CIVIL PRACTICE AND PROCEDURE
I.
THE PROCEDURE OF THE MAGISTRATES COURT
1.
JURISDICTION AND THE LIMITS THEREOF……………………………………..1
2.
ISSUING AND SERVICE OF DOCUMENTS………………………………………...8
3.
SUMMARY PROCEDURES …………………………………………………………..9
Default judgement ……………………………………………………….9
Consent to judgement……………………………………………………11
Payment into court………………………………………………………11
Exceptions to summons………………………………………………….13
Special pleas ……………………………………………………………..14
Summary judgement…………………………………………………….15
Exceptions to plea………………………………………………………..16
4.
PRE TRIAL PROCEDURES………………………………………………………....16
Request for further particulars…………………………………………16
Plea……………………………………………………………………….17
Request for further particulars to plea ………………………………..18
Reply…………………………………………………………………......19
Close of pleadings……………………………………………………….19
Discovery of documents………………………………………………...20
Pre-trial conference……………………………………………………..20
Request for further particulars for purposes of trial…………………21
5.
TRIAL PROCEDURES……………………………………………………………….22
Set down ………………………………………………………………..22
Judgement ……………………………………………………………...24
6.
ENFORCEMENT OF JUDGEMENT………………………………………………24
Warrant of execution………………………………………………….24
Garnishee order………………………………………………………..26
Civil imprisonment ……………………………………………………26
7.
RESCISSION OF JUDGEMENT …………………………………………………..29
8.
APPEALS……………………………………………………………………………..30
Right of appeal……………………………………………………….30
Procedure for noting of appeal……………………………………...30
Execution of judgement pending appeal……………………………30
II.
THE PROCEDURE OF THE MAINTENANCE COURT
1.
APPLICATION FOR MAINTENACE ORDERS ……………………………….31
2.
ENFORCEMENT OF MAINTENACE ORDERS……………………………….32
III.
1.
THE PROCEDURE OF THE HIGH COURT
JURISDICTION ……………………………………………………………………33
General principles……………………………………………...........35
Claims sounding in money………………………………………….35
Claims relating to property …………………………………………37
Matrimonial matters ………………………………………………...38
2.
PARTIES …………………………………………………………………………….40
Legal Capacity ………………………………………………………40
3.
FORM OF PROCEEDINGS ……………………………………………………….42
Action or Application ………………………………………………..42
4.
PROCEEDINGS BY WAY OF ACTION ………………………………………...44
Commencement of Proceedings ……………………………………..44
Demand ……………………………………………………………….44
Summons……………………………………………………...............44
Declaration ……………………………………………………………46
Service…………………………………………………………………46
5.
FURTHER PROCEDURE WHEN ACTION UNCONTESTED ……………….48
Judgment by Consent ………………………………………..............48
Judgment in Default………………………………………………….48
Uncontested Divorce Order………………………………….............49
Application for Rescission of Judgment…………………………….51
6.
FURTHER PROCEDURE WHEN ACTION CONTESTED…………………...52
Appearance to Defend ……………………………………………..52
Plaintiff's Declaration (if not already filed)……………………….52
Defendant's Plea……………………………………………………53
Plea on Merits ……………………………………………………..53
Special Plea …………………………………………………………53
Defendant's Claim in Reconvention ………………………………54
Plaintiff's Replication …………………………………………........55
Subsequent Pleadings ……………………………………………….55
Closure of Pleadings ………………………………………………..55
Application for Directions ………………………………………….56
Discovery ……………………………………………………………56
Pre-trial Conference ……………………………………………….58
Set Down ……………………………………………………………60
Trial …………………………………………………………………61
7.
OTHER COMMON PROCEDURE ARISING DURING CONTESTED ACTIONS….62
Procedure for Barring …………………………………………….62
Requests for Further Particulars ………………………………...63
Applications to Strike Out ………………………………………...65
Exceptions …………………………………………………………66
Payment into Court………………………………………………..67
Application for Summary Judgment …………………………….68
Application for Dismissal of Action ………………………………71
Amendment of Pleadings…………………………………………..72
8.
PROCEEDINGS BY WAY OF APPLICATION………………………………..74
On Notice or Ex Parte ………………………………………………74
Court Application or Chamber Application ………………………74
Procedure for Court Applications…………………………………76
Procedure for Chamber Applications ……………………………..77
9.
MISCELLANEOUS PROCEDURES:……………………………………………79
Provisional Sentence…………………………………………………79
Interpleader…………………………………………………………..81
Arrest of Defendant…………………………………………………82
In Forma Pauperis……………………………………………………84
Review…………………………………………………………………84
10. COSTS………………………………………………………………………………...86
General ……………………………………………………………….86
Security for costs …………………………………………………….87
Taxation of Costs …………………………………………………….88
11. EXECUTION/ENFORCEMENT
………………………………………………..89
Writ of Execution…………………………………………………….89
Garnishee……………………………………………………………..90
Civil Imprisonment…………………………………………………..91
Contempt of Court…………………………………………………...92
12. APPEALS…………………………………………………………………………….93
Procedure for noting and prosecuting of appeals from the Magistrates Court…93
Execution of Judgement pending Appeal…………………………..93
IV.
THE PROCEDURE OF THE SUPREME COURT…94
NOTING AND PROSECUTING OF APPEALS FROM THE HIGH COURT……….....94
CONSTITUTIONAL COURT………………………………………………………………
ANNEX 1 - Practice Note 1 of 2013
THE PROCEDURE OF THE MAGISTRATES COURT
JURISDICTION AND THE LIMITS THEREOF
JURISDICTION
Every Magistrates Court has jurisdiction at general or customary law in terms of s11 (1) of the
Magistrates Court Act [Chapter 7:10] to hear civil matters.
In civil cases magistrates courts have jurisdiction in the following circumstances:
(a) Persons: s11(1) (a)
(i)
Any person residing, carrying on business or employed within the province.
(ii)
Any partnership with business premises or any member whereof resides within the province.
(iii)
Any person in respect of any proceedings incidental to any action/proceedings instituted
within the Court by such person i.e. by bringing an action before the Magistrates Court the
plaintiff would have submitted to the jurisdiction of the Magistrates Court.
(iv)
Any person, regardless of where he resides/carries on business/employed, if the cause of
action arose wholly within the province.
(b) Causes of Action: s11 (1) (b)
(i)
Liquid claims in the amount prescribed by the rules together with interest thereon, (See also
s11(1)(g) on interest + costs)($10 000 maximum value)
(ii)
Delivery/transfer/cancellation of agreement for any property where value is in the amount
prescribed by the rules ($10 000 maximum value)
(iii)
Ejectment, unless the right to occupation exceeds the value prescribed by the rules ($10 000
maximum value)
(iv)
Matrimonial or maintenance matters in terms of the Customary Marriages Act [Chapter 5:07]
or Matrimonial Causes Act [Chapter 5:13] ($10 000 maximum value)
(v)
Guardianship and custody in terms of the Customary Marriages Act (customary marriage)
(vi)
Validity, effect or interpretation of oral wills in terms of the Wills Act [Chapter 6:06]– subject
to S14(2) of the Magistrates Court Act
(vii)
In all other cases apart from the above where the amount/value does not exceed the prescribed
amount. Provided that a court shall have jurisdiction to try any action or case referred to in (i),
(ii), (iii) or (vi) above otherwise beyond its jurisdiction if the defendant has consented thereto
in writing.
(c)
Except for actions in terms of s14, where parties have agreed the Court should have
jurisdiction.
(d)
If two claims are combined but each would have been within the jurisdiction.
(e)
Claim for confirmation of an interdict or arrest granted pendente lite is joined in summons for
any other relief *see also s12 re: tamquam, spoliation, attachments and interdicts the court has
jurisdiction to order these ($10 000 maximum value)
(f)
Where the claim is for the balance of an account and is within the jurisdiction even though the
whole account may have exceeded the jurisdictional limit.
(g)
Where findings on a matter beyond the jurisdiction are necessary, the Court’s jurisdiction is
not otherwise ousted were the amount/relief claimed is not within the jurisdiction. Interest on
capital, costs or alternative relief should not be considered in deciding whether the claim is
within the jurisdiction.
(h)
Plaintiff may abandon explicitly a part of his claim to bring it within the jurisdiction.
(i)
Plaintiff may deduct what he admits to owing Defendant to bring his claim within
jurisdiction.
(j)
Splitting of a claim to bring it within the jurisdiction is not permitted.
(k)
A court having jurisdiction in respect of the person shall have jurisdiction where the person
owes a debt in terms of the Income Act [Chapter 23:06] or Debt Adjustment Tax Act 5/1965
irrespective of the value of the amount due.
N.B-Section 13 of the Magistrates Court Act on attachment to found or confirm jurisdiction against
Non-Zimbabwe resident as long as the claim is within the jurisdiction (maximum value $10 000).
Limits to Jurisdiction
A Magistrates Court cannot hear civil cases if the amount or the value of the thing claimed is more
than $10 000. (See SI 163/2012
In terms of Section 14 of the Magistrates Court Act a Magistrates Court shall have no jurisdiction to
deal with cases wherein is sought:
(a) (i) Dissolution of a marriage other than registered customary marriage.
(ii) Judicial separation and proprietary order in matrimonial matters unless they are in
respect of registered customary marriages.
(iii) Declaration of nullity of marriage other than a registered customary marriage.
(b) The validity of interpretation of a written will or other testamentary document.
(c) To determine the status of a person with respect to mental capacity.
(d) Specific performance without the alternative of damages except:
(i) To order the rendering of an account where the claim is within the jurisdiction
($10 000 maximum value)
(ii) To order the delivery/transfer of property whose value is within the rules ($10
000 maximum value)
(e) A decree of perpetual silence.
(f) rovisional sentence.
(g) A declaratory order as to any existing, future or contingent right or obligation where there is
no consequential relief. Except
(i) To make a declaratory order as to the fact of a marriage in adultery damages
claim or value of necessaries supplied to the wife.
(ii) To make a declaratory order as to affiliation in suit to recover maintenance
lawfully supplied to a child.
(iii) To make a declaratory order as to the fact of marriage/affiliation in an enquiry in
terms of the Maintenance Act [Chapter 5:09]
* As long as these declarations will not bind present or future rights.
The court also has no jurisdiction to determine the validity, effect or interpretation of an oral will
made in terms of section 11 of the Wills Act [Chapter 6:06], unless—
(i) Testator normally resident in province when he made the will/died
(ii) Testator born within the province.
(iii) Majority (by number/value) of beneficiaries normally resident within the
province at Testator’s death.
(iv) Will made within the province.
(v) Immovable property disposed by will situated within the province.
*
Province also refers to regional division.
It should be noted that in terms of section 15, where counterclaim exceeds jurisdiction Court can stay
proceedings to enable competent Court to be appraised of matter. Failure to file counterclaim in
competent court can lead to further stay or dismissal of application. Failure to further file
counterclaim, or if Defendant’s counteraction is stayed, dismissed/withdrawn, abandoned or
absolution has been granted in competent Court this leads to dismissal of counterclaim upon
application.
ISSUING AND SERVICE OF DOCUMENTS
Parties in civil cases have to file their pleadings and notices with the clerk of court. For instance after
a party has completed a summons they are issued through the clerk of court. Issuing involves the clerk
checking whether the proper revenue for the summons has been paid, allocation of case number and
the clerk signs and puts the official stamp.
Some pleadings, orders and warrants must be issued by the court before they can be served.
Documents which must be issued by the court are process of court and can only be served by a court
official. Documents like summons, summons for civil imprisonment, a warrant of execution, a
garnishee order, a warrant for civil imprisonment and an interdict must be issued by the court official.
After such documents are filed with the clerk of court, the court official accepting must stamp them
and must sign them on behalf of the clerk of court. This is what is called issuing. In terms of Order 3
r2 (a) of the Magistrates Court (civil) Rules1 It is the duty of the clerk of the court to issue all such
process of the court as may be sued out by any person entitled thereto.
Service of Process
Service of process is dealt with in Order 7 of the Rules.
Process is defined in terms of this Order as “any document which is required to be served on any
person in terms of these rules”.
The Order applies to the service of all process within Zimbabwe except to the extent that it is
inconsistent with any other provision of the rules relating to the service of any particular process; or
any order or direction which the court may give in relation to the service of any particular process.
Order 7 R2.
Service of a summons, warrant or order of court shall be effected by the messenger of court and any
process, other than a summons, warrant or order of court, may be effected by the messenger of court
or by the party concerned or his legal practitioner or agent. O7 R3(1)&(2).
A party who requires the messenger of court to serve any process shall deliver to him a copy
of the process, together with as many further copies as there are persons to be served. O7 R3(3).
Service of process shall be invalid if served between 10 pm and 6 am nd except for process for the
arrest of any person; and process served by post, telegraph, telefacsimile or courier which shall be
valid whenever it is served. O7 R3(4).
The manner of service for process in relation to a claim for an order affecting the liberty of a person
is that it shall be served by delivery of a copy thereof to that person personally. O7 R5(1).
All other process are served in the ways set out in O7 R5 (2) that is by personal delivery to that person
or to his duly authorized agent; by delivery to a responsible person at the residence or place of
business or employment of the person on whom service is to be effected or at his chosen address for
service or by delivery to that person’s legal practitioner of record.
1
Hereinafter referred to as the Rules
With juristic persons service is done in the following ways: on a body corporate by delivery to a
responsible person at the body corporate’s place of business or registered office, if that is not possible,
by delivery to a director or to the secretary or public officer of the body corporate;
On a partnership by delivery to a responsible person at the partnership’s office or place of business,
and if it is not possible by delivery to any of the partners;
on a syndicate, club, society, church or other unincorporated association by delivery to a responsible
person at the local office or place of business of the association; or if it is not possible, by delivery to
the chairman or secretary or similar officer of the association.
If service cannot be effected because the address for service is being kept closed and if the person to
be served cannot be found after a diligent search it shall be sufficient service to leave a copy of the
process in a letter-box at or affixed to or near the outer or principal door of, or in some other
conspicuous position at, the residence, place of business or employment, address for service or office,
as the case may be. O7 R6.
If a person deliberately resists service, the Messenger of Court is entitled to seek the assistance of a
police officer and the police officer is obliged to assist. Order 2 R2. See Commissioner of Police v
Rensford 1984 (1) ZLR 202 (S).
Order 7 R7 provides for service on two or more persons. Each person must be served, except in
respect of married persons who are not separated under an order of judicial separation, when service
of process relating to property jointly owned or jointly held by them may be effected on either spouse;
and in respect of joint trustees of an insolvent estate, liquidators of a company, executors, curators or
guardians, when service may be effected upon any one of them.
Order 7 R7A is on service by registered post and O7 R 7B is on service of process for ejectment or
payment of rent is sought.
In terms of O7 R7C service can be proven as follows: service by the messenger by return of service or
by endorsement on the process; by a legal practitioner or a responsible person in his employ by a
certificate of service (Form No. CIV 6A); service by any person proof is by affidavit; and in case of
service by post, by signed acknowledgement of receipt.
Order 7A sets out special rules on service on the State.
If service cannot be effected in the manner prescribed by the Rules, a person has to apply for
substituted service. The application is made to the court and the court will authorise service in some
other way. See O7 R8.
SUMMARY PROCEDURES
In the Magistrates Court all claims must be brought by way of action/summons procedure unless an
Act specifies the use of an application. A summons calls upon the defendant to enter appearance to
defend within a stated period of time. Details required in a summons, issuing and service of such is
dealt with in Order 8 of the Rules. After the summons has been served on defendant there are special
procedures which may arise. These summary procedures are steps taken to curtail proceedings so that
a matter is finalised sooner. These will be dealt with respectively.
DEFAULT JUDGMENT [ORDER 11]
In terms of O1 R5(1), a default judgment is defined as “a judgment given in the absence of the party
against whom it is made.”
It is available where the defendant, after service of summons has neither consented to judgment nor
entered appearance to defend within the prescribed time. In such case, plaintiff may lodge with the
Clerk of Court a written request for judgment to be entered against the defendant with costs. O11R2.
It is not necessary to serve a copy of the request on the defendant.
Default judgment request shall be for any sum claimed (not exceeding amount stated in summons), or
other relief, together with interest and costs. Interest will be at rate claimed in the summons or at the
rate in terms of the Prescribed Rate of Interest Act [Chapter 8:10].
O11R3 Where a Defendant has entered appearance but has failed to deliver a plea in terms of O16,
default judgment may be applied for, after delivery of due notice to so file his plea, in the same
manner as in R2.
O11R4 Judgment shall be entered by the Clerk of Court where R2 and R3 are satisfied.
Exceptions
1.
R4(2) where a defective appearance to defend has been entered, the Clerk of Court shall
require the Plaintiff to serve 48 hour notice on Defendant to rectify the error (which must be
clearly pointed out) before any default judgment can be granted.
2.
R4(4) where service of summons has been by post default judgment cannot be entered unless
the postmaster’s certificate is filed together with the Messenger of Court’s returns that the
letter was duly delivered.
3.
R4(5)(6)(7)(8) The Clerk of Court must refer to the court or magistrate any request for default
judgment for
(a)
damages – proof of damages
(b)
Hire Purchase Agreement governed by Hire Purchases Act [Chapter 14:09].
(c)
Liquid Document – the original of which must be filed of record, or affidavit sworn
to explain why it cannot be filed. A liquid document is a document which creates an
