenance
order for those proceedings. The applicant is the wife. The basis of the
application is the reciprocal duty of support of spouse and as parents to children.
The basis for the application is the reciprocal duty of support of spouse and as
parents to children.
What does the applicant has to show to succeed?
(i)
that she and her children have a right to support. The respondent is
legally obligated to support the children.
(ii)
She and the children are not being maintained.
(iii)
The respondent is in a position to maintain the applicant and the children.
He has the financial means to support.
(iv)
She has reasonable choice of success in the main action.
Procedure
It’s a court application supported by affidavits and the list of expenses is to be
attached on your affidavits. This application is combined with application for
contribution towards costs but it does not necessarily mean that if the former is
granted the later will be granted because one is lumpsum payment and the other
is a recurring contributions (maintenance). Usually the respondent with means
will have a recurring obligation.
The applicant and the children are entitled to be maintained at a comparable
standard to the standard they were enjoying while living with the respondent
provided it is within the respondent’s means.
Barras v Barras (supra)
Davies v Davies (1980) ZLR 141
3.
Application for Custody or Access pendente lite
This is where the applicant is applying for an interim order of custody or access
of the minor children pending the final determination of the matrimonial mater.
68
P a g e | 69
The basis of the decision is the best interests of the children. The court usually
avoids unnecessary changes of custody meaning that the parent who has
defacto custody will remain with the children until the matter is finalised. The
application can be combined with application for contribution towards costs and
maintenance pendente lite.
Chamber Application
Application for an urgent interdict.
An interdict is an order prohibiting or restraining someone from doing a particular
act or ordering someone to do a positive act to remedy an unlawful state of
affairs for which he/she/it is responsible.
Classification of Interdicts
There are two ways of classifying interdicts
(i)
looks at what the interdict require someone to do
(a) prohibitory – the interdict prohibiting the person from doing wrong.
(b) mandatory interdict – interdict which orders someone to act to remedy
a wrongful state of affairs for which he/she is responsible.
(c) Restitutory – interdict which orders the person to restore possession of
property to a person who is unlawfully deprived of his property.
(ii)
It is classified on whether the order is temporary or final
(a)
a final interdict is order to secure a permanent end to an unlawful
state of affairs;
(b)
temporary/interlocutory interdict is an order granted pendente lite
inorder to secure the rights of the applicant pending the outcomeo f
either contemplated or existing litigation.
Requirements for final interdict
(a)
(b)
(c)
The applicant should establish a clear right clearly established in law
Applicant should show that he has either suffered actual injury or has a
reasonable apprehension of injury.
Applicant should show that the is no other ordinary remedy by which he or
she can be protected in the same way as by an interdict.
See Setlogelo v Setlogelo 1914 AD 221 at 227
Flame Lily Investment Co (Pvt) Ltd v Zimbabwe Salvage and Anor 1980 ZLR
378
Neptune (Pvt) Ltd Venture Enterprises HH 127/89
Requirements for Interlocutory Interdict
(a)
(d)
a right which though prima facie established is open to some doubt. (b)
and (c) are the same as in final interdict.
the injury must be irreparable
69
P a g e | 70
(e)
the balance of inconvenience must favour the applicant
N.B Authorities are the same as in final interdict and also Chikore v Nyamukapa
& Ors HH 267/90
For a final interdict in so far as the right is concerned the interdict should not be
granted on application proceedings unless the facts as stated by the defendant
together with the admitted facts in the applicant’s affidavit justify the granting of
such an order.
See Stellenbosch Farmers v Stellenvale Winery 1957 (4) SA 234 –
interlocutory interdict.
See Webster v Mitchell 1948 (1) SA 1186 WLD
The applicant was seeking an order restraining the respondent from alienating,
dealing with and racing a race horse pending the action to be instituted by him.
The applicant claimed ownership of the horse and the respondent was disputing
the claim. The applicant had allowed the horse to be registered in the name of
the first respondent and later on on the respondent’s wife.