obligation to pay money on the face of it and signed by the debtor or deemed to be
acknowledged. The amount owing must appear ex-facie the document. Examples
include a cheque, written acknowledgement of debt and a mortgage bond.
(d)
Any other request, in which case the Magistrate may refuse judgment, enter judgment
on satisfactory proof, call upon Plaintiff to produce written/oral evidence to support
his claim.
(e)
Or make any order as he thinks fit.
Several Defendants
In terms of O11R4(9) Plaintiff can request judgment against defaulting Defendant without prejudice
to his claim against the other Defendants.
CONSENT TO JUDGMENT [Order 11]
Upon service of summons or even before, the defendant may choose to consent to judgment and the
consent is in writing and it indicates that the defendant is consenting to judgment and also whether the
consent is for the full amount claimed by the plaintiff or less.
O11R1
1.
A Defendant may consent to judgment by delivering a written memorandum stating his
consent and for what amount.
2.
Where the consent is consequent upon a letter of demand or before Messenger of Court has
received instructions for service, it shall not be necessary to serve summons and no costs of
service are chargeable against him.
3.
Consent before expiration of time for appearance absolves Defendant of judgment charges.
4.
Where the consent is for portion of claim, then he may enter appearance for balance and the
matter may continue for that balance notwithstanding judgment upon such consent.
O11R4
(1)(a) Judgment by consent shall be entered by the Clerk of Court in terms of the consent except that
(7)
In case a liquid document requires the original liquid document or affidavit before
judgment can be entered.
(8)
Where a Clerk of Court has referred the matter to a Magistrate
a) The Magistrate may require the Plaintiff to provide evidence that the consent has
been signed by Defendant and it is for the judgment sought,
b) Enter judgment
c) Refuse judgment
d) Make such order as he thinks fit.
(9)
When one of several Defendants has consented to judgment, then Judgment may be entered
against him without prejudice to plaintiff’s claim against the others.
After judgment has been entered for the plaintiff, he may enforce the judgment.
PAYMENT INTO COURT [Order 13]
Order 13 gives the rules on payment into court.
Basically there are two types of payment into court that is, in terms of R1 and R2.
R1 Defendant may at any time pay into Court unconditionally the amount on the summons and
process stops, except for recovery of costs not included in the payment.
The payment must specify the causes of action otherwise it must be disregarded. No consensus is
required- see Brookmee v Rhodesia Railways 1956 R & N 51 ; 1956 (2) SA 562 (SR) and Santam
Insurance Company v Liebenberg NO and Anor 1976 (4) SA 312 (W).
R2 Defendant may without prejudice make an offer of settlement and pay it into court, which
Plaintiff may, within seven days of notice of such payment, request delivery of same and further
proceedings will be stayed, save for the recovery of costs not included in the payment.
If Plaintiff refuses tender, but is unable to prove the amount, he is still entitled to the full amount of
tender. See Union Government v Maile 1943 AD 3.
R3 provides that payment in terms of R1 and R2 shall be on notice delivered to Plaintiff setting out
the amount, stating whether its in terms of R1 or R2, and if it is under R2, stating whether it includes
both the claim and costs.
R4
Clerk of Court shall pay out to Plaintiff monies paid into Court under R1 and R2, except that
under R2, the plaintiff has to request the money first.
R5
Plaintiff entitled to recover costs up to date of payment into Court except where under R2, the
payment included costs.
R6.
Where Plaintiff is unable to prove that he is entitled to more money than was offered under
R2, the Court shall first:
(a)
Order payment of what is due to him less any order for Defendant’s costs, and
(b)
Give judgment for Defendant for costs incurred after payment into Court, and
(c)
Make any order it thinks just for costs prior to payment into Court.
See Klein v Johannesburg City Council 1948 (3) SA 296 (A).
R7 If pleading tender, Defendant shall pay into court upon filing pleas, if he’d not already paid to
Plaintiff.
R8 Unless in terms of R4, money will be paid out only upon granting of judgment or consent of
parties.
R9 In a claim for damages/compensation, the amount of tender/payment into Court shall not be
disclosed to the Court or in pleadings until the judgment, and an order for costs will only be made
after disclosure of tender/payment and R6 shall apply.
See Vadivelu v South British Insurance Co. Ltd 1957 (2) SA 443.
R10 If a year passes before payment has been made in terms of R2 or R7, then unless the matter has
been set down for trial, the Clerk of Court shall refund the Defendant his money and if he is not
found, shall pay it into the guardian’s fund.
NOTE: Difference with Consent to judgment – no judgment.
EXCEPTION TO SUMMONS [Order 14]
An exception is a technical objection and it can be raised by defendant objecting to plaintiff’s claims
in the summons and particulars of claim if any. With an exception whatever is being complained of
must appear ex-facie the document i.e. the summons or particulars of claim. See A.Lane v Eagle
Holdings (Pvt) Ltd SC 126/85.
Defendant may except to the summons within 7 days of entering an appearance to defend by filing the
particulars of the exception with the court and serving it on the plaintiff. A defendant failing to deliver
particulars of exception within the prescribed period cannot thereafter raise the exception without
leave of the court.
Grounds of Exception to a Summons
(1)
(2)
(3)
(4)
(5)
It does not disclose a cause of action. O14R2(a). A summons may fail
to disclose a cause of action in two ways: (a) it raises a cause of action which is illegal and
unenforceable at law. (b) It omits an essential element of the cause of action.
It is vague and embarrassing. O14R2(b). This means that from reading
it the defendant does not know exactly what the plaintiff is claiming and therefore not able to
respond to it.
It does not comply with the requirements of Order 8 (Summons).
O14R2(c).
It has not been properly served. O14R2(d).
That the copy served upon the defendant differs materially from the
original. O14R2(e).
Procedure for raising an Exception
The court does not uphold an exception unless it is satisfied that there would be prejudice to the
defendant. O14R5(1).
Where non-compliance is the basis of the exception, the excipient must first of all give notice
indicating in what ways the summons is not in compliance. O14R2(5).
With an exception that the summons is vague and embarrassing, prior to taking the exception the
excipient give notice giving the plaintiff an opportunity to remove the cause of the complaint.
O14R5(3).
When the court is faced with an exception it can set-down the matter in a special way in terms of
O16R9. The court can decide to uphold the exception. Plaintiff can make an application to amend so
that the summons is no longer defective. If the application to amend is granted then the matter will
proceed on the basis of the amended summons. If the application to amend is dismissed or there is no
application to amend the court can dismiss the claim on application by the defendant. O14R8.
SPECIAL PLEAS [Order 16]
A plea which raises a (special) technical defence to the plaintiff’s claim. Technical in the sense that it
is not a defence on the merits.
There are two types of SPECIAL PLEAS
(i) Dilatory Plea/ Plea in abatement – meant to delay proceedings until some temporary bar to the
claim has been removed. Examples in lack of locus standi in judicio, lis alibi pendens. Melvin
v Eblen 1948 (1) SA 550 (W)- no locus standi-plea in bar
(ii)
Declinatory Plea/ Plea in bar – meant to quash proceedings e.g. lack of
jurisdiction, prescription, res judicata (see Flood v Taylor 1978 RLR 230 – res judicata).
Procedure
The special plea is raised in the same way as for the ordinary plea. O16. The only difference is that
the special plea can be set down for hearing on 7 days’ notice.
If the court upholds the special plea that will be the end or action stayed until defect is rectified. If not
upheld the defendant will have to plead on the merits and it will proceed as if there was no special
plea.
There are certain pleas worth noting:
1.
Plea of Tender O16 R5
Subject to Order 13
a.
Plea to specify items of Plaintiff’s claim to which the tender relates.
b.
Payment into Court must be made on delivery of plea, if not already paid to Plaintiff
for the plea to be admissible.
c.
Will be paid out to Plaintiff upon the Court’s order or consent of both parties.
d.
Shall imply an undertaking to pay costs to date of tender unless specifically
disavowed.
e.
Be valid without a tender/payment into Court of the amount at which costs may be
taxed.
*Tender must be coupled with an admission of liability. See Bloch v Cohen 1933 TPD 1000
*If plaintiff refuses to tender and fails to establish his claim for even the amount tendered, he is
entitled to judgment for the full amount tendered but would have to bear all the costs from the date of
the tender. Tender to be accompanied by payment into Court to be valid. see Van Greens v Brand
1918 CPD 440
2.
Plea of Payment into Court O16 R6
Particulars of payment into court shall show whether it was in terms of O13 R1 or R2, or O16 R5. If
it is not so specified, it shall be presumed to be by way of tender after action is brought.
SUMMARY JUDGMENT [Order 15]
Is a procedure that enables the plaintiff to obtain judgment without going to trial where the
defendant’s defence to the claim has no merits.
Justification or purpose was explained in Chrismar v Stutchbury and Anor 1973 (1) RLR (GD)
277 @ 279D.
It is available to both the plaintiff and the plaintiff in reconvention i.e. a defendant who has raised a
counterclaim. O15R1(1).
It is only available in respect of particular types of claims as set out in O15R1(1) (a)-(e). These are
claims (a) on a liquid document; or
(b) for a liquidated amount in money; or
(c) for the delivery of specified movable property; or
(d) for ejectment; or
(e) for a combination of any of these.
Procedure
Summary judgment must be applied for within 7 days of the date of defendant’s appearance to defend.
O15R1 (2). NOTE O9R1.
If the claim is illiquid, there should be a copy of an affidavit verifying the cause of action and the
amount claimed, the deponent must also state that in his belief there is not a bona fide defence to the
action and that appearance has been entered solely for the purpose of delay; and if the claim is liquid,
there must be a copy of the liquid document on which the claim is founded. O15R1(2) (a).
The affidavit is sworn to by the plaintiff himself or any other person who can swear positively to the
facts. The deponent is allowed in the affidavit to elaborate on why they believe the defendant has no
bona fide defence to the claim. They are allowed to annex to the affidavit any document which proves
that the defendant has no bona fide defence. See Beresford Land Plan (Pvt) Ltd v Urquhart 1975
(1) RLR 260.
The options available to the defendant are in terms of O15R2(1). The defendant may (a) pay into
court to abide the result of the action the sum sued for, together with such sum for costs as the court
may determine; or (b) give security to satisfy any judgment which may be given against him in the
action; or (c) satisfy the court by affidavit then filed, which may be supported by viva voce evidence
or otherwise, that he has a good prima facie defence to the action.
At the hearing of an application for summary judgment evidence adduced by the plaintiff by way of
affidavit of which a copy was delivered with the notice; or production without evidence of the liquid
document sued upon; and the plaintiff may not cross - examine any witness called by the defendant,
but any such witness may be questioned by the court and re - examined by the defendant. O15R2(2).
Subject to the provisions of Order 14, if the defendant does not so pay into court, find security or
satisfy the court as provided in sub rule (1) of rule 2, the court may enter summary judgment for the
plaintiff.
If the defendant does pay into court, find security or satisfy the court that he has a good prima facie
case, the court shall give leave to defend, and the action shall proceed as if no application had been
made. O15R3 (2).
If judgment is granted for the plaintiff, he may then enforce it and if summary judgment is refused,
defendant must deliver his plea within 7 days of the dismissal of the action if he wishes to pursue the
matter further.
COMMENT Please also consider applications to strike out per order 14 Rule 6
EXCEPTION TO PLEA [Order 16]
The grounds of exception to a plea are set out in O16R11. These are:
(a) that it does not disclose a defence to the plaintiff’s claim;
(b) that it is vague and embarrassing;
(c) that it does not comply with the requirements of Order 16.
In terms of O16R10 a plaintiff may, within seven days of the delivery of the plea or further particulars
and with or before delivering a reply, deliver particulars of an exception to the plea.
O16R15 provides that an exception to a plea may be set down for hearing by either party on seven
days’ notice.
The court shall not uphold any exception to a plea unless it is satisfied that the plaintiff would be
prejudiced in the conduct of his case if the plea were allowed.
A plaintiff raising an exception that the plea does not comply with the requirements of Order 16 shall
set out particulars of the alleged non- compliance. The court shall not uphold an exception that the
plea is vague and embarrassing unless the plaintiff has, prior to taking exception, by delivery of a
notice given the defendant an opportunity of removing the cause of the complaint. O16R12 (2) & (3).
See Guide to civil procedure in the Magistrates court on service of notice of exception page 40-41.
PRE-TRIAL PROCEDURES
REQUEST FOR FURTHER PARTICULARS TO SUMMONS [ORDER 12]
Further particulars are additional facts to a pleading which are intended to clarify the pleading so that
the party requiring them can adequately respond to it.
In terms of O12R4 “pleading” includes a summons, counter claim, plea, reply and the schedule of
documents prescribed by Order 18.
R2(1)(a) A Defendant may request further particulars on not more than 7 days’ notice delivered after
entry of appearance to defend, requesting the plaintiff to deliver such further information as is
reasonably necessary to enable him to plead.
R2(2) Plaintiff shall deliver the required information within 7 days of receipt of notice.
* Failure to do so = application to compel further particulars.
NOTE: 1.If the further particulars are in conflict with the summons or set up a new cause of action,
then the summons can be excepted to as vague and embarrassing. Aginsky v Johnstone & Co. 1927
OPD 280
Once further particulars are requested, they must be supplied as long as they are reasonably necessary
to enable one to plead, regardless of who has the onus of proof, and if plaintiff is unable to supply
them, he must give reasons. Van v Botha 1952 (3) SA 494 (0)
Time Security P/L v Castle Hotel P/L 1972 (1) RLR 155 (A); 1972 (3) SA 112 (RA)
If the further particulars are not supplied and defendant pleads without them, then, he has waived any
right to an order compelling further particulars. Brollomer Tin Exploration v Kameel Tin Pty Co.
Ltd 1928 TPD 647
The purpose of further particulars is to place a defendant in the position of being able to decide
whether or not to persist in his defence and he is therefore entitled to the further particulars reasonably
necessary for him to make that decision. Time Security (supra)
The circumstances in which further particulars may be requested are that a defendant is entitled to a
copy or copies of the accounts or documents upon which the plaintiff’s claim is based. See Estate
Zagorie v Lategan 1945 CPD 360.
If the requested particulars are not necessary to enable the defendant to respond, the plaintiff may
decline to supply them.
PLEA [Order 16]
The plea is the defendant’s answer to the plaintiff’s declaration or particulars of claim.
This is a statement by the Defendant wherein he
(a)
admits , denies, confesses or avoids all the material facts alleged in the
summons, and
(b)
he sets out clearly and concisely the nature of his defence and all the
material facts on which it is based. O16R2.
R1 Plea must be delivered within 7 days after
a.
entry of appearance
b.
delivery of documents/particulars it Order 12 R1 or R2
c.
dismissal of summary judgment
d.
the making of an order giving leave to defend
e.
dismissal of exception or motion to strike out O14 R7
f.
any amendment of summons allowed by court at the hearing of an exception/motion
and must be signed and dated by a person specified in O4 (Representation of Parties).
However, where an appeal is noted against a decision in an exception, or upon a review, the plea
should be delivered within such time as a court direction.
NOTE: 1. Once admission is made it may not be withdrawn unless the Court is satisfied that it was
made through a bona fide mistake, and the prejudice to Plaintiff may be compensated by
postponement or order for costs. See Bulk Freight Services P/L v Ministry of Defence S-124-91
* See Rule 7
2.
Nor is defendant permitted to make a bare denial. Neugebauer & Co. Ltd v Bodiker
1925 AD 316
3.
Defendant’s plea must be such that Plaintiff is given sufficient details to enable him
to appreciate the true nature of the defence. Van Zyl v Barclays Bank 1933 OPD 23
R3 Where summons is served on the wrong person, that person must plead though he were the correct
defendant, and raise in his plea the defence that he is incorrectly cited.
The matter of costs will follow the result, but the Court may allow, upon application by Plaintiff, the
summons to be amended and order it to be served on the correct Defendant.
R4 It is a bare denial if Defendant denies liability without reference to the facts he bases that
conclusion. Britz v Weidman 1946 OPD 144.
Defendant must deny specifically any of the allegations in the summons either as a sole defence or in
combination with any other consistent defence.
R7 Every allegation by Plaintiff, which is inconsistent with plea, is presumed to be denied. The
converse is also true. DD Transport P/L v Abbot 1988 (2) ZLR 92(S)
The effect of an admission is that it can’t be withdrawn unless granted by the Court on reasonable
explanation. It must also be bona fide. Therefore the party making an admission cannot lead
evidence to counteract it, and the other party does not have to prove it.
R8 New defence emerging during trial: the court may allow the amendment of a plea to include that
defendant through oral submissions on such terms as to the postponement and costs as the Court shall
think fit. Luxury Stores v Shamva Service Station 11983 P/L SC-122-88
R9 Any defence which can be adjudicated upon without the necessity of going into the main case may
be set down by either party on 7 days’ notice.
FURTHER PARTICULARS TO PLEA [Order 12]
R2(1)(b). A Plaintiff may, on not more than 7 days’ notice after delivery of plea request further
particulars thereto.

The purpose of which to enable him to decide whether or not to persist with his
claim.
Time Security (supra)

Reasons for refusing/failing to supply particulars must be given
Van Biljon (supra)

See note 2 and 3 under further particulars to summons

The difference between further particulars to summons and further particulars to
plea is that an additional defence can be raised in the further particulars to plea,
whereas further particulars to summons will be excipiable if they raise new or
further causes of action.
See also A Guide to Civil Procedure in the Magistrates Court (supra) page 38-39.
REPLY [Order 17]
R1Where the defence raised in the plea is other than a bare denial, the Plaintiff may within 7 days of
delivery of plea, or delivery of further particulars in terms of O12 R2, deliver a statement replying to
Defendant’s plea.
R2 O16 shall apply to a reply in so far as the rules to a plea are concerned.
R3 Should plaintiff fail to reply, he is deemed to have denied any allegation of fact in the plea.
There is no need to reply if a plea is a bare denial but a reply will be necessary where new facts are set
out in the plea e.g. if it is a plea of confession and avoidance.
Upon delivery of the reply pleadings are closed and there is joinder of issues i.e. no further issues
shall be raised at trial.
CLOSURE OF PLEADINGS [Order 17 R4]
Pleadings are closed upon receipt of reply, or upon the expiration of the time limited for a reply.
Thereafter no further pleadings may be filed.
Contrast with Order 16 R 107 HC Rules.
The effect of closure of pleadings
The parties will not be allowed to proceed to discovery before the closure of pleadings.
Equally the parties will not be allowed to proceed to pre-trial conference before closure of pleadings.
The parties will also not be allowed to proceed to set down before closure of proceedings.
The claim can be transmitted to heirs of plaintiff if he dies after closure of proceedings, personal
claims cannot however be transmitted.
The parties’ rights are regarded as frozen.
DISCOVERY OF DOCUMENTS [Order 18]
The purpose is to enable each party in the litigation to find out or to discover what documents relating
to the matter in issue are in the control of opponents. This is done to prevent surprise at trial.
Discovery is compulsory in the Magistrates Court. It is always good practice for party to ask for
discovery.
R1(1) Upon closure of pleadings, either party may, on notice, request the other, to deliver a schedule
of books/documents in his possession/control which he intends to use, or which tend to prove or
disprove either party’s case.
R1(2) The schedule must be delivered within 7 days of notice.
R1(3) Privileged documents shall be separately listed and the grounds thereof specified. There are two
common types of privilege that affect discovery i.e. legal professional privilege (see Kerwin v Jones
1957 R&N 668) and state privilege (see Association of Rhodesian Industries v Brookes & Anor
1972 (2) SA 680.
R1(4) Undiscovered documents may not be used by the party who failed to discover them without
leave of the Court, but the other party can call for and use them in cross-examining witness.
R2 Each party shall allow inspection and copying of documents disclosed in terms of R1 or R3, or on
pre-payment therefore, supply copies thereof.
R3 Either party may, by notice, require the other to produce at the trial the books/documents disclosed
and this notice shall have the effect of a subpoena under Order 24.
Contrast 12 R1(1) – application to be supplied with documents in order to decide whether to defend a
claim.
Failure to comply with a notice of discovery will entitle the requesting party to resort to the procedure
set out in Order33R1,2,3 i.e. seek a court order compelling discovery and the court may order as
such.
PRE-TRIAL CONFERENCE [Order 19]
It is held after closure of pleadings.
R1(1) Party wishing the matter brought to trial shall request the other to attend pre-trial at a mutually
convenient time and date.
R(2) *Purpose of pretrial is to expedite and curtail the duration of trial by agreeing if possible on
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
admissions of fact and documents
inspections and examinations
exchange of expert’s reports
discovery
further particulars for trial
plans or diagrams, models, photo etc. To be used at the trial
consolidation of trials
quantum of damages
definition of real issues and manner of proving same
duration of trial
bundle of documents
settlement of all or any issues
R(3) Pre-trial, if parties agree to R1 shall be before Magistrate in chambers at a date and time fixed by
the Clerk of Court in consultation with both parties.
R(4) Clerk of Court on instruction from Magistrate may, on reasonable notice, ask parties to appear
before Magistrate at a date and time in the notice for pre-trial with objective of agreeing or settling
matters in sub rule 2. Magistrate may at the same time give directions as to who should attend,
documents to be furnished / exchanged.
R(5)
Notice in terms of sub rule 4 does away with requirements of Pre-Trial in terms of sub rule 1.
R(6) A party may apply for directions should the parties fail to agree to pre-trial in terms of R(1) or(3)
or on who should attend, when and where.
R(7)(8)(9)- At conclusion, Pre-trial without a Magistrate in terms of R1(1), the parties to draw up
minutes to be signed by both, and if there’s no agreement, one party may request for directions, and if
the parties are agreed, then they can apply to Magistrate to make an order in terms of that agreement.
R(10) Pre-trial before Magistrate
a.
He shall record decisions taken and agreement reached
b.
He may give directions on any issue in terms of R1(2) not agreed upon,
c.
He may make any order limiting the issues for trial to those not agreed to
d.
He shall record a refusal by any party to make an admission/reach agreement and
reason therefore.
R(11) Failure to comply with Magistrate’s directions in terms of sub rules (4), (6), (8), (10) or notice
in terms of sub rule (4) may lead Court, on application , to dismiss claim, strike out defence or make
any other order as may be appropriate.
REQUEST FOR FURTHER PARTICULRS FOR PURPOSES OF TRIAL [Order 12]
R3 These are further particulars for purposes of trial, must be reasonably required and are requested
on notice, and must be supplied as soon as reasonably possible.
No time limits for the notice or the supply
*See also R143 HCR
The purpose of these further particulars is
(a)
(b)
to limit the generality of the allegations in the pleadings
to define the issues more precisely
Motaung v Federated Employers Insurance Co. Ltd 1980(4) SA 274 (W).
The function of these further particulars is to fill in the picture of the Plaintiff’s cause of action, or
defendant’s defence, with information sufficiently detailed to put either party on his guard and to
enable him to prepare for trial As held in case belowSamuels & Anor v William Dunn & Co. SA
P/L 1949 (1) SA 1149 (T)
Motaung (supra)
See Guide (supra) on the consequences of a failure to supply.
Further Particulars to any Pleadings
R2(1)(b),(c) R4: Any other pleadings are defined as:
Counterclaim, reply, schedule of documents in terms of Order 18, judgment on exception in addition
to summons and plea. The purpose, manner of obtaining them and function are as already described.
Supply of copies of Documents and Inspection of Originals
R1(1) At any time before delivery of plea, a Defendant (in convention/reconvention) may by notice,
apply to be supplied with copies of all or any of the accounts or documents upon which the claim is
founded and Plaintiff shall supply same within 7 days of receipt of notice.
*A Plaintiff is not required to supply documents merely incidental or collateral to the action.
Late Estate Zagorie v Lategan 1945 CPD 360
R1(2): The Plaintiff shall, on notice, forthwith allow Defendant to inspect the originals of such
accounts or documents.
*This is different from the provisions of Order 18 in that here the intention is to accord Defendant
with such information as shall be reasonably necessary for him to plead.
TRIAL PROCEDURES Order 19
A trial is held before a Magistrate in a Magistrates Court. The parties are plaintiff and defendant. For
a matter to proceed to trial it must be set down.
SET DOWN
R2(1) Notice of Set Down shall be delivered by Plaintiff after Pre-trial for a day, approved by Clerk
of Court. On failure to do so within 14 days of Pre-trial, Defendant may do so.
(2) Effect of Set Down is to set down any counter claim. Notice of Set Down for trial shall be served
7 days before trial date.
(3)Set Down shall be for the Court where the summons was issued.
Presentation of Evidence
R4.Witness may be ordered to leave the Court until their evidence is required, or after evidence has
been given, or to remain in Court after giving evidence until trial is adjourned or terminated.
5. (1)Before hearing evidence, court may require the parties to state shortly the issues of fact and
questions of law, which are in dispute and record them.
(2)And where there are several issues of fact, but one of them may dispose of the rest, Court may
order that that issue be dealt with first and thereupon give final judgment.
(3) If the issue in dispute is one of law and the facts are agreed, then the facts may be admitted in
Court and judgment given thereupon without further evidence.
(4) Where both issues of fact and law are in dispute, but the Court decides that the case may be
disposed of by dealing with the question of law, it may require the parties to argue upon the question
of law only and give its decision before taking evidence on the facts, and given final judgment
without dealing with the facts if the decision on the issues of law warrant such a judgment
Order of Leading Evidence
The general principle is that he who alleges must prove. See Nyahondo v Hokonya 1997 (2) ZLR
475 (SC) .
R6(1) Plaintiff shall lead evidence first if he has onus, and if absolution is not granted, followed by
Defendant.
(2)If burden of proof with Defendant, he shall lead evidence first followed by Plaintiff.
(3)Where both parties have burden of proving some issues,
(a)
Plaintiff shall lead evidence first on those issues he must prove and
may close his case; where after Defendant shall call his evidence on all the issues
(b)
If Plaintiff has not called any evidence on those issues Defendant has
onus of proof, he shall do so after defendant has closed his case. But if he called his evidence
first, then he shall not have such right.
(4)The Court shall direct which party adduce evidence first in case of dispute.
(5)Either party, can, with leave of Court, adduce further evidence at any time before judgment, unless
the evidence was intentionally withheld out of its proper order.
*This is Court’s discretion, which must be exercised judicially and with fairness.
Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A)
(6)The court may at any time before judgment, on application or on its own motion, recall any witness
for further examination. See Colley v Marais 1964 SA 657????
(7)Any witness may be examined by the Court and by the parties.
(8)At close of case, either party may address the Court, starting with the party who adduced evidence
first, followed by the other, and the first party may reply.
R7 deals with interrogatories. These are specific written questions to a witness who cannot attend
court and their answers are recorded and produced as evidence.
JUDGEMENT
May be handed down immediately, orally, or a written judgment may be submitted at a later date.
Section 18 of the Magistrates Court Act provides that the judgments which a court may give are:
a)
judgment for the plaintiff in respect of his claim in so far as he has
proved the same;
b)
judgment for the defendant in respect of his defence in so far as he has
proved the same;
c)
absolution from the instance, if it appears to the court that the evidence
does not justify the court in giving judgment for either party;
d)
such judgment as to costs as may be just, including an order that one
party pay the costs of the other party on a legal practitioner and client basis.
The test to be applied where there is an order of absolution from the instance is to be found in the
case of Supreme Service Station 1969 Co Ltd v Fox & Goodridge 1971 (1) RLR 1 (A).
ENFORCEMENT OF JUDGMENT
The method depends on the type of judgment. There are generally two types of judgments 1) those
sounding in money and 2) orders to do or abstain from doing a particular act or to deliver a particular
thing.
The methods of enforcement are generally warrant/ writ of execution, garnishee order and civil
imprisonment.
WARRANT OF EXECUTION
It is a court process authorizing the Messenger of Court to attach and sell the debtor’s property as is
necessary to satisfy the judgment debt. Procedure is provided in Section 20-25 of the Magistrates
Court Act and Order 26 of the Rules.
Note – there is no warrant of execution against the State. See section 5 of the State Liabilities Act
[Chapter 8:14]. Also there is no execution against property listed in Section 25 of the Magistrates
Court Act.
In terms of Section 20(1) of the Act there should be no attachment of immovable property until the
movables are exhausted first.
Section 20(2) provides that no immovable property which is subject to any claim preferent to that of
the judgment creditor shall be sold in execution unless—
a)
the judgment creditor has caused such notice in writing of the intended
sale in execution to be served personally upon the preferent creditor as may be prescribed in
rules; or
b)
a magistrate of the regional division or, as the case may be, province in
which the property is situate has, upon the application of the judgment creditor and after
inquiry into the circumstances of the case, directed what steps shall be taken to bring the
intended sale to the notice of the preferent creditor, and those steps have been carried out;
and unless —
i.
the proceeds of the sale are sufficient to satisfy the claim of such
preferent creditor in full; or
ii.
the preferent creditor confirms the sale in writing, in which event he
shall be deemed to have agreed to accept such proceeds in full settlement of his claim
Also note the provisions of Sections 21,22 and 23 of the Act.
In terms of O26 no warrant of execution shall be issued before the day of the order without the leave
of the court applied for at the time of the granting of the judgment. This is done to give the judgment
debtor time to pay and is prescribed in Form CIV 29. It is directed to the Messenger of Court.
In terms of O26 R2(1) the Messenger may require security from the judgment creditor when he is in
doubt as to the validity of any attachment. Form CIV 34.
Security must be provided before sale in execution of the property which has been attached unless
summons was served on the defendant personally or where the defendant enter appearance to defend
or where notice of attachment was served on debtor personally. The execution debtor may by
endorsement to that effect on the writ of execution dispense with the giving of security.
The costs and expenses of issuing and levying execution by the Messenger shall be a first charge on
the proceeds of the property sold in execution. R3(1).
R3(2) Subject to any hypothec existing prior to attachment, all warrants of execution lodged with the
messenger on or before the day immediately preceding the date of the sale in execution shall, subject
to the provisions of subrule( 21) of rule 7, rank pro rata in the distribution of the proceeds of the goods
sold in execution.
R3(8) On completion of any sale in execution of property, whether movable or immovable, the
messenger shall attach to his return a statement showing details of the property sold, the prices
realised and the names and addresses of the purchasers; and a statement showing the distribution of
the proceeds of the sale and of any deposit paid to the messenger.
Procedures followed by the Messenger against movables are in Rules 4A,5 and 6. There is a notice of
intention to execute or notice of removal. The notice is served on the debtor, the Messenger shows
him the original and gives him a copy.
The Messenger will demand payment of the judgment debt and costs. If there is a partial or no
payment the Messenger will make an inventory of so much of the debtor’s property which he thinks
will be sufficient to satisfy the warrant. The Messenger is authorised to use force in entering premises.
Goods which are inventoried shall be deemed to be attached and the inventory together with a notice
of attachment shall be delivered to the debtor or left on the premises. The property attached may be
removed forthwith or may be left with the debtor with an indication as to when it will be removed.
The Messenger will organize a sale in execution. The sale must be advertised if the property exceeds
fifty dollars. A notice of the sale must be affixed to the door of the court house or other public
building in the place where the court is held; and at or as near as may be to the place where the sale is
actually to take place and such notice shall set out the day and place where such sale is to be held.
R5(13).
R5(15) Where the attached goods are of a perishable nature or the execution debtor consents, the court
may, on application, reduce either or both of the periods of notice to such extent and on such
conditions as it thinks just.
Note that the sale is by public auction to the highest bidder and shall be by the Messenger with the
approval of the Magistrate or with the auctioneer to the highest bidder or by any person appointed by
the Messenger.
In terms of R5(16) a sale in execution shall be stopped as soon as sufficient money has been raised to
satisfy the warrant and the costs of the sale.
If after a sale in execution of property, there remains any surplus with the messenger it shall be liable
to attachment for any other unsatisfied judgment debt; if there is no unsatisfied judgment debt, the
messenger shall pay such surplus to the judgment debtor if he can be found and, if he cannot be found,
into court. R5(10).
The procedure for execution against immovable is to found in R7.
The court has power to order a stay of execution on application by the judgment debtor on good cause
shown. See Cohen v Cohen 1979 RLR 184 (GD); 1979 (3) SA 420 (R)- irreparable harm or
prejudice must be established by applicant.
For a warrant of ejectment and execution of property Form CIV 27 applies as read with SI 289/1983.
The ejectment and the attachment can be done at the same time.
GARNISHEE ORDER
The procedure is governed by Section 33 of the Magistrates Court Act and Order 29 as amended
by SI 102/85. It is used to enforce judgment sounding in money where there is money due to the
creditor.
Procedure
A person makes an exparte application supported by an affidavit setting forth the details outlined in
R1(2) of Order 29. The application is lodged with the clerk of court whom will lay it before the
Magistrate, the Magistrate will grant a provisional order upon satisfaction. The Magistrate may
require the applicant to appear in open court, argue his/her case and thereafter the order may be
granted in part or in whole.
R(5) If in open court the judgment debtor admits sufficient of the facts to warrant an attachment being
granted, such admission shall be recorded and application for a garnishee order may be made orally
without an affidavit.
In terms of Section 33(2), the order shall be served on the garnishee and a copy thereof on the
judgment debtor by the messenger either personally or in such other manner as the court directs in the
same manner as a summons is directed to be served by any law or rule relating to the service of a
summons in civil proceedings, and the service of such order shall operate as an interdict restraining
the alienation of the debt by the garnishee except as directed in the order.
On the return day the garnishee gives any reason that he may have as to why the order should not be
confirmed e.g. the reason may be that the debt is not yet owing.
If the garnishee disputes his liability to pay the debt, or alleges that the debt sought to be attached is
subject to a set- off or belongs to or is subject to a lien by some other person, the court, shall, subject
to the limitations as to jurisdiction imposed in civil cases, proceed to hear and determine the question
of such liability or of the rights of such other person and may order such other person to appear and
state the nature and particulars of his claim to or upon the said debt. Section 33(4).
After hearing the garnishee or such other person and their witnesses or, in case of the non- appearance
after order of such other person, the court may order execution to issue against the garnishee and may
declare the claim of such other person to be barred, or may make such other order as to the court
seems proper, upon such terms in all cases with respect to any set-off, lien or charge of such other
person, and upon such terms with respect to costs, as the court thinks just and reasonable. Section
33(3).
If the garnishee does not appear on the return day while he has a good reason not to pay the creditor
the order will be confirmed in default and he will be required to make payment to the creditor
regardless of any other payment he may have made.
R3(1) The judgment debtor may appear on the return day and shall have a locus standi to oppose the
confirmation of the order, but only on the ground that —
(a)
the judgment had been satisfied otherwise than under the garnishee
order or was for some other reason not operative against him at the time when he received
notice of the garnishee application; or
(b)
the debt sought to be attached is for salary or wages and its attachment
will not leave him a sufficient amount to maintain himself and those dependent on him.
If the garnishee pays any money pursuant to the order of the court he shall pay it to the messenger
who shall retain the amount until the return day and shall thereafter deal with it in accordance with the
order made by the court. R4
Where a garnishee order has been made for the attachment of salary or wages to be earned in the
future and thereafter the judgment debtor ceases to be employed by the garnishee, the latter shall
immediately give notice to the judgment creditor or his legal practitioner. R6
Garnishee orders against the State are dealt with in R1(1a),(1b),(1c) & R2A. In terms of Section
33(8) in any case where the State is the garnishee, the order to be served shall be served where the
order relates to salary or wages of a person who is employed by the State and whose salary or wages
are paid by the Salary Service Bureau, upon the person in charge of the Salary Service Bureau in
Harare; in any other case, upon such person as may be prescribed in rules.
Before applying for an order against the State a notice of application has to be served in terms of
R1(1a). The notice must have sufficient information to identify the debtor. Once the notice is served,
the chief paymaster or director must give notice to the creditor that they have complied with the order.
A provisional order is then made. The provisional order and the final order must be served on the
officials on whom the application was served.
CIVIL IMPRISONMENT
SI 248/93 in conjuction with Order 28.
It is a Roman-Dutch method of enforcement. It is used to force the debtor who has the means to pay
but is unwilling to do so. There will therefore be no decree of civil imprisonment if the debtor satisfies
the court that he has no means to satisfy the debt either from present or future earnings. See Section
27 of the Magistrates Court Act.
The debtor will not be excused if he is willfully refusing to work or squandering his money or is
apparently leaving beyond his means. This type of procedure can be commenced against joint debtors.
See R v Ncube 1969 (2) RLR 310.
It is commenced by summons for civil imprisonment. Where it appears either that a judgment has
remained unsatisfied for seven clear days or, from the admission in writing or in open court of any
judgment debtor or by the return of the messenger to any process of execution, that such judgment