Held: The right to be set out by an applicant for a temporary interdict need to be
shown by a balance of probabilities. If it is prima facie established though open
to some doubt that is enough pg 1189. The propre manner of approach is to
take the facts as set out by the applicant together with any facts set out by the
respondent which the applicant cannot dispute and consider whether having
regard to the inherent probabilities the applicant could on those facts obtain final
relief at a trial. The facts set out in contradiction by the respondent should then
be considered. If serious doubt is thrown on the case of the applicant he could
not succeed in obtaining temporary relief for his right prima facie established may
only be open to “some doubt”.
Flamelily Investment (Pvt) Ltd v Zim Salvage and Anor ZLR 378.
The applicant sold certain mining claims to the first respondent for $25 000
payable by a deposit of $10 000 and in 3 months instalments of $5000. The
agreement stipulated that the applicant was entitled to cancel the agreement
notice in the event of the first respondent’s fault. First respondent refused to
accept cancellation. First respondent defaulted and the applicant gave notice of
cancellation and asked first respondent to vacate mining claims.
First
respondent refused to accept cancellation and alleged fraudulent
misrepresentation. First respondent said it was prepared to abide by the
contract. The applicant sought a temporary interdict to restrain the respondent’s
from continuing with mining operations pending the determination of its claims for
cancellation of contract.
Held: The court set out the requirements for a final and temporary interdict. The
court was in line with Setlogelo case. The applicant had shown a prima facie right
and met the other requirement for a temporary interdict. The court also held that
70
P a g e | 71
since the balance of convenience issue had not been raised by the respondent,
the applicant was entitled to the relief sought.
On the issue of injury (apprehension or actual) there are two cases which
emphasizes that the injury should be of a continuing nature. If it’s a one off event
then the remedy for the applicant is remedies for injury suffered and not an
interdict.
See Performing Right Society (Ltd) v Berman & Anor 1966 RLR 209
The plaintiff sued the defendant claiming an interdict for infringement of copyright
and damages. The defendant had caused or authorized the performance of the
plaintiff’s musical works at a night club. The night club was subsequently closed
when the liquor licencing board refused to renew its licence.
Held: this injury was of a continuing nature because the night club was now
closed.
Held: the interdict sought by the plaintiff was a normal remedy for infringement
where the plaintiff’s rights and the breach of them are clearly established where
the defendant does not claim to be entitled to perform the musical works without
a licence from the plaintiff and where the defendant was not given an undertaking
not to repeat the infringement. For the plaintiff to succeed the circumstances
should not be such that there is no likelihood for future infringement occuring.
The plaintiff foes not have to provide a positive proof of likelihood of repetition of
infringement.
Held: the defendants were likely to repeat the infringement and the interlocutory
interdict was granted.
Performing Rights Society v Butcher & Anor 1972 (2) RLR 362
The facts were almost similar to the above except that it was an application and
the second respondent was insolvent.
Held: The facts that the second respondent is now an unrehabiliated insolvent is
no reason for thinking that he will not commit similar future infringements nor is it
an obstacle to the granting of an interdict restraining him form indulging in such
behaviour pg. 365-66.
Remedy as a Requirement
See Reserve Bank of Rhodesia v Rhodesia Railways 1966 RLR 541
The applicant sought an interdict preventing the respondent from carrying any
good in transit from Zambia and vice versa until or unless the respondent made
certain arrangements about the receipt of moneys to which the respondent was
entitled for carriage of the goods. The proceedings were brought by petition
(chamber application). A rule nisi was granted but a temporary interdict was
refused pending the return day. Three days after the rule nisi was granted the
71
P a g e | 72
Minister of Transport made an order under Emergency Powers (control of goods
and services) Reg. 1966 which achieved the same objections as would have
been achieved by an interdict. On the return date the respondent argued that an
interdict was no longer necessary because an alternative remedy was available
to the applicant.
Held: The interdict should not be granted because of the prerequisites to the
granting of an interdict that is the absence of similar protection by an ordinary
remedy was not satisfied. The court was also of the view that the Minister’s
order was a more effective remedy than the interdict and that the interdict sought
might be an embarrasing conflict between the Minister’s order. The application
for an interdict was refused.
See Coleman v Bristow 1976 (1) RLR 97
An application for an interdict restraining the respondent form exercising certain
hunting rights on the applicant’s farm without the applicant’s permission. The
parties had entered into an agreement permitting the hunting but a dispute had
arisen as to the number of animals which could be shot. The applicant was
granted a rule nisi which operated as a temporary interdict. The applicant argued
that he was entitled to control the respondent’s operations by virtue of a provision
in the Parks and Wildlife Act of 1975. The parties had entered into their
agreement prior to the enactment of the Act. Respondent argued that the
applicant had the following alternative remedies:
(i)
to apply to the Minister to act in terms of s66 of the Parks and Wildlife Act.
(ii)
A claim for damages
(iii)
Criminal prosecution
Held: these were not adequate remedies in terms of applying to the Minister the
curt noted the minister had not acted and it was not possible to know whether the
applicant would be successful in moving the minister to act. In respect to claiming
of damages and prosecution the court noted that these claims would not prohibit
respondent from infringing applicant’s rights.
Held: An attempt to prosecution has been unsuccessful. The interdict was
granted.
Rights Requirements
See Bull v Minister of Justice and Anor 1955 (2) SA 682
It confirmed Webster v Mitchell
See Zim Music Rights Associaiton v ZBC HH 468/88
See Georgias v Zambezi Safari Ranch (Pvt) Ltd HH 71/90
On the issue of balance of convenience the court will look at who is more likely to
be inconvenienced by the granting of the interdict. If the respondent is to be
inconvenienced more than applicant the interdict will not be granted.
72
P a g e | 73
Procedures
(i)
(ii)
(iii)
If applying for final interdict use court application and if its extremely
urgent do it ex parte.
With interlocutory interdict use court application and if extremely urgent
use chamber application ex parte
If you do it ex parte you do not get a final order but a provisional order
(temporary interdict) operates as a temporary-temporary interdict.
Test 2 1/6/04 2-4 pm Tuesday (optional)
Special pleas and interdicts
PROVISIONAL SENTENCE 04
It is a procedure which is designed to enable the plaintiff who sues on a liquid
document to obtain relief without proceeding to trial. The purpose was clearly
explained in Lesotho Diamond Works (1973) (Pvt) Ltd v Lury 1975 (2) SA 140
The plaintiff sued the defendant for provisional sentence on two cheques
backdated 25/01/94 for R2000 and £600 respectively. Both cheques had been
dishonoured because the defendant had stopped payment. The defendant
opposed the provisional sentence proceedings on two grounds:
(i)
the plaintiff being a peregrine had not furnished him with security
(ii)
the diamonds that he purchased from the plaintiff for 5400 would have
been worth R11 500 of they were flawless but because were not flawless
they were worth R8 745 thus giving rise to a counter claim of R2 950. The
plaintiff did no deny the allegation that the diamond was flawless and did
not reply to the defendant’s opposing affidavit. The plaintiff’s counsel
contented reply was unnecessary because they were no indications that
that counter claim arose from the transaction to which the cheques related
and the validity of the cheques had not been challenged. Therefore he
defendant had no probability of success in his counterclaim.
Held: The two transactions were connected and this could be deduced from the
defendants affidavit. On the issue whether the defendant was limited in his
defence to challenging the validity of the cheques or he could establish the
existence of a larger challenge i.e challenge the transactions on which the
instruments formed a part. The court relied on Memel Board of Executors v
Lardinar 1930 OPD 197, the procedural methods of provisional sentences is no
magic want where - with the disarm prospective defendants or dispel all
opposition thereto but it is a well recognised long standing and often used mode
of obtaining speedy relief where the plaintiff is armed with a liquid document”.