debtor has not sufficient property liable to be attached in execution to satisfy the judgment debt and
costs, the judgment creditor may take out a summons calling upon the judgment debtor to show cause
why a decree of civil imprisonment should not be made against him. Section 26(1). The summons
should be in Form CIV 35.
In terms of Section 26(3) the judgment creditor must pay the debtor’s traveling expenses if the service
was effected outside the province of the court from which the summons was issued.
The summons must be served personally on the debtor. The summons call upon the debtor to make
payment or to appear in court before on a date specified in the summons to show cause why a decree
of civil imprisonment should not be made against him. If the debtor defaults or fails to show cause the
court will make an order or decree of civil imprisonment.
The order will be enforced by way of warrant for civil imprisonment in Form CIV 36. It is basically a
warrant of arrest authorizing the Messenger of Court to arrest the debtor and have him detained in a
mentioned prison.
A warrant for civil imprisonment may be executed at any hour on any day except Sunday, Christmas
Day and Good Friday; and at any place except within the residence of the person to be imprisoned or
the precincts thereof. Provided that a magistrate may, on good cause shown, grant leave for a warrant
for civil imprisonment to be executed on a Sunday, Christmas Day or Good Friday or to be executed
within the residence of the person to be imprisoned or the precincts thereof, as the case may be.
O28R5.
The warrant of the court for the civil imprisonment of any person shall be signed and issued by the clerk of the
court, and shall be addressed to the messenger of the court and to the keeper of a specified prison. A warrant for
civil imprisonment shall bear on its face the date when the decree was made and, if any payments have been
made under the decree, the date of the last payment. O28R2. One may want to consider the provisions of
Section 49(2) of the Constitution.ie right to personal liberty- no person may be imprisoned merely on the
ground of inability to fulfil a contractual obligation
In terms of R4 where there are two or more orders for civil imprisonment against the same debtor,
such orders shall be cumulative with effect according to priority of issue of the respective warrants
unless otherwise directed by the court.
Note Section 31 on time periods. Further note that once a person has served his full term he cannot
imprisoned again for the same debt.
The judgment creditor must pay for the debtor’s sustenance while in prison. The debtor may apply to
the court for his release on good cause shown.
Suspended Orders
If the debtor responds to the summons by offering to pay in installments a decree will be made and
suspended on condition that he pays in terms of his offer. If the debtor defaults a warrant for arrest
can be made. See Section 29. Where an order is made for civil imprisonment to be suspended so long
as certain instalments are paid, the clerk of the court may, before issuing a warrant for civil
imprisonment, require the party applying therefor to satisfy him that the debtor has failed in due
payment of any such instalment. R3.
Costs
A judgment creditor who proceeds to apply for a decree of civil imprisonment despite the debtors’
bona fide offer to pay or his inability to make an offer may be ordered to pay the costs of the
application. Section 28(1).
The judgment debtor shall bear the costs of any proceedings for the suspension or discharge of any
decree or warrant or order for civil imprisonment unless the judgment creditor is in some way
responsible for the proceedings. Section 28(2). The discretion of the court to make a just order as to
costs is not fetted by the provisions of section 28.
RESCISSION OF JUDGMENT
It is provided in Section 39 of the Mag Court Act and Order 30 of the Mag Court Rules.
Any party against whom a default judgment is given may, not later than one month after he has
knowledge thereof, apply to the court to rescind such judgment. O30R1. There is a rebuttable
presumption of knowledge of such judgment within two days after the date thereof. R1(4).
The application must be supported by affidavit stating the reasons why the applicant did not appear at
the hearing. The ground of defence or objection is that one has a bona fide defence to the main matter.
If the application for rescission is brought out of time there is need to seek condonation first. See
Mahoqa v Liebenberg SC 206/91.
In terms of R1(3) the applicant must pay into court the amount of costs awarded against him plus an
amount for security for costs of the application.
In terms of R2(1) the court must dismiss if the was in willful default. See Neuman Pvt Ltd v Marks
1960 RLR 166. If the applicant was not in willful default and has filed acceptable grounds on the
merits the court has a discretion to rescind or vary the order granted and it can also give directions as
is necessary.
Wilful default has three components to it. These are knowledge by the applicant that action has been
brought against him, with that knowledge he deliberately refrains from doing what he is required of
him although he was free to do so, there must be a mental attitude in his mind of not carrying about
the consequences of his default. Once the first two points are established the last one is presumed. See
Gundani v Kanyemba 1988 (1) ZLR 226 (S).
The court must be satisfied with the grounds of defence before granting rescission. Where the
summons does not disclose a cause of action rescission must be granted. See Bingari v Mbondiya
SC 91/86. The rule has been interpreted to mean that the grounds for rescission must be a good prima
facie defence.
The rescission can also be granted partially. See Musakasa v Mimba SC 46/86.?????
APPEALS [ORDER 31]
A litigant who is dissatisfied with the judgment of a court of the first instance may in certain
circumstances appeal against that judgment to a higher court. Note that all judgments are appealable
e.g. one cannot appeal against an interlocutory order or judgment; one has to obtain the leave of the
court and cannot appeal as a right.
Right of Appeal
Subject to the rule that no appeal lies if before the hearing is commenced the parties lodge with the
court a written agreement that the decision of the court is to be final, a party to any civil suit or
proceedings in the Magistrates Court may appeal as of right to the appropriate higher court from
certain types of judgments. See Section 40.
Noting of Appeal
Every party appealing must do so within the period and in the manner provide by the rules. The court
of appeal may however in a case extend the period of notice of appeal on application. An appeal may
be noted within twenty - one days after the date of the judgment appealed against; or fourteen days
after the delivery to the clerk of the court by the magistrate of a written judgment; whichever period is
the longer. R2(1) (a)&(b).
An appeal from the Magistrates Court lies with the High Court. In terms of R2 an appeal is decided on
the record. The party appealing must tender security for costs of appeal. Rationale is to ensure that the
appeal noted is not done to harass or inconvenience the other party.
An appeal is noted by delivering a notice of appeal, that is the notice must be filed with the clerk of
court and a copy must be served on the other party. O31R2(2). The notice of appeal shall state
whether the whole or part only of the judgment or order is appealed against and, if part only, then
what part and the grounds of appeal, specifying the findings of fact or rulings of law appealed against.
R2(4).
Execution of Judgment Pending Appeal
It should be noted that no court has authority to order or give an order authorizing any party to
execute notwithstanding the notice of appeal. If a party wishes to execute he has to make a formal
application to court. The court has a discretion whether to grant leave to execute pending appeal once
application is made. In exercising its discretion the court is guided by certain factors. These were set
out in a number of cases such as ZDECO Pvt Ltd v Commercial Careers College (1980) Pvt Ltd
1991 (2) ZLR 61 (H) and Masimbe v Masimbe 1995 (2) ZLR 31 (S). A party applying for execution
must show special reasons why execution should be allowed. Also note section 40(3) of the
Magistrates Court Act.
THE PROCEDURE OF THE MAINTENANCE COURT
APPLICATION FOR MAINTENANCE ORDERS
The main statute is the Maintenance Act Chapter 5:09.
Every magistrates court shall, within its area of jurisdiction, be a maintenance court for the purposes
of the Act-Section 3 of the Act. However when a Magistrates Court is sitting as a maintenance court it
is a separate court, the rules are different and the Act is different.
Procedure for bringing a Maintenance Claim
A complaint on oath is made to a maintenance officer of a maintenance court that a responsible
person fails or neglects to provide reasonable maintenance for any dependant of his. The maintenance
officer may issue a summons requiring the responsible person to appear before a maintenance court to
show cause why an order for the maintenance of the dependant should not be made against him.
Section 4(1). The complaint is in the form of an affidavit.
In terms of Section 2 a “responsible person” means a person who is legally liable to maintain another.
For instance a husband is legally liable to maintain his wife and vice-versa. Husbands and wives at
customary law are also primarily liable to maintain one another. See Section 6(3). The legal
responsibility is not indefinite-until the child is 18 or becomes self-supporting whatever occurs
sooner. For spouses the obligation to maintain each other occurs both during the marriage or extends
beyond marriage until death or remarriage.
In terms of section 6(2) a maintenance court shall not make an order in favour of a dependant unless it
is satisfied that the person against whom the order is sought is legally liable to maintain the
dependant; and the person against whom the order is sought is able to contribute to the maintenance of
the dependant; and the person against whom the order is sought fails or neglects to provide reasonable
maintenance for the dependant.
In making an order the maintenance court considers:
a)
the general standard of living of the responsible person and the
dependant, including their social status;
b)
the means of the responsible person and the dependant;
c)
the number of persons to be supported;
d)
whether the dependant or any of his parents is able to work and, if so,
whether it is desirable that he or she should do so.
Note that the complaint may be made by the dependant or by some other person having the care or
custody of the dependant or by a probation officer.
Once the summons is issued service on the respondent is by the Messenger or the police for free.
On the date specified in the summons an inquiry is made and is conducted in the presence of the
respondent or in his absence after proof of service. The role of the presiding Magistrate is different
from that in a normal trial in Magistrates Court. The magistrate is not a passive umpire but plays an
active role in investigating the facts of the case. See Section 13. This is why it is an inquiry. See also
Zimunya v Zimunya HH 378/84.
A maintenance court can then make an order if it is satisfied that the person against whom the order is
sought is legally liable to maintain the dependant; and the person against whom the order is sought is
able to contribute to the maintenance of the dependant; and the person against whom the order is
sought fails or neglects to provide reasonable maintenance for the dependant. Section 6(2).
Where the responsible person is employed the court can direct that the payment of the maintenance
order be made by the employer. The court can also order that the order be done through the clerk of
maintenance court.
Execution of Judgment pending Appeal
If someone is dissatisfied by the decision of a Maintenance court one can appeal to the High Court in
terms Section 27. Note that in terms of s27(3) pending the appeal they must pay. This is because the
appeal does not, pending the determination of the appeal, suspend the decision appealed against
unless the maintenance court, on application being made to it, directs otherwise, and for such
purposes the maintenance court may give such directions as it thinks fit. If someone is successful on
appeal the court can order repayment of what was paid-Section 27(4).
ENFORCEMENT OF MAINTENANCE ORDERS
There are basically four methods of enforcing maintenance orders.
1)
By a direction against the employer in case of an employed person. See
section 9. The maintenance officer shall issue a notice upon the responsible person and the
employer, calling upon them to appear before the maintenance court on a date to be specified
in the notice and to show cause why the direction should not be made or to consent to the
making of the direction. The court can then make a direction against the employer to make
such payments in terms of the order, including any arrears, as the court may specify. The
employer will then deduct what is due in the maintenance order from the person’s salary.
2)
By way of prosecuting the responsible person-s 23. It is a criminal
offence not to comply with a maintenance order. A person can be convicted and penalized for
it.
3)
By the methods provided in s 22(2). The clerk of the maintenance
court can, on behalf of the person in whose favour a direction or an order registered in terms
of section eighteen has been made, take such steps for the civil enforcement of the direction
or order as may be necessary. This means that the clerk of the Maintenance Court is to
enforce the order in the same way as a judgment of the Magistrates Court.
4)
The maintenance court can obtain a decree for civil imprisonment for
arrears of maintenance.
It is also important to note section 11 on termination of maintenance orders and section 12 on
variation and rescission of maintenance orders. In respect of a child an order terminates when the
child dies or is adopted or if the child marries or reaches 18 or becomes self-supporting. The order can
extend beyond 18 on application to the court. In respect of a spouse it terminates when the spouse
dies; or remarries or when an order of divorce or decree of nullity or order for judicial separation is
made. Variation is granted in specific circumstances. If the circumstances have changed an
application for variation can be made on affidavit stating the grounds on which the variation is sought.
See section 8. An order can also be discharged in terms of this section.
It is noteworthy that orders can be registered in terms of Section 18 in an appropriate court. Section
20 provides for transmission of orders from one district or province to another and the order can be
registered as an order of that court.
THE PROCEDURE OF THE HIGH COURT
JURISDICTION OF THE HIGH COURT
The High Court is created by the High Court Act [Chapter 7:06]. It has jurisdiction under both
common law and statute. However note provisions of S53 of the HC Act. In terms of that section if
somebody takes a matter to the HC which could have been heard in the Magistrates court then 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.
Inherent jurisdiction
Only superior courts have it. It is the power of the court to deal with matters that are incidental to the
exercise of the jurisdiction that has been expressly provided for either under statute or under common
law. 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.
There are a number of cases dealing with inherent jurisdiction
Nyaguwa v Gwinyai 1981 ZLR 25 (H) where it was held: Neither the HC nor any other court may
overrule the decision of another court save the extent that power to overrule such a decision has been
conferred upon it by statute. On the facts the court held that 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 also Granger v Minister of State (1984 (1) ZLR 194 (S)
Midlands Chemical Industries Pvt Ltd v Scotfin & Anor HH 20/91
It involved a sale in execution by public auction by the messenger of court in which there were certain
irregularities. The applicant who was the judgment 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
2nd 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 (S).
Chief Justice Gubbay as he then quoted with approval the SA case of Chunguete v Minister of
Home Affairs and Ors 1990 (2) SA 836 (W) 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 of 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 SC had inherent jurisdiction dealing with matters such as the appellant
case like the HC. The court further held that the SC inherent jurisdiction extended only to procedural
matters. Held also: The exercise of the inherent jurisdiction was entirely within the discretion of the
court.
Statutory Limitations on Jurisdiction
SC is only an appellate court. S24 of the Constitution: where a person is alleging the violation of the
bill of rights he can apply to the SC. In that case the court has original jurisdiction. See Granger
(supra) & Conjwayo v Min of Justice & Anor 1991 (1) ZLR 105 (SC)
In re Mulambo 1991 (2) ZLR 339 (SC). 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 had
been infringed. 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.
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
Liquor 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
Persons-Fugitives from justice have no audience in the court e.g. a person who ran away from legal
obligations. Alien enemies i.e. any citizen of foreign country which is at war with Zimbabwe.
Subject matter outside the jurisdiction of Zimbabwean courts e.g. immovable property situated
outside Zimbabwe-Go to the place the 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 does not apply here.
PRINCIPLES OF COMMON LAW ON WHICH JURISDICTION OF HC IS EXERCISED
i.
ii.
iii.
Actor sequitor forum rei: plaintiff follows the defendant to his or her
forum (the court with jurisdiction over that person). HC has 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 and where they have some
interests in Zimbabwe. See section 13 HC Act.
Doctrine of submission: At common law a person who is neither
resident nor domiciled in Zimbabwe can submit to jurisdiction.
Doctrine of effectiveness: 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).
JURISDICTION IN PARTICULAR PROCEEDINGS
Claims Sounding in Money (for payment of money).
The important consideration is 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 peregrinus is a person who is
neither resident nor domiciled in Zimbabwe or within the court’s jurisdiction. With these claims
therefore the main principle is the actor sequitur forum rei.
Different principles apply whether the plaintiff is an incola or a peregrinus.
Incola Plaintiff v Peregrine Defendant
There are three different circumstances in which the courts have jurisdiction at common law.
If the defendant submits to the court’s jurisdiction (doctrine of
(1)
submission)
(2)
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 has 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 Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 AD.The
plaintiff was incola and defendant peregrinus. The plaintiff purchased a bakery oven from 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 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 appealed. 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 cannot
attach a claim which it is denying – cannot approbate and reprobate. The value of the property to be
attached should bear some relationship to the claim. The court said that the property should confirm
with the requirements of the doctrine of effectiveness although it does not have to be sufficient to
satisfy the judgment which may be given in the case – it must not be of trifling value.
(3)
Where there is attachment of property or arrest of the peregrine to
found and create jurisdiction.
Central African Airways Corporation v Vickers Armstrong Ltd 1956 (2) SA 492 (FSC). 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 wing which was caused by corrosion 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 and 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
The court will have jurisdiction if the cause of action arose within its area and there is attachment of
property or arrest of the peregrine defendant to confirm jurisdiction; or if there is submission to the
jurisdiction of the court. By instituting proceedings in that court the defendant would have accepted
jurisdiction.
Section 15 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 peregrine 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 must seek actual attachment.
i.
ii.
where property 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 the 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 leave to attach property was granted because there was a
danger it might be removed.
S15 does not create a new ground for jurisdiction 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 jurisdiction.
See African Distillers Ltd v Zietkiewiz 1980 ZLR 135 (GD). Both the plaintiff and defendant were
peregrine. 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 available within the jurisdiction of Zimbabwe for attachment or arrest.
Artificial Persons
An artificial person such as a company incorporated in Zimbabwe or if it is registered in Zimbabwe is
an incola. All those incorporated outside Zimbabwe are peregrine.
An artificial person whose principal place of business is situated within the court’s area of jurisdiction
is also incola.
See Beckett & Co. Ltd v Kroomer Ltd 1912 A.D 324
Claims Relating to Property
In respect of immovable property the court that has jurisdiction if it 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. The court has jurisdiction if it is the court
within whose jurisdiction the property is situated at the time of the institution of the proceedings. This
issue was discussed in the case of Voicevale- Ltd v Freightlink (Malawi) Ltd 1987 (2) ZLR 22 (S).
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, and
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 that the balance of convenience was in favour of the matter being heard in Malawi than in
Zimbabwe. On appeal the SC held that the HC had jurisdiction on the basis of forum rei sitae (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 ZLRev Vol. IV 173
Matrimonial Matters
1)
a)
At Common Law
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- 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 (R). The applicant instituted matrimonial action against the defendant
seeking a decree of divorce on the ground of cruelty. The respondent counter-claimed 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 has been issued.
b)
Judicial Separation
There are three grounds on which the court can have jurisdiction, if it is
(i)
the court of the domicile or residence of the parties at the time of
institution of proceedings for judicial separation
(ii)
the court of domicile of either party at the time of institution of
proceedings
(iii)
the court of the area of the celebration of marriage.
These apply in the alternative.
c)
Nullity (Decree of Nullity)
This depends on whether the marriage is void or voidable. With void marriage it is invalid but a
voidable one is valid until it is set aside.
There are grounds on which the court can have jurisdiction in case of a void marriage:(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
Ex parte Oxton 1948 (1) SA 1001 CPD. The applicant applied for leave to institute proceedings for
decree of nullity by a process called edictal citation. The parties had 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 Cape 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.
Exparte 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 form a newspaper report 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 the common law
relating to divorce. The court of the matrimonial domicile has jurisdiction. Exparte Oxton (supra)
pg 1014-1015.
2)
Under Statute
The important provision is S3 of the Matrimonial Causes Act [Chapter5:13] 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:

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 resident 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.
See Kennedy v Kennedy 1978 RLR 58, Braimah v Braimah 1996 (1) ZLR 571 (H) ; HCH 66/96,
Mandlbaur v Mandlbaur 1983 (1) ZLR 26.
PARTIES
Legal Capacity
Parties need to have legal capacity to sue or defend proceedings. Legal capacity is also referred to as
locus standi. It is legal capacity in the sense of having an interest in the subject matter of suit.
Necessity for: Zimbabwe Teachers Association Ors v Minister of Education and Culture 1990
(2) ZLR 48 (H). Exception: Class Actions Act (Cap. 8:17). Petho v Minister of Home Affairs &
Anor 2002 (2) ZLR 436 (S)
Need to establish locus standi in commencing papers: Alino & Anor v Alino H.H. 181/90, Public
Service Association v Chitsaka & Ors H.H. 64/93.
1.
Legal capacity in general – locus standi in judicio
Natural Persons
General rule: Every natural person has the right to sue and be sued.
Certain classes of natural persons whose legal capacity is varied and who are under a disability in this
respect.
(a)
Minors
In general a minor has no locus standi in judicio. May sue or be sued, either:
i.
ii.
in the name of guardian see Walt v Hudson & Moore (1886) 4 S.C.
327 or
in his own name assisted by his guardian. Willmer v Rance (1904) 21 S.C. 423.
If no guardian or where possible conflict of interest with guardian then it is necessary for curator ad
litem to be appointed.
Exceptions when minor have locus standi in judicio. When minor emancipated or in exceptional
circumstances. Ex parte Goldman 1960(1) S.A. 89 (N)
(b)
Married Women
Woman married in community of property: husband institutes the action. See Married Persons
Property Act [Chapter 5.12].
See Jenah v Nyemba 1986 (1) ZLR 138 (S) for customary marriages.
Exceptions e.g. Where marital power is excluded-married in community but has capacity.
(c)
Mentally defective or disordered persons
Must be legally declared to be mentally incapacitated. Represented by Curator ad Litem:
See Rule 249.
(d)
Prodigals
Prodigal is a person who is financially irresponsible and is represented by a curator bonis or curator ad
litem. Ndhlela v Ndhlela H.H. 226/86 ????
(e)
Insolvents
Right to sue and be sued is vested in Trustee of the insolvent estate. Exceptions in subsections 10-15
Section 35 of Insolvency Act [Chapter 6.04].
(f)
The President and Judges
See Order 3 Rule 18 of High Court Rules and s 98 of the Constitution in his personal capacity cannot
be sued. In his official capacity he can be sued with the leave or permission of the court in terms of
R18 of HC rules. Leave to sue a judge is also required.
(g)
Alien Enemy
Cannot sue but can be sued.
(h)
Fugitive from justice cannot sue. See Minister of Home Affairs v
Bickle 1983 (1) ZLR 99
(i)
Members of Parliament.
They cannot be sued in respect of statements they utter in Parliament. They are immune terms of the
Privileges, Immunities and Powers of Parliament Act [Chapter 2:08] a
(j)
Diplomats and Foreign governments
They have immunity in terms of the Privileges and Immunities Act [Chapter 3:03]. However the
immunity only extends to acts of a governmental nature and not ordinary commercial transactions.
See ICRC v Sibanda & Anor SC 48/2003.
Artificial Persons
Those having locus standi
i.
The Government see State Liabilities Act (Cap 8:14)
Minister nominal defendant or respondent – S3
Minister must be cited by official title and not name –S4
ii.
iii.
Local authorities
Bodies specifically incorporated by Statute e.g. Universities, Electricity
Supply Commission.
iv.
v.
Companies incorporated under the Companies Act [Chapter 24:03].
Co-operatives incorporated under the Co-operative Societies Act
[Chapter 24:04].
vi.
Common Law Universities.
Three elements required:
a.
b.
c.
Entity distinct and separate from individual members.
It must have perpetual succession.
Capable of owing property apart from its members.
Morrison v Standard Building Society 1932 A.D. 229, Moloi v St John Apostolic Faith Mission
1954 (3) S.A. 940 (T). See also Herbstein and Van Winsen page 156.
Those not having locus standi
i.
Partnership
Order 2A of High Court Rules-(PARTNERSHIPS NOW HAVE LOCUS STANDI TO SUE AND BE
SUED IN THEIR OWN NAME – SEE REVISED ORDER 2.
ii.
Voluntary Association not being a Universitas-Order 2A of High Court
Rules.
2.
Specific Capacity to institute or defend particular proceedings
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
(H). There 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 reinstatement of teachers. Dismissed teachers were also part of it. The point in limine was
that whether ZTA had locus standi. Also whether the 3 dismissed teachers who sought to be involved
in the proceedings could be joined at that stage. On the first one the court ordered that the teachers
had real and substantial interest in the matter. Secondly the three teachers had sufficient interest in
the matter to be joined as parties.
FORM OF PROCEEDINGS: ACTION OR APPLICATION
There are two basic forms of procedure which may be used for instituting proceedings in the High
Court (i) Application (ii) Action.
Action-commenced by Summons, followed by a set of pleadings and a trial at which oral evidence is
submitted.
Application-commenced by Notice of Application supported by affidavit, followed by a set of
affidavits and decided on the affidavits.
Instances where application proceedings not permissible
(a)
Matrimonial matters (main claim) incidental issues like custody,
maintenance pendente lite can be by application.
(b)
Unliquidated damages i.e. damages yet to be assessed by the court. See Room Hire
Co. v Jeppe Street Mansions 1949 (3) SA 1155 (T).
(c)
Provisional Sentence Matters O4 Rule 20 specifically says it should be by way of
summons.
(d)
Civil Imprisonment requires summons to be issued (O41 R368)
Instances where application must be used
Where directed by Stature, e.g. Insolvency proceedings
Instances where application procedure permissible but not essential
If it’s a straight-forward money claim where you don’t anticipate any opposition then it is less
expensive to use 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. See Herbstein and Van Winsen pages 63/64.
See Regal Trading Co. (Pvt) Ltd v Coetzee 1956 (1) SA 766 (O), Miller v Roussot 1975 (1) RLR
324, Zimbabwe United Freight Co. Ltd v S & T Import and Export (Pvt) Ltd 1981 ZLR 361,
Bevcorp (Pvt) Ltd v Nyoni & Ors 1992 (1) ZLR 352 (S).
Procedure where dispute of fact arises in application
Court decides whether there is a material dispute of fact but there must be some evidence to support
an averment of dispute of fact. A bald averment is not sufficient.
Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do
so. It should adopt a robust view and endeavour to resolve the dispute without the hearing of
evidence if this can be done without doing injustice to either party. See Room Hire Case and
Soffiantini v Mould 1956 (4) SA 150 (E), Joosab v Shah 1972 (4) SA 298 (R), Masukusa v
National Foods Ltd. 1983 (1) ZLR 232, Zimbabwe Bonded Fiberglass P/L v Peech 1987 (2) ZLR
338 (S), Shana v Shana & Ors 1990 (2) ZLR 129 (H)
If Court decides dispute of fact is material and cannot be resolved on affidavit evidence then Court
may:
(a)
dismiss application. See Room Hire Case and Masukusa v National
Foods case.
order parties to trial see O.23 R.159(b). Room Hire Case, Duly’s (Pvt)
Ltd v Brown S. 172/93, Jongani v Kadenhe S.24/92.
(c)
order that oral evidence be heard O.23 R.159(a). See Bhura v Lalla
1974 (2) SA 336 (RAD), Barklie v Bridle 1956 (2) SA 103 (R)
(b)
Advantages and Disadvantages of Alternative Procedures
See: “Application v Trial” by Findlay 1951 SA L.F. 20
PROCEEDINGS BY WAY OF ACTION
Action is commenced by way of a summons.
Demand
There are two instances where a demand is necessary:
(i)
to safeguard the costs of summons. If the plaintiff does not make a
demand but 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 e.g. 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 Demand
It must be pleaded where it is necessary to complete the cause of action.
Form and Contents of Demand
Need not be in writing unless it is stipulated by statute or agreement. It is however prudent to make it
in writing for evidential purposes.
It can be by creditor himself or someone representing him.
The demand must give sufficient detail to enable debtor to know upon what basis the creditor claims
the relief.
It must give debtor reasonable time in which to comply.
Not necessary to threaten legal action in a demand.
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, judicial separation-Form 30A.
R10 – the summons must call upon the dependant to enter appearance to defend if 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 and 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 excluding day of service. 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. See Dark v Davies 1946 SR 54.
Examples of claims for a debt or liquidated damages
A claim for an order declaring specially hypothecated property in a mortgage bond to be executable
(sold in execution). The claim was held to be a claim for a liquidated demand in Fred & Anor v
Keelan 1951 SR 7
A claim for an amount due in terms of a deed of dissolution of partnership. Mohr v Krier 1953 (3)
SA 600.
A claim for a statement of account, debating of such account and payment of money owing to the
account. SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2) 131.
A claim for money stolen by the defendant from plaintiff was held to be a claim for debt or liquidated
demand but the claim for the value of goods stolen by the defendant was held to be unliquidated.
Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498. See International Hardware
Cooperation Pvt Ltd v Appleton 1971 (1) SA 404-Reached the same decision that claim for stolen
money is a liquidated demand and a debt.
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. Standwin Investment Pvt (Ltd) v Helfer 1961 (4) SA 470. 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.
Fatti’s 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 Munyembe 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.
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. Brooks & Anor v
Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA.
A claim based on a foreign judgment was held to be a claim for a debt or liquidated demand. Atlas
Assurance Co. Ltd v Goodman 1955 SR 328.
Morris v Stern 1969 RLR 427. A claim for ejectment was held to be a claim for a debt or liquidated
demand.
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. Dube v Sengwayo
HHC 110/91.
Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 11.92. 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.
In Midsec (Pvt) Ltd & 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 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 – Order 17
Declaration is a statement of Plaintiff’s claim and must set out the nature, extent and grounds of the
cause of action and the relief claimed. Rule 109 & 110 (2)
Where relief claimed is founded upon separate grounds, the grounds must be stated separately and
distinctly. Rule 111
Plaintiff may in declaration amend claim/s stated in summons provided that if amendment causes
prejudice Court may award costs to cure prejudice. Rule 115
Plaintiff may file and serve declaration with summons or any time thereafter. Rule 113
However, if appearance to defend is entered by defendant and Plaintiff fails to file declaration within
12 days of such entry Defendant may give notice of intention to bar. Rule 112
If Plaintiff has served declaration before dies induciae have expired and Defendant tenders to satisfy
Plaintiff’s claim in full Plaintiff will not recover costs of Declaration unless he is able to show good
cause. Rule 114
Summons deemed to be amended by claim stated in Declaration. Rule 115
Service ORDER 5
Rules 35-43 and Section 20(1) & (2) of High Court Act.
All process of the HC has to be served by the sheriff or his deputy or assistant deputy. Rule 37(1)
S20(2) allows the 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.
S20(3) provides that the return of service of the sheriff or deputy or assistant deputy sheriff shall be
prima facie evidence of the matters stated in it. Rule 42B(1) (a)-Form 5A.
S20(1) Any service in contravention of that provision will be invalid.
See Wattle Company (Pvt) Ltd v Inducom (Pvt) Ltd 1993 (2) ZLR 108.
Process such as summons must be filed with the Registrar. Service before filing is invalid. See
Mandaza v Mzilikazi Investments (Pvt) Ltd HB 23/07.
Service of any process affecting the liberty of that person or which has the effect of changing one’s
status like divorce must be delivered personally-Rule 39(1). Any other service of process can be done
by delivery to that person or to a responsible person at the residence or place of business-Rule 39(2).
Service within Jurisdiction
Order 5 Rule 35 – 43. Wattle Company case.
Service of any other process, if it is by a legal practitioner or a responsible person employed by a legal
practitioner, proof of service is in Form 6 or 7-See Rule 42B(1)(b). Service by any other person, proof
of service has to be by affidavit-Rule 42B(1)(b).
Service of process in proceedings against State
Section 5 of the State Liabilities Act
Order 5A Rule 43A – 43D as read with the Seventh Schedule to the Rules.
Substituted Service
Is resorted to when a party is unable to effect service as stipulated in the Rules. They make an
application for substituted service. See Order 6 Rule 46
Service outside Jurisdiction
To serve outside jurisdiction one must obtain leave either by way of Court or Chamber Application.
Order 6 Rule 44 & 45.
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 is residing. If the person serving is a
deputy or undersheriff 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.
FURTHER PROCEDURE WHEN ACTION UNCONTETSED
JUDGMENT BY CONSENT
Order 8 Rule 53 – 55
In terms of R53 the Defendant can consent to judgment at any time after service of summons except
in matters affecting status e.g. divorce 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 also be
verified by 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. Judgment 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. The judgment was rescinded and costs
de bonis propriis were awarded against the Legal Practitioner who had consented to judgment without
the client’s authority.
If the consent is filed in a proper form, then judgment by consent will be met through the chamber
application R55. R56 gives the court authority to set aside a judgment given by consent on good
cause shown.
DEFAULT JUDGMENT ORDER 9 rule57-63A
A default judgment is entered against a defendant in default of appearance to defend, in default of
plea, in default at trial and also where there is a failure to comply with discovery and default at PTC.
Claim for debt or liquidated demand
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 default judgment R.57.
Claim not for debt or liquidated demand
If the claim is not for a debt or liquidated demand then the procedure if there is default to appearance,
is the procedure is set out in R58. The plaintiff must file and serve his/her declaration if 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
quantum can be by way of an affidavit and not oral evidence. The affidavit should be filed within a
specified time limit as follows:(1)
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.
(2)
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). 4
In situations where there is default of plea the plaintiff must first of all bar the defendant by a
procedure called “barring” after giving notice of intention to bar. Once the defendant has been barred
then the procedure is the same as in R59 – set down.
Default at Trial
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 it is 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.
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.
UNCONTESTED DIVORCE ORDER
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.
If ordinary summons are used one is required to take the following steps:(i)
(ii)
(iii)
file and serve your declaration if you have not already done so.
if there is still no response do a notice to plead in terms of R272(1)(a).
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.
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 ancillary 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 with whom the defendant was alleged to have committed adultery with was
not cited as co-defendant 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 person who is named for adultery can actually waive the right to have the 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.
Set down is in terms of R223(1) (c) - notice is to be accompanied by a 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.
Evidence will also be needed so that the court can be satisfied that there are grounds for divorce.
R277B allows the plaintiff to give their evidence in the form of an affidavit. There is a time limit to
file affidavit. If matter set down in Harare file at 10.00 am on a Thursday immediately preceding the
Wednesday in which the matter is to be heard. In Bulawayo 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
Any other documentary evidence depending on the contents of the
affidavit e.g. Proof of service.
The court may still insist that he plaintiff give oral evidence and the court may postpone the matter.
Where special summons Form 30A are used you simply set the matter down and the matter is to be
heard on the date specified in the summons without any reference to the defendant.
N.B. the procedure on Form 30A is not clear because of changes.
APPLICATION FOR RESCISSION OF JUDGMENT
Consent Judgment-Under Order 8 Rule 56. In terms of this Rule a judgment given by consent under
the rules may be set aside by the court and leave may be given to the defendant to defend, or to
plaintiff to prosecute his action. Such leave shall only be given on good and sufficient cause and upon
such terms as to costs and otherwise as the court deems just.
See Hockey v Rixon N.O. 1939 S.R. 107, Roland v McDonnell 1986 (2) ZLR 216, Washaya v
Washaya 1989 (2) ZLR 193, Mukundadzviti v Mutasa 1990 (1) ZLR 342, Minister of Home
Affairs v Vuta 1990 (2) ZLR 338.
Default Judgment- Under Order 9 Rule 63 by Court. In terms of this rule:
(1) A party against whom judgment has been given in default, whether under the rules or under any
other law, may make a court application, not later than one month after he has had knowledge of the
judgment, for the judgment to be set aside.
(2) If the court is satisfied on an application in terms of subrule (1) that there is good and sufficient
cause to do so, the court may set aside the judgment concerned and give leave to the defendant to
defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court
considers just.
(3) Unless an applicant for the setting aside of a judgment in terms of this rule proves to the contrary,
he shall be presumed to have had knowledge of the judgment within two days after the date thereof.
See Du Preez v Hughes 1957 R & N 706, Barclays Bank of Zimbabwe Ltd. v C.C. International
and Shava S 16/86, Ndebele v Ncube 1992 ZLR 288.
See also Rule 63A. setting aside of default judgment by consent
Summary Judgment-Order 10 Rule 74
The rule provides that, (1) If a defendant against whom judgment in terms of Order 10 has been
granted satisfies the same within one month thereafter or within such extended time, not being more
than three months in all, as the court at the time of giving judgment may allow, he may within one
month after so satisfying the judgment make a court application to set aside the judgment.
(2) On such application the court may on good cause shown set aside the judgment and give leave to
defend, and may give directions as to the giving of security by the plaintiff for the return of the money
or goods recovered, if the defendant should be successful, or for the payment into court of such
money or the deposit with a custodian of such goods, to abide the result of the action.
(3) Where such leave is given the action shall proceed in the ordinary manner subject to any directions
which the court may give.
FURTHER PROCEDURE WHEN ACTION CONTESTED
APPEARANCE TO DEFEND Order 7 Rule 48 – 49
Appearance is effected by the defendant or his legal practitioner who shall record in the appearance
book at the registry where he has been called upon to enter appearance, the title and number of the
action; notification of his intention to defend; an address called an address for service which shall be
within a radius of five kilometres of the registry; his postal address; the date of entry; and shall sign
the entry thus made. Form 8
A defendant who has failed to enter appearance shall be deemed to be barred. Rule 50 see Banda v
Pitluk 1993 (2) ZLR 60
Where the defendant has entered appearance the plaintiff is not entitled, save with the defendant’s
consent in writing, to withdraw the action until he has paid the defendant’s taxed costs or has
undertaken to pay such costs and has given notice of intention to withdraw to the defendant and to the
registrar. Such undertaking shall be incorporated in the notice of withdrawal. Rule 52
See also Herbstein & Van Winsen pg. 242
Time limits for entry of Appearance to Defend?? 10 days exclusive of date of service ito Rule 17
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. O17 R109, 110.
Where the relief claimed is founded upon separate grounds the grounds must be stated separately and
distinctly. R111.
The plaintiff may file in terms of 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 at any stage of the