The purpose of provisional sentence is to avoid the “more expensive,
cumbersome and often dilatory machinery of an illiquid action.” P. 144. The
conclusion therefore defendant was entitled to raise the counter-claim as a
defence and also the defendant had established a probability of success.
73
P a g e | 74
F O Kollberg (Pty) Ltd v Atkinson’s Motors Ltd 1970 (1) SA 660. The court
said, “the purpose of provisional sentence proceedings is to enable the plaintiff
to receive prompt payment without having to wait for the final determination of
the dispute between the parties.” 662.
Requirements to be Satisfied.
(i)
The plaintiff must be suing on a liquid documen
(ii)
The defendant must be unable to adduce such counter proof or evidence
as will satisfy the court hat in the principal case the probabilities of
success would be against the plaintiff. The probabilities of success must
be in favour of the plaintiff.
What is a Liquid Document?
A liquid document is a document which contain the following characteristics:
(i)
it must be signed by the defendant or authorized rep or be deemed in law
acknowledged by the debtor.
(ii)
The document must send money – it must create an obligation to pay
money.
(iii)
The amount of the debt must be fixed and definite on the face of the
document. No extrinsic evidence would be allowed to prove the debt.
There are certain exceptions where extrinsic evidence would be allowed.
(a)
extrinsic evidence may be allowed on ancilliary items which is ancilliary o
he obligation i.e bank cheques, insurance premiums etc.
See Prudential Building Society v Reynders 1941 WLD 29
(b)
When payment of the debt is unconditional upon the happening of an
event. Evidence to prove that that event has happened can be provided
by extrinsic evidence. What must be conditional is payment of the debt.
See Rich & Ors v Lagerwey 1974 (4) SA 748 AD
The plaintiffs sued he defendant for payment of R5000 due in terms of a
written deed of sale. In the deed of sale the plaintiffs sold to the defendant
the entire issued share capital of a company called “Home Film Centre
(Pty) Ltd. The seller’s entitlement to the purchase price was conditional
upon its fulfilment of certain obligations as included holding of a meeting of
directors and shareholders, resignation of certain officials from the
company, passing of the resolution and delivery of certain documents in
relation to shares. The plaintiffs applied for provisional sentence which
was applied in WLD. The defendant appealed successfully to the TPD
and the plaintiff further appealed. The defence raised by the defendant
was that the summons was defective because the plaintiff did not allege
that they had performed their obligations nor did they tender perfomance
of the same.
74
P a g e | 75
Held: Simple conditions precedent are not a bar to provisional sentence.
All that the plaintiff needs to do is to allege that the condition has been
complied with or that the event has happened. Once the plaintiff does
that, the onus shifts to the defendant to contradict the allegations made by
the plaintiff.
Examples of simple conditions were given as delivery or transfer of script;
giving of notice before payment by the debtor is due; where payment
becomes due by reason of the debtor’s failure to fulfil the terms of a
contract such as failure to pay interest on due date.
The court went on to give a general definition of simple: it connotes a
condition of event of a kind unlikely in the nature of things to give rise to a
dispute or where it is disputed is inherently capable of speedy proof by
means of affidavit evidence p. 755.
Conclusion
Appeal was dismissed because the document on which the plaintiff was suing
was not a liquid document (deed of sale). What was conditional was not the
payment of the debt but the debt itself.
Procedure in Terms of Rules R20
The plaintiff who has a liquid document has to claim provisional sentence R20.
The plaintiff uses a special summons for provisional sentence.
R21 gives the requirements of the summons. In terms of R22 the form used if
form no. 4 and no. 5
Rule 23 – a copy of the liquid document should be served with the summons.
Rule 24 sets out additional requirements where the claim is based on a mortgage
bond.