proceedings prior to judgment by way of court application on notice to the other party. 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.
DEFENDANT’S PLEA ORDER 18
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 them 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.
See 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. See Huntly-Silburn v Levien 1937 TPD 199
Exception to this rule is in a damages 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 alternatives. If a denial results in the matter taking longer than was
necessary thus incurring extra-costs and the court is of the view that 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 is that 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.
Declinatory – to quash or put an end to the proceedings.
(b)
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.
(ii)
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
Loans from state –6 years
– 3 years
Road Traffic Act – 2 years to sue insurer
Police Act-8 mnths
(iii)
Lack of jurisdiction.
See 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
(i)
(ii)
lis alibi pendens – some matter is pending in another court.
No locus standi
capacity to sue
- person who has instituted proceedings has no
See Edwards v Woodnutt N.O 1968 (4) SA 124
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
DEFENDANT’S CLAIM IN RECONVENTION – ORDER 18 rule 120-124
If Defendant wishes to raise claim against Plaintiff he does so by filing a Claim in Reconvention
(Counter-Claim).
Claim in Reconvention does not necessarily arise out of same facts as Claim in Convention but can be
raised in respect of any matter in which Defendant could have maintained in an independent action.
Rule 120(1)
A Claim in Reconvention for unliquidated damages may in appropriate circumstances and if properly
pleaded be a defence to a liquid a claim. See Anderson v Stamb 1951 SR 264
Claim in Reconvention is set out in same manner as Declaration. Rule 121 (2)
Allegations which are being repeated should be incorporated by reference. Rule 122
Claim in Reconvention to be filed and bound with Defendant’s Plea. Rule 121 (1)
Claim in Reconvention may be dealt with separately in certain circumstances but execution should be
suspended until both have been decided. If, in any case in which the defendant sets up a claim in
reconvention, the action of the plaintiff is stayed, discontinued or dismissed, the claim in reconvention
may nevertheless be proceeded with. The court may for good cause shown order the plaintiff’s claim
and the claim in reconvention to be tried separately. Rules 123 and 124
See Van den Berg & Partners v L.C. Robinson & Co. Ltd 1952 SR 148.
REPLICATION Order 19
A replication is not compulsory. It is necessary 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 Order16
Pleadings can be closed prematurely when the party is barred. R107 (a)
Pleadings are also closed if either of the parties joined issues with any pleading of the opposite party
without adding any further or special pleading to it.R107 (b)
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 pleadings should be considered as closed. The agreement will be filed with
the registrar R107(c).
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 he deems fit.
Significance of Closure of Pleadings
Parties cannot proceed to the discovery of documents without of closure of pleadings R160. In
special circumstances you have to obtain leave of the judge to proceed without discovery of
documents R160.
The parties cannot proceed to pre-trial conference before closure of pleadings R182. The parties
cannot 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 e.g. 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 and the one driven by Forest. They instituted proceedings against Forest’s insurer.
The parties joined issue on the 2nd 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 – Order 24
O24 R160 – discovery is initiated by a notice to make discovery which is a written notice requiring a
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 to deliver an affidavit in form No. 18 and
attach a schedule of documents and that schedule will be divided into two parts. The second 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).
See 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 v Brookes and Or
1972 (2) SA 687 (state privileges).
Once a party attach discovery of documents and the other party thinks the discovery is incomplete he
can make a notice for further discovery R162. If the party insist that they do not have the documents
they have to state this on oath on the affidavit, Where the claim of privilege exist it can be challenged
in terms of R177. The court or 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.
represented by LP the usual place is LP’s office.
For parties
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)– 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).
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 need 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 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 there 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 legal practitioner 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 legal practitioner to fail to give notice to make discovery to the client and is
liable to attachment R172.
PRE-TRIAL CONFERENCE Order 26
Curtailment of Proceedings
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 as 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 a 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 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,
number 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 paginate them,
defining of the real issues 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 summarise the issues discussed and to be signed by the parties or
their legal practitioners 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;
(ii)
he may make an order limiting the issues for trial to those not deposed of by admission or
denial.
(iii)
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 not be
awarded costs R182 (10).
If the parties cannot 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 they 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 allows a judge to consult parties in chamber for discussion.
R184 says that a court giving judgment at 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 a 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 Harare in terms of practice direction 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 of 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 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. On the date set for the PTC,
a party should attend either in person or by a representative familiar with the facts and duly authorised
to make decisions on behalf of the party together with the legal practitioner. A legal practitioner can
apply for their client to be excused from attending the PTC in person for good cause shown. It is 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 matters 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 presides 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 condone
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 minutes on Thursdays
and Fridays.
SET DOWN Order 31
Note 1/95 – trial dates can be allocated at PTC – in terms of the rules, the court is open on any day
that is not a Saturday, Sunday or public holiday R220 at the working hours i.e. 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 cannot be
set down during a vacation unless it is 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 legal practitioners, would legal
practitioners actually be representing the plaintiff and is it the same for the defendant. Confirm for
any discoveries. As soon as dates are available the 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 legal practitioners 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 9th of August 1990, the PTC 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 likely 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 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 29th 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 – Order 49
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.
The duty to begin depends on who has the burden of proof. It is 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 of 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 defendant 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 have 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 answers.
Stages of trial where burden on the plaintiff and no ancillary issues arise
i.
Examination in Chief. No leading questions.
ii.
Cross-examination by the defendant
iii.
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.
N.B Cross-examination is not compulsory – do not do it if there is no issue to challenge.
After the defendant has presented his case he will close his case and the applicant will do his 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 B.M.M. Processing (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 the 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 circumstances and only after discussion with counsel.
Conclusion was that the court a quo had committed a serious irregularity in denying the litigants an
opportunity to address the court. The court then proceeded to deal with the matter on the merits and
dismissed the appeal with costs.
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.
OTHER COMMON PROCEDURES ARISING DURING CONTESTED ACTIONS
BARRING Order 12
When does a party become barred? O7 R50-If a defendant fails to enter appearance to defend he 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 is applied for even
when they want to except.
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.
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 cannot 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 a party makes 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 Kirkos 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 the bar removed?
See Petras v Petra SC 71/91. In this case it was held that an application for removal of the bar must
satisfy the following requirements:
(i)
(ii)
the applicant must give good reasons for the default;
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 i.e. have bona fide defence. (plaintiff
must have a good case)
FURTHER PARTICULARS – Order21 R137(1)(d)
Further particulars can be requested for two different reasons:
(i)
to enable the party requesting particulars to plead;
(ii)
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 required?
See Citizen Pvt Ltd v Art Printing Work 1957 (3) SA 383-There was an 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
had arrived at its charges. For example on 42% to cover overheads and the defendant wanted to know
the following in respect of this charge:
(i)
wanted to know how much was allowed for the cost of
(a)
salaries, description and number of employees
(b)
other office expenses stating what they are]
(c)
how much was allowed for advertising stating how much and what
proportions of the total advertisement expenses is desired for printing overheads.
(d)
How much was allowed for depreciation other than depreciation of
printing machine and state what is meant by depreciation and how it is calculated.
(e)
What was meant by overhead rent and how it differed from other rent
(f)
The defendant wanted to know the details of the interest claimed
(g)
Details of the bank charges.
The court said, “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 carry out inquisitorial forays upon his adversary; nor should it be regarded as a challenge to the
subtle 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.
In 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 for providing a security guard for the defendant’s
premises. The defendant pleaded to the summons as follows: the defendant states that it was 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
AD 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 that “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 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 for 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 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 order either party to furnish a further and better statement of
the nature of his claim or defence, or further and better particulars of any matter stated in any
pleading, notice or written proceeding requiring particulars.
Further particulars for the purpose of trial- Form No. 13 is used.
After the close of pleadings, any party may, not less than twelve days before trial, deliver notice in
accordance with Form No. 13 calling for such further particulars of any pleading, notice or written
proceeding as are necessary to enable him to prepare for trial. The party so called upon shall reply
thereto within ten days of delivery of the notice. R143
APPLICATION TO STRIKE OUT Order 21 R137(1)(c)
R141-what should be struck out is any matter which is argumentative or irrelevant matter. See Green
v Latz 1966 RLR 633
Superflous material can be struck out, also vague and embarrassing material where it does not go to
the root of the cause of action or defence; inconsistent or contradicting matter, also any matter which
tends to prejudice or embarrass the other party or 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.
See Tekere v Zim Papers (Pvt) Ltd 275 1986 (1) ZLR 275
EXCEPTIONS ORDER 21
Either party can except to the other party’s claim or defence. If it is an exception to the plaintiff’s
claim it will be on the basis that the claim does not disclose cause of action or it is 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 it is 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 in the following ways:
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.
See 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 earnings 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 is excepted must appear on the documents.
When a plea is vague and embarassing it means that it is such that the plaintiff or defendant cannot
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.
See Salzman v Holmes 1914 AD 152-The plaintiff’s declaration contained several allegations that
the defendant had uttered defamatory words of the plaintiff. Paragraph 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 dug (by plaintiff) if he crossed the river”.
The defendant denied paragraph 7 in his plea but he went on to plead as follows: “with further
reference to paragraph 7 of the declaration the defendant admits that he did on or about the time
mentioned in the presence and hearing of the said Herbert G King make use 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 his 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 ordered 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 rules 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. In this
case 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 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
expunge/ application to strike out.” Appeal was dismissed.
Procedure for excepting
O21 R137 (1)(b)
Form No. 12 is used.
PAYMENT INTO COURT Order 22 rule 144-150
Also termed offers and tenders in settlement –Order 22
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 give 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 prejudice. The details required are
the same as in the offer i.e. signed by the parties or legal practitioner 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 who 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 judgment R149(a). Paragraph (b) require the Registrar to remove any references to the offer or
tender from the file. After judgment 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 they did not 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.
APPLICATION FOR SUMMARY JUDGMENT Order 10 rule 64-74
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 judgment. It was held that the special procedure for summary judgment was conceived so
that a mala fide defendant might summarily be denied except under onerous conditions the benefits of
the fundamental principle of audi alteram partem (principle of natural justice to hear both sides of the
case.) So extraordinary an evasion of a basic tenet of natural justice would not be resorted to lightly
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.
227
Procedure Order10
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 the following; verify the cause of action and the amount claimed if any; state that it is his
belief that there is no bona fide defence to the action-R64(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 bona fide defence to the action R64(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.
i.
judgment may be given against him/her in the action R66(3)(a)
whatever security given must satisfy the registrar that it is adequate
ii.
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 positively to the facts – 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 judgment 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 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.
See Lincoln Shop (Pvt) Ltd v Axis Internationl and Wonder Chizema HH 54/94
Rex v Rhodian Investment Trust (Pvt) 1957 R & N 723 1957 (4) SA 631.
ii.
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 not
ordinarily fatal to the defendant’s case provided that the facts there are 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 the 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.
See Oak Holdings (Pvt) Ltd v Newman Chiadzwa SC 50/86.
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 whether orally or by affidavit.
However there are an exception in a proviso to R67. These are:
(a)
the court may permit evidence to be led in respect of any reduction to
the plaintiff’s claim R67(a).
(b)
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).
(c)
The court may also permit the plaintiff to supplement his affidavit to
deal with either or both of two specific issues.
(d)
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.
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-defendants 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 judgment.
Where the defendant show that he has good prima facie defence on part of the claim and the court
could give leave to defend on that part of the claim.
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 which 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) and also order that the action be
stayed until the plaintiff has paid the costs.
Plaintiff can pay costs on a party to party scale. R72(b) – applied where the plaintiff knew that the
defendant was relying on over-sanguine view of his case. See Rheeder v Spencer (supra)
APPLICATION FOR DISMISSAL OF ACTION Order 11 rules,75,76,78,79
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. O11.
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 application made by a defendant or by a person who can
swear positively 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 the
action is frivolous or vexatious. Thereafter the procedure is the same as for court applications as in
order 32 of the HC Rules.
What is meant by frivolous or vexatious?
Wood NO v Edwards 1968 (2) RLR 212-The procedure was intended to apply to actions which
were manifestly groundless or improbable and no decision on the probabilities of the case should be
given. The same principles apply as in summary judgment.
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.
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.
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 on 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 Order 20
In terms of R132 pleadings may be amended with the consent of all parties or if they fail to have
consent there 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’s 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.
See 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 that
“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 i.e. prevent inquiry. But within those limits the court
has wide discretion. For pleadings are made for the court and not the court for pleadings”.
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 Held: Generally an application to amend a pleading will
be allowed unless it is mala fide 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. On the facts it was held that the amendment sought by the plaintiff
would introduce a new cause of action which will call for a fresh plea from the defendant. Hence 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.
See Trans African Insurance Co v Maluleka 1956 (2) SA 273 AD
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 and it must not be mala fide.
DD Transport (Pvt) ltd v Abbort 1988 (2) ZLR 92-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 contract 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
represented 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
mala fide.”
Held: Although the court a quo was wrong to disbelieve the affidavit of the Legal Practitioner the
defendant had 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.
PROCEEDINGS BY WAY OF APPLICATION Order 32
Application can either be interlocutory or preliminary or can be application incidental to the main
proceedings.
On notice or Ex Parte
An application on notice is usually a court application and this is an application in writing to the court
on notice to all interested parties and it is heard in open court whether opposed or not and judgment is
delivered in open court.
An ex parte application is used:

When the applicant is the only person who is interested in the relief that is being claimed,

When the relief sought is a preliminary step in the proceedings,

When, though other persons may be affected by the court’s order, immediate relief is essential
because of the danger or because notice may precipitate the very harm the applicant is trying
to forestall.2
In terms of the Rule 242 an ex parte application is made if the applicant reasonably believes one or
more of the following
(a) that the matter is uncontentious in that no person other than the applicant can reasonably be
expected to be affected by the order sought or object to it;
(b) that the order sought is—a request for directions; or to enforce any other provision of the
rules in circumstances where no other person is likely to object; or
(c) that there is a risk of perverse conduct in that any person who would otherwise be entitled to
notice of the application is likely to act so as to defeat, wholly or partly, the purpose of the
application prior to an order being granted or served;
(d) that the matter is so urgent and the risk of irreparable damage to the applicant is so great that
there is insufficient time to give due notice to those otherwise entitled to it;
(e) that there is any other reason, acceptable to the judge, why such notice should not be given.
2
Herbstein & Van Winsen at page 232
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 matter should be heard ex parte. If the applicant is legally represented
a certificate from a LP is required which also sets out the reasons that the matter falls within the
provisions of Rule 242(1).
Court Application or Chamber Application
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) provides 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 all other circumstances the application
is a court application.
General Rules Applying to Court and Chamber Applications- Rule 227.
Basically all applications and the opposition 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 be numbered
consecutively R227(1)(c). Numbering documents consecutively in a page is called paginating.
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).
Every written application shall contain a draft of the order sought. R227(3).
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 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 condone 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.
Procedure for Court Application
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 modification.
Form 29-The applicant will file with the Registrar and serve a copy of the form on the respondents.
Requirements for service is in R231(1). If you do not serve an affidavit then you do not use it in
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’s 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 no other affidavits can be filed except with the leave of the court or judge
R235.
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 want 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 the 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 in 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.
Procedure for Chamber Application
The application 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 another 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 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.
ZIMDEF (Pvt) Ltd v Minister of Defence and Anor 1985 (1) ZLR 146
A legal practitioner can then file 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 delay R245.
The powers of the judge in chamber application
(a) 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).
(b) the judge may require either party’s 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 service is not 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 interested person 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.
There are specific provisions relating to Deceased Estates and Persons under Disability R248 and 249.
In case of deceased estate, provisional insolvent estate or provisional liquidated company, papers to
be served on Master. Rule 248
In case of person under disability (including minor) must first make chamber application for
appointment of curator, papers then served on curator who prepares report. Rule 249 (1)(2) and (3)
Time for notice of opposition runs from date of service on Respondent of curator’s report. Rule 294
(4)
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 allow the registrar of deeds to make a
report on the matter if he considers it necessary of if the court requires such a report.
MISCELLANIOUS PROCEDURES
PROVISIONAL SENTENCE
(i) 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 court relied on Memel
Board of Executors v Lardinar 1930 OPD 197, where the court said the procedural method
of provisional sentence is no magic want used to 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.
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 document.
ii.
The defendant must be unable to adduce such counter proof or evidence as will satisfy the
court that 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 contains 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 sound in 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.

Extrinsic evidence may be allowed on ancillary items which is ancillary to the obligation i.e.
bank cheques, insurance premiums etc. See Prudential Building Society v Reynders 1941
WLD 29

When payment of the debt is conditional 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 in this
case it was held that 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. The court went on to give a general definition of simple
condition: it connotes a condition or 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.
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