Rule 25 gives the defendant a response to the summons of a provisional
sentence. The summons for provisional sentence actually calls upon the
defendant to satisfy the plaintiff’s claim or failing which to file papers to oppose
the claim for provisional sentence R25(1) file a notice of opposition and do in
form 29A. which is supported by one or more supporting affidavits indicating why
provisional sentence should not be granted. From then on, the procedure is the
same as opposed applications and O32 shall mutatis mutandis apply R25(2).
What is it that the defendant should establish
(i)
show that the probabilities of success are against the plaintiff.
See Maimba v Nyagura HH 394/84
The plaintiff and the defendant entered into a contract for dale whereby the
defendant sold he plaintiff a residential property in Harare. The plaintiff was
supposed to deposit $3000 and thereafter pay monthly instalments of $140. The
75
P a g e | 76
defendant was apparently overpaid by a total of $2 429.00 to which was then
added by a claim of $76 for legal costs making a total of $2 505.99. The
defendant signed an acknowledgement of debt agreeing to repay that amount by
an initial payment of not less than $500 and subsequently monthly instalments of
not less than $300. The defendant did not make any payment and the plaintiff
instituted proceedings for provisional sentence. The defendant defence to the
provisional sentence was that she had been mistakenly adviced by her estate
agent that she had been overpaid whilst she was owed $7 158.43 by the plaintiff.
She claimed the right to set off this amount against the plaintiff’s claim.
Held: set off was not possible because the plaintiff’s debt was long term whereas
the defendant owed was actually due. Such a set off would amount to a
unilateral variation of contract of sale.
Held: Once the signature on the liquid document is admitted the onus is on the
defendant to show that on a balance of probabilities there is a probability of
success in the principal action in his or her favour p. 4
Conclusion: The application for PS was granted because the defendant had not
discharged her onus.
There are exceptions for the principle that onus lies with the defendant (I) where
he denies the signature on the acknowledgement of debt the onus shifts on to
the plaintiff to prove the signature on a.o.d.
See Donkin v Chiadzwa HH 217/87
The plaintiff issued summons for provisional sentence against the defendant for
he sumo f $10 000 due in terms of a.o.d. The defendant’s response was an
affidavit in which he denied that the signature on the acknowledgment of debt
was his or that he ever borrowed money form the plaintiff. The plaintiff filed an
answering affidavit with supporting affidavits from witnesses who saw the
defendant signing a.o.d.
It was stated that where the defendant denies the signature the onus should shift
to the plaintiff and the matter was referred to trial to resolve disputes on the
papers.
In terms of R29 if the defendant acknowledges the claim either when he appears
in court for the provisional sentence hearing or by filing written notice to the
Registrar the court will give final provisional sentence judgment which disposes
of he matter finally. If the defendant is unsuccessful in opposing PS the court will
give a judgment but within one month after satisfying the judgment of the
defendant voluntarily or within one month of attachment made under a writ of
execution the defendant may not satisfy the judgment the defendant may enter
appearance to defend. The matter will proceed as a contested acion R28.
76
P a g e | 77
If the defendant does not enter appearance to defend within one month the
judgment becomes final. R28.
•
•
•
•
When the plaintiff want to execute the judgment given should provide security
even if the defendant demands security R31.
In all other circumstances the court may order security by the plaintiffs in case
it may appear on trial that the debt or claim was not overdue. R30.
R32 the nature of the security and the amount is fixed by the Registrar.
Either party may appeal against the decision of the Registrar to the court.
R32.
Where the judgement becomes final and security has been provided, security
falls away R28/32. If the judgment is granted and defendant enters an
appearance to defend, the provisional summons should stand as the plaintiff’s
declaration and the defendant shall file his plea within 10 days of entering of
appearance and thereafter the matter shall proceed as an ordinary action.