show that the probabilities of success are against the plaintiff. See Maimba v Nyagura HH
394/84 Held that 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.
There are exceptions for the principle that onus lies with the defendant-where he denies the signature
on the acknowledgement of debt the onus shifts on to the plaintiff to prove the signature on the
document.
See also Donkin v Chiadzwa HH 217/87-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 the matter finally. If the defendant is unsuccessful
in opposing provisional sentence 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 action R28.
If the defendant does not enter appearance to defend within one month the judgment becomes final.
R28.
If the plaintiff wants to execute the judgment given he 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 judgment 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 provisional sentence
is refused the court will order the matter to proceed to trial and the summons of provisional sentence
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 Order 30 rule 205-211
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 debtor.
ii.
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 must give notice to the parties and the notice would state the nature of the liability,
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 state that the applicant is applying for the court’s decision as to his liability or the validity
of the respective claim R207.
The applicant would deliver with the interpleader notice an affidavit and in that affidavit state that:
i.
claims no interest in the subject matter in dispute other than the charges and costs.
ii.
T does not collude with any of the claimants
iii.
Is willing to deal with or act in regard to the subject matter in dispute as the court may direct
R. 208
R206 gives duties of the applicant in relation to the subject matter pending decision by the court. If
the subject matter 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 and Order 32 will apply.
Powers of the Court R210
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 cannot 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 decide who has onus?
If its property attached by the deputy sheriff and the property was in the possession of the judgment
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.
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.
ARREST TAMQUAM SUSPECTUS DE FUGA Order 36 Rule 278-292
It is a procedure available where a debtor is about to flee from the jurisdiction of the court in order to
avoid payment of the debt.
Purpose of arrest
There is need to distinguish between this arrest and arrest of civil imprisonment. The arrest is to
ensure that debtor remains in jurisdiction until judgment obtained. Civil imprisonment arrest is to
ensure debtor performs the judgment. Stayn v Bolus & Co. 1915 EDL 60
The procedure is not available:
(a) Where respondent is peregrinus. Green v James 1973 (4) SA (R) at 114.
(b) Where amount involved is less than the prescribed minimum.
(c) Where summons has already been issued.
Procedure:
Applicant must establish to Judge or Registrar by Affidavit:
i.
Good cause of action against respondent for the amount of which is not less than the
prescribed minimum, Rule 278 (1)(a) see Henderson v Zimnat Insurance Co. 1981 ZLR
180.
ii.
There is good ground for believing that respondent is about to remove himself from
Zimbabwe for the purpose of evading payment of debt. Getaz v Stephen 1956 (4) SA 751.
iii.
The absence of respondent from Zimbabwe will materially prejudice the plaintiff in the
prosecution of his claim. Rule 278;
Registrar will issue Writ. Rule 280 and Form 31. Before the issue of any such writ, the plaintiff shall
file with his application or, where the writ is to issued by the registrar, shall lodge with the registrar an
affidavit sworn to by the plaintiff, or his agent, or his servant, in which shall be set forth all facts
which would justify with the judge or the registrar, as the case may be, in issuing or refusing to issue
the said writ, and in particular the following—
(a) the sum alleged to be due to the plaintiff by the defendant, when it became due and the cause
thereof;
(b) whether or not the plaintiff holds any security for the alleged debt, and, if he does, the nature
and value thereof;
(c) that the deponent believes that the defendant is about to remove from Zimbabwe, and the
grounds of such belief;
(d) the steps, if any, which the plaintiff has already taken to enforce his claim.
Writ has two functions: Commands arrest of defendant and that he be brought before courts on return
date; and Sets out claim as in Summons
Execution and Service of Writ is in terms of Rules 281 & 282 respectively. A writ of arrest may be
executed on any day and at any hour and at any place. Provided that such a writ shall not be executed
against a member of Parliament or an officer of Parliament while such member or officer is in actual
attendance on Parliament or any committee thereof; or a person entitled to immunity from personal
attachment under the Privileges and Immunities Act [Chapter 28]; or a person upon whom immunity
from personal attachment is conferred by any other law. In terms of rule 282 it is the Sheriff or his
lawful deputy who serve the writ of arrest on the defendant.
When respondent can be released – Rules 283, 284, 290 and 292. If the debtor pays to the Sherriff any
amount claimed by the creditor he is entitled to be released or if he pays security he is entitled to be
released.
Once a person is arrested he is given an opportunity to appear in court to seek his discharge. Rule 287.
Respondent may anticipate return day – Rule 287.
When applicant entitled to final judgment- see Kearney v Joubert 1976 (2) RLR 203
When respondent not entitled to release – Rule 291 and Getaz v Stephen above at 753
IN FORMA PAUPERIS Order 44 rule 393-397
It is a procedure which allows a person without means to institute or defend proceedings in the High
Court. It is normally available to people who are normally resident within the jurisdiction of the court
and who satisfy the means test.
To qualify for leave to use or defend in forma pauperis applicant must establish:
i.
That normally resident within jurisdiction of the Court, Rule 393 (1). See Ex Parte du Preez
1964 (2) S.A. 227 (R).
ii.
That he satisfies the means test. Rule 394 (1)(a). see Boulton v Boulton 1973 (1) S.A 369 (R)
Joseph v Joseph 1958 (4) S.A. 85 (R), Zimunya v Zimunya H.H. 378/84
Procedure:
Applicant approaches the Registrar and makes a request to Registrar who refers applicant to legal
practitioners and if in doubt request report from Social Services. Rule 393 (1) & (2)
Legal Practitioner must enquire into Applicant’s means and the merits of his case (prima facie case.
Rule 393 (3). See Chichoni v Food Industries (Pvt) Ltd HH 63/91
If Legal Practitioner satisfied then applicant files affidavit of means and statement that local
practitioner will act gratuitously. Rule 394 (1)
Legal Practitioner cannot thereafter withdraw or settle the proceedings or renounce his agency without
leave of a judge. Rule 395(1). In the Chichoni case (supra) it was held that a legal practitioner should
not have been appointed to act IFP and that he should not have accepted to act IFP if he was satisfied
that the applicant had no cause of action. Because of the irregularities he was allowed to withdraw.
If unsuccessful costs can be awarded against IFP litigant if successful other side will be ordered to pay
costs and IFP legal practitioner can then recover costs. Rule 395
REVIEW
See Section 26 of the High Court Act and Order 33 of the HC Rules.
Purpose
To set aside or correct decisions of inferiors courts, tribunals and administrative authorities.
Jurisdiction to Review
Sec 26 of H.C Act provide that subject to the Act and any other law, the High Court has power,
jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice,
tribunals and administrative authorities within Zimbabwe.
Differences between Appeal/Review
Two main differences:
i.
Appeal - based on record of proceedings appealed against.
Review -Court may go outside record and hear extrinsic evidence.
ii.
Appeal -deals with the substantial correctness of the decision
Review -seeks to deal with procedural irregularities.
Grounds for Review
Sec. 27 (1) of the H.C. Act;
a. Absence of jurisdiction on the part of the court, tribunal or authority concerned.
Witham v Director of Civil Aviation & Another 1983 (1) ZLR 52, Cluff Mineral Exploration
(Zimbabwe) Ltd v Union Carbide Management Services (Pvt) Ltd. & Ors 1989 (1) ZLR 224
b. Interest in the cause, bias, malice or corruption on the part of the presiding officer.
Austin & Anor v The Chairman of the Detainees’ Review Tribunal & Anor 1988 (1) ZLR 21
c. Gross irregularity in the proceedings or decision.
Abbey Estates & Investments (Pvt) Ltd. v Property Renting Corp (Pvt) Ltd. 1981 ZLR 39
Ministry of Labour, Manpower Planning etc v P.E.N. Transport (Pvt) Ltd 1988 (1) ZLR 293
Power of Court
Court may confirm, set aside or correct the decision or proceedings. See Sec. 28 of HC Act. Coke v
Estate Agents Tribunal 1972 (1) RLR 315
The court usually sets aside and remits to Court a quo. Abbey Estates case supra.
But may correct in exceptional circumstances. See Director of Civil Aviation v Hall 1990 (2) ZLR
354
Procedure:
Order 33 HC Rules
Application filed and served on the presiding office of the proceedings under review and all other
parties affected. Rule 256
Proceedings to be instituted within 8 weeks of the decision or termination of the proceedings under
review. Rule 259
Cluff Mineral Exploration (Zimbabwe) Ltd & Ors v Union Carbide Management Services (Pvt)
Ltd. & Anor. 1989 (3) ZLR 338, Vrystaat Estates (Pvt) Ltd v President Administrative Court
& Ors 1991 (1) ZLR 323
Notice must state grounds and exact relief required. Rule 257
Minister of Labour, Manpower & Ors v P.E.N. Transport case supra
COSTS
A court hearing a matter can award a litigant his/ her costs of the proceedings
Purpose:
The purpose of an award of costs to a litigant is to indemnify him for the expense to which he has
been put through having been compelled to initiate or defend proceedings.
See Kerwin v Jones 1958 (1) SA 400 (S.R) at 401 – 2
However, in practice, an award of costs is seldom a complete indemnity.
Main Categories of Costs
1. Party and party costs
Party and party costs are those costs which are awarded by the Court to the successful party in an
action. They are assessed using the relevant court tariffs. These tariffs may be amended from time to
time.
2. Attorney and Client are those costs -which costs a legal practitioner is entitled to recover from
his client for professional services rendered by him. These costs are payable by client
whatever the outcome of the matter and are not dependant on award of costs by the Court.
They include costs which although not necessary are incurred at request of client.
Others categories of costs
(a) Reserved Costs. These are normally awarded in interlocutory proceedings. The question of
costs will be determined by the court that will ultimately dispose of the matter.
(b) Wasted Costs. These are costs that are wasted as a result of either postponement of
proceedings or other delay. The party responsible for the delay or postponement will be
ordered to pay the wasted costs. They do not cover all costs of the delay.
(c) Costs in the Cause. Usually awarded in interlocutory proceedings. Their effect is that whoever
succeeds when the matter is finally disposed of will recover both the costs of the main
proceedings and the costs of the interim proceedings.
(d) Security for Costs. This where a party is required to furnish security for costs which will be
incurred by the other party.
(e) Costs De Bonis Propriis. These are awarded against a legal practitioner in his capacity where
the court wants to make its displeasure at the legal practitioner’s conduct. See Washaya v
Washaya 1999 (2) ZLR 105, York Cottages (Pvt) Ltd v Industrial Steel & Pipe Ltd &
Anor HH 214/91
Rules in relation to award of costs
The award of costs is a matter wholly within the discretion of the Court. Court will be guided by the
following rules:
a) As a general rule successful party entitled to costs. Court looks to substance of judgment not
its form in deciding who is a successful party.
b) Court can for good reasons, deprive successful party of costs in whole or in part.
Municipality of Buluwayo v Zimbabwe Football Association S 172/89
Moyo v Minister of Lands, Agriculture & Rural Ressetlement & Anor S 112/91
Musara v Air Zimbabwe HH 260/91
c) Court can, for good reason, order successful party to pay other party’s costs, in whole or in
part.
d) Court, can, in special circumstances order unsuccessful party of pay costs of successful party
on attorney and client basis.
Nel v Waterberg Land Bouwers K-op, Vereniging 1946 A.D. 597, Gwinyayi v Nyaguwa 1982 (1)
ZLR 136, Muhaka v Vander Linden 1988 (2) ZLR 331, Samkange & Anor v The Master &
Anor HH 63/93
Herbstein & Van Winsen pages 487 and 488.
SECURITY FOR COSTS
When can security for costs be ordered:
Court has inherent jurisdiction to order applicant/plaintiff to give security for costs. Court will
consider all relevant circumstances of each particular case.
The circumstances in which security for costs may be ordered by court fall into following classes:
(i) Whether plaintiff a peregrinus. If he is has to provide. CRE Insurance Ltd v Chisnall 1981
ZLR 331
(ii) Where plaintiff is a limited liability company. Sec 350 of Companies Act. (Cap. 24:03)
(iii) Where action is frivolous or vexatious and assumes that the defendant has not sought its
dismissal. Western Assurance Co. v Caldwell’s Trustee 1981 AD 262
(iv) Where plaintiff is nominal. Mears v Brooks Executor 1906 T.S. 546, Pillemer v Isreal
Stam & Shartin 1911 WLD 158
Procedure:
Application on notice to defendant following demand. As soon as possible after action instituted.
Amount of security fixed by Court or referred to Registrar.
If the order is granted the matter is stayed until security is provided. Stern & Another Warren 26
S.C. 131
TAXATION OF COSTS Order 38
This is the process where a court official known as a taxing officer examines a party’s bill of costs in
to see if it will be in conformity with the relevant tariff.
Every registrar is a taxing officer for the purpose of taxing costs and may designate such persons as he
deems fit and for whom he shall be responsible as assistant taxing officers. Rule 306(1)
When Taxation Necessary
Unless amount of costs agreed between the parties, the costs must be taxed by the Taxing officer
before they can be recovered.
Procedure:
Party wanting to recover costs must draw up detailed statement of account for his fees and
disbursements (known as a bill of costs) in accordance with the relevant tariffs.
Tariff in respect of any judicial proceedings is set out in Second Schedule to High Court Rules.
Tariff in respect of work done in connection with any other matter is set out in Law Society Tariff.
Rules 308 (2) & (3)
Tariff in respect of charges for witnesses and qualifying expenses set out in Third Schedule to High
Court Rules. Rule 310 (1) & (2)
Thereafter the party may then appear before Taxing officer with / without other party given notice to
justify bill of costs or on a minimum of 3 days notice to other party where not by default in which
case other party may also be present at taxation to raise objections.
Cost allowed on taxation
Taxation officer allows all costs charges and expenses as appear to him necessary or proper for the
attainment of justice or defending the rights of any party. Rule 307
The taxing officer may, without filing any formal documents, submit any point arising at a taxation
for decision by a judge in chambers, and it shall be competent for the taxing officer and for the legal
practitioners who appeared at the taxation to appear before the judge respecting such point. Rule 313
Review of taxation-Rule 314
EXECUTION/ ENFORCEMENT
WRIT OF EXECUTION
There is no execution against the State-S.4 of State Liabilities Act
There is no execution on certain property-S.21 of H.C. Act. These include:
(a) the necessary beds, bedding and clothing of such person or of any member of his family;
(b) the necessary furniture of such person, other than beds, and household utensils in so far as
they do not exceed in value such sum as may be prescribed in rules of court;
(c) stock, tools and implements necessarily used by such person in his trade or occupation in so
far as they do not exceed in value such sum as may be prescribed in rules of court;
(d) food and drink sufficient to meet the needs of such person and the members of his family for
one month;
(e) professional books, documents and instruments necessarily used by such person in his
profession in so far as they do not exceed in value such sum as may be prescribed in rules of
court.
General
Order 40 Rule 322 – 33 and Forms 34 – 41
There is no execution on superannuated judgments.Rule 324
No attachment of immovable property, (unless it has been declared executable), until movables
exhausted. Rule 326
Notice to be given by Sheriff before ejectment or removal of goods unless fear of perverse behaviour.
Rule 326A
It is a criminal offence to obstruct Deputy Sheriff, make false declarations relating to property or to
dispose of or remove goods under attachment. Section 22 of the High Court Act
Sheriff may require security if he is in doubts as to the validity of the attachment. Rule 329
Participation in proceeds of sale in execution. Rule 331 (1), (2) and (3).
Movables Order 40 Rule 334 – 345
The sheriff or his deputy may by virtue of a writ of execution seize all kinds of movable property,
including money and bank – notes. Incorporeals can be attached with the exception of salary. Rule
343 (1)
Except with leave or agreement, movable property is to be sold at public auction for cash or to the
highest bidder. Rule 338
Sale in execution must be advertised. Rule 338
Immovables Order 40 Rule 346 – 367
Requirements on service. Rule 347 (1) and (2) & Forms 43, 44 or 45. The method of attachment of
immovable property, including a mining claim, should be by notice by the Sheriff or his deputy
served, together with a copy of the writ of execution, upon the owner of the property; and the
Registrar of Deeds or officer charged with the registration of such property.
Advertisement of Sale-Rule 352 The sheriff or his deputy must cause the sale to be advertised at least
once in the Gazette and in a newspaper circulating in the district in which the property is situated and
in such other manner as he may deem to be necessary. The sheriff shall also send to each holder of a
mortgage over the property, by registered letter addressed to his last known address, or to his attorney,
notice of the date and venue of the sale.
R353-Conditions of sale. The conditions of sale shall be prepared by the sheriff, but it shall be
competent for the execution debtor or any other person having an interest in the sale to apply to a
judge in chambers, after due notice to the sheriff, for amendment of such conditions.
R354. Sale by auction without reserve
Sale by Public auction without reserve dealt with in Rule 354
Declaration that highest bidder purchaser-Rule 356
Rule 358 (1) & (2) deals with when Sheriff may sell by private treaty.
A sale can be set aside in terms of Rule 359 see Bhura v Lalla 1974 RLR 31, Cohen v Cohen 1979
(3) S.A 421 (R), Butters v Anor v Guterness & Others 1978 RLR 444
A sale can also be stayed on application by debtors or members of family.
When sale can be confirmed is provided for in Rule 360
Plan for distribution and distribution of money-Rule 363 – 366
When sale can be stayed was looked at in Cohen v Cohen 1979 (3) SA 420 (R), Chibanda v King
1983 ZLR 116.
GARNISHEE ORDERS Order 42
A judgment creditor who has obtained a judgment or order for the recovery or payment of money,
which judgment or order is unsatisfied, may make a court application for an order that any money at
present due or becoming due in the future to the judgment debtor by a third party within the
jurisdiction (called “the garnishee”) shall be attached. R377.
Requirements
1) Judgment creditor with judgment/order for recovery/payment of money; and
2) Judgment/order unsatisfied, and
3) Money at present due or becoming due in future by garnishee order to judgment debtor.
Order 42 Rule 377
See Simpson v Standard Bank of S.A. Ltd 1966 (1) S.A. 590, Muvengwa v Matarutse & Another
1968 (2) ZLR 300, Honey & Blanckenberg v Law 1965 ZLR 685
Procedure:
There is need for a preliminary notice of application where State is garnishee in terms of Rule 377A
(1)
Rule 378 (1) The court application calls upon the garnishee and the judgment debtor to show cause
why the debt sought to be attached should not be attached, and is supported by an affidavit by the
judgment creditor or by his attorney stating that judgment has been recovered or the order made, and
that it is still unsatisfied, and the grounds for the knowledge or belief of the deponent that the
garnishee is or will be indebted to the judgment debtor.
There should be attachment of Notice received from garnishee to the Court Application where
garnishee is State. Rule 377 A (2)
Service of Court Application is provided in Rule 379 (1) and (2) and 380. The court application must
be served on the garnishee and on the judgment debtor and the procedure laid down by Order 32 is
followed
Service of Court Application on garnishee binds debt in garnishee’s hands but note proviso where
garnishee in State. Rule 383 and 384
Court may order payment by instalments, will take into account amount required for maintenance of
judgment debtor and dependents. Rule 385
Payment made by garnishee is valid discharge to him as against judgment debtor. Rule 386
In cases where the garnishee fails to comply with order see African Distillers Ltd. & Other v John
Plagis Bottle Store 1972 (1) ZLR 171, Mugabe, Mutezo & Partners v Barclays Bank of
Zimbabwe Ltd & Anor 1989 (3) ZLR 162.
CIVIL IMPRISONMENT-ORDER 41
When the Deputy Sherriff’s return of service pursuant to a writ of execution is that the judgment
debtor or defendant has no sufficient goods to satisfy the judgment debt or if is a nulla bona return the
judgment creditor may cause to be issued summons commanding the judgment debtor to pay the
amount and unless he does so should appear in court on the return day of the judgment to show cause
why an order of personal attachment should not be made against him/her. The summons is in Form
No. 46.
There should be personal service of the summons on the debtor R374.
On the return date an inquiry will be made by the court as to the means and evidence will be given
orally or written.
If after the enquiry the court is satisfied that the failure is wilful, an order can be made.
Imprisonment is for a maximum period of three months. In terms of R370B, The court shall not order
the imprisonment of a judgment debtor for a period exceeding three months unless the court considers
that there are special circumstances which justify imprisonment for a longer period.
Where there are two or more orders of personal attachment and imprisonment against the same debtor
such orders are cumulative, with effect according to priority of issue of the respective writs of
personal attachment, unless otherwise directed by the court. R372
CONTEMPT OF COURT
One should note the distinction between criminal contempt of court and civil contempt of court.
Civil Contempt
Onus on applicant to establish
1. Has obtained an order ad factum praestandum (i.e an order to do, or abstain from doing a
particular act, or to deliver a thing)
2. Order served or came to personal attention of respondent.
3. Respondent has failed to comply with order.
Onus then passes to respondent to rebut inference of contempt. Can do this be establishing was bona
fide. See Haddow v Haddow 1974 (1) RLR 5
Procedure
Provided for in Order 43 Rule 388 – 392
The institution by a party of proceedings for contempt of court shall be made by court application.
Form 48. Such court application must set forth distinctly the grounds of complaint and shall be
supported by an affidavit of the facts. Where proceedings are instituted at the instance of the court
mero motu the notice shall be issued by the registrar and no affidavit of the facts is necessary.
Where the court or a judge orders a person to be committed to jail, or imposes a sentence of
imprisonment for contempt of court, the registrar shall furnish the sheriff or his deputy, or a constable
or other peace officer, with a writ of personal attachment and committal to prison in Form No. 49.
Immediately on delivery of such writ the sheriff or his deputy, or any constable or other peace officer
to whom it is delivered, shall execute the same. R392
See Sabawu v Harare West Rural Council 1989 (1) ZLR 47.
Contempt must be purged before applicant can have access to the court. Sabawu case
APPEALS
Procedure for noting and prosecution of appeals from the Magistrates Court
The High Court has jurisdiction to hear and determine an appeal in any civil case from the judgment
of any court or tribunal from which in terms of any other enactment an appeal lies to the High Court.
As such an appeal from the Magistrates Court lies to the High Court. See Section 30 HC Act.
In terms of Section 30(2), unless provision to the contrary is made in any other enactment, the High
Court shall hear and determine and shall exercise powers in respect of an appeal referred to it in
accordance with the Act.
On the hearing of a civil appeal the High Court has the power to confirm, vary, amend or set aside the
judgment appealed against or give such judgment as the case may require; it may also give an order, if
it thinks the order or direction is necessary or expedient in the interests of justice. See Section 31 of
the HC Act.
Where an appeal to the High Court in any civil case involves a question of law alone, a judge of the
High Court may, if he thinks fit, request the parties thereto to state the question for determination by
the High Court. Upon the request being made the parties shall, if they are able to agree thereon, state
the question, together with all the circumstances under which that question has arisen, in such manner
and within such period as may be prescribed by rules of court. If the parties are unable to agree upon
the statement of the question and the circumstances under which it has arisen, they shall inform the
registrar of the High Court and thereupon the appeal shall be dealt with as if such request had not been
made. See Section 32 of the HC Act.
N.B. reference should be made to what is said on appeals under the Procedure of the Magistrates
Court especially on noting of appeals and on execution of judgment pending appeal.
The common law position is that superior courts have an inherent jurisdiction to regulate their
own procedures and process. Included in that jurisdiction is the courts’ power to order
execution of their judgments despite the noting of appeals a rule of practice therefore evolved
whereby the operation of the judgment of a superior court is suspended upon the noting of an
appeal against that judgment. See Wood NO v Edwards and Anor 1966 RLR 336 (G);
Whata v Whata 1994 (2) ZLR 277 (S). This common law rule is the same in South Africa,
see Reid v Godard 1938 AD 511: South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd 1977 (3) SA 534 (A).
In terms of this common law rule the party that succeeds in the court of first instance has to
seek the leave of the court to execute the judgment whilst the appeal is pending. However
inferior courts do not have this inherent jurisdiction to regulate their own process. The
power as to what inferior courts can do or cannot do is to be found within the four corners of
the Act that creates them, in the present case the Magistrates Court Act (Chapter 7: 10)
and in particular section 40(3) of the Act. The common law position that the noting of an
appeal suspends the judgment appealed against does not apply to the magistrates’ court. This
is because the court has the discretion to direct that a judgment is carried into execution or
suspended pending the appeal as provided for by section 40 (3) of the Magistrates Court Act
THE PROCEDURE OF THE SUPREME COURT
NOTING AND PROSECUTION OF APPEALS FROM THE HIGH COURT
Appeals from the High Court go to the Supreme Court. See Section 43 of the High Court Act on the
right to appeal and parts i, ii, iii and v of the Supreme Court Rules.
Which judgments or orders can be appealed against?
See Section 43.
Certain judgments / orders of the High Court are not appealable at all- see section 43(2) (a), (b), (c)
and (d) subject to exceptions.
Certain judgments/ orders are only appealable with the leave of the court/ judge who granted the order
or if the leave is refused, with the leave of a judge of the Supreme Court. Section 43(2)(d)- these are
mainly interlocutory orders but there are exceptions e.g. liberty or custody or interdicts or where there
is a special case.
Certain judgments are appealable.
Procedure for Appeal
Application for leave to appeal made orally or in writing within 12 days of the judgment. If the 12
days have expired one can seek condonation of the late application for leave to appeal. If leave to
appeal is refused one appeals to the Supreme Court. If out of time within which to note an appeal
must seek leave to appeal out of time- Rule 31 SC Rules. Rule 3 provides for the calculation of time
and it excludes Saturdays, Sundays and public holidays. The time is within 15 days where leave is not
required and if leave is required and has been granted within 10 days of the granting of the leaveRule 30(b). If leave is necessary and has been refused make an application within 10 days of the
refusal. Can also apply for condonation of late noting/ leave to appeal out of time.
Factors taken into account when considering application for condonation are:

The extent of the delay- the court considers two periods of delay, delay in noting the appeal
and delay in seeking condonation itself.

Reason for the delay- there must be a reasonable explanation.

Whether there are reasonable prospects of success on appeal.
See De Kuszaba-Dabrowski et uxor v Steel NO 1966 (1) RLR 60, Ellis and Whaley v Marceys
Stores Ltd 1983 ZLR 17, Mutizhe v Ganda & Ors S17/09.
Procedure for noting appeal
An appeal must be noted timeously or upon condonation- Rules 30&31 SC Rules.
Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his
legal representative, which shall state —
(a) the date on which, and the court by which, the judgment appealed against was given;
(b) if leave to appeal was granted, the date of such grant;
(c) whether the whole or part only of the judgment is appealed against;
(d) the grounds of appeal in accordance with the provisions of rule 32;
(e) the exact nature of the relief which is sought;
(f) the address for service of the appellant or his attorney.
The notice of appeal shall be served on the registrar, the registrar of the High Court, and the
respondent.
See Rule 29(1)(a)-(f) and Practice Note 1/13.
Record of proceedings and security for Costs
The record is prepared by the Registrar of the High Court and the Registrar requires from the
appellant an amount to cover the estimated costs of the preparation. The Registrar in his/ her
discretion might accept a written undertaking to pay. Appeal will lapse if payment is not made or
undertaking not accepted. Rule 34(5) SC Rules.
Appellant can apply to reinstate the appeal providing an explanation as to why they did not pay. See
Muhaka v Van der Linden 1988 (2) ZLR 338, Maheya v Independent African Church 2007 (2)
ZLR 319.
Registrar prepares the record and delivers certified copy and three other copies (or more if required)
to the Registrar of the Supreme Court. Rule 34(2) & (4) SC Rules.
Appellant if requested must provide security for the Respondent’s costs of appeal within one month of
the filing of the notice of appeal. Rule 46 as read with Rule 36(1), (2)&(3).
Appeal may be dismissed for failure to provide security. See Chitsaka and Ors v Public Service
Association S 14/94.
Registrar notifies the appellant’s legal practitioner as soon as he receives the record and calls upon
them to file Heads of argument within 15 days and serve on the respondent. Appeal will be regarded
as abandoned and deemed to be dismissed if heads are not filed timeously-Rule 33.
Respondent must file his own Heads within 10 days of receiving appellant’s Heads.
The Registrar will set the matter down on at least 4 weeks’ notice upon receipt of appellant’s Heads.
Rule 43 as read with Rule 55.
Powers of the Supreme Court on Appeal
See section 22 of the Supreme Court Act.
The court can confirm, vary or set aside the decision appealed against.
If there is no appearance the court can dismiss the appeal- see Rule 36(4)&(5) of the SC Rules.
Miscellaneous matters relating to appeals from the High Court
At any time the respondent in an appeal or in a cross- appeal may, by notice given to the registrar and
the opposite party, abandon the whole or any part of the judgment appealed against. See Rule 33(3) of
the SC Rules.
Execution of judgment pending appeal- The High court has inherent jurisdiction to order execution of
judgment pending appeal. In deciding whether to order execution the court considers:

Possibility of irreparable harm or prejudice being sustained by either party.

Prospects of success on appeal, specifically whether the appeal is frivolous and vexatious.

The equities of the case and the balance of hardship- in a situation if execution is ordered
appellant suffer harm or respondent may suffer harm if execution is ordered.
See Dabengwa & Anor v Minister of Home Affairs & Ors 1982 (1) ZLR 223, Zimbabwe
Distance (Correspondence) Education College (Pvt) Ltd v Commercial Careers College (1980)
Pvt Ltd 1991 (2) ZLR 61.
New evidence on appeal-Court may allow new evidence on appeal. See section 22(1)(b) and