Where P.S is refused the court will order the matter to proceed to trial and the
summons of PS shall stand as an ordinary summons and the defendant will
be required to enter appearance to defendant within 5 days of the court’s
judgment. Thereafter the matter will proceed as an ordinary action unless the
court gives other directions R34.
INTERPLEADER – 03
Interpleader proceedings can be instituted by an applicant who holds property or
has incurred a liability in respect of which there are two or more claimants and
these claimants are making adverse claims. Generally the parties to interpleader
proceedings are divided into two:
(i)
deputy sheriff can institute interpleader proceedings in respect of property
attached by him and a third party alleges that the property is his and not of
judgment
(ii)
debtor other claimants means any other person who is holding property or
has a liability for which they are facing adverse claims/
•
Purpose was explained in Bernstein v Visser 1934 CPD 270 @ 272.
“interpleader is a form of procedure whereby a person who is a stakeholder
of other custodian of movable property to which he lays no claim on his own
rights but to which two or more other persons lay claim may secure that they
shall fight out their claim among themselves without putting him to the
expense and trouble of an action/actions”. Pg 272-3
Procedure
•
Applicant would give the notice to the parties and the notice would state the
nature of the viability, property or claim which is the subject matter of the
dispute and it will call upon the claimants to deliver particulars of the claim in
the form of a notice of opposition with supporting affidavit(s) it should also
77
P a g e | 78
•
•
•
•
state that the applicant is applying for the court’s decision as to his liability or
the validity of the respondent’s claim R207.
The applicant would deliver with the notice an affidavit and in that affidavit
state:
(i)
they claim no interest in the subject matter in dispute other then the
charges and costs.
(ii)
That they do not collude with any of the claimants
(iii)
That they are willing to deal with or act in regard to the subject mater in
dispute as the court may direct R. 208
(iv)
R206 gives duties of the applicant in relation to the subject mater
pending decision by the court. If the subject mater is merely the
applicant will pay the money to the Registrar who will hold the money
until the matter has been decided R206(1).
Where the subject matter is any other thing capable of delivery the applicant
shall tender delivery of the thing to the registrar or take steps to secure the
availability of the thing in question as the Registrar may direct.R206.
Where the conflicting claims relates to immovable property the applicant
should place the title deeds of the property available to him in the possession
of the registrar and also give an undertaking to the registrar that he will sign
all the documents necessary to effect transfer of the property as may be
directed by the court R206(3)
Once the notice and affidavit have been served on the respondent then the
parties will proceed in the same way as opposed applications R209.
Powers of the Court R210 (2)
(i)
If a party is in default and they don’t appear at the hearing of an
interpleader the court will declare that person in default and all other
persons claiming under him barred. R210(1). In respect of other
claimants who are there the court will adjudicate on various claims after
hearing such evidence as it sees fit. If the court decides that it can’t
decide the issue on paper then the court can order that any claimant be
made a defendant in an action already commenced in respect of the
subject matter in dispute or if there is no action concerned the court may
order a trial and the court will decide which claimant shall be the plaintiff
and which one should be the defendant.
How does the court make such decisions?
If its property attached by the deputy sheriff and the property was in the
possession of the judgement debtor then the court will usually order the third
party who is claiming the property be the plaintiff because it is assumed that
prima facie that the property in possession of the judgment belongs to the
judgment debtor.
78
P a g e | 79
See Bruce NO v Josiah Parks and Sons (Pvt) Ltd 1971 (1) RLR 154
Bruce NO v de Rome and Anor HH 109/89
Greenfield NO v Blignaut 1953 SR 73
It involved an impounded bull. The two parties claimed ownership of the bull and
the court was unable to resolve the matter on papers and ordered matter to go to
trial. It failed to decide who the owner was.
Held: Each party must be a plaintiff as they are. It made a complicated decision
that one party must seek declaration that the bull was his and the other party was
to seek a counter-claim that the bull was his.
If a defendant in an action institutes interpleader proceedings the proceedings
will be stayed until court makes the decision on the interpleader R211.
•
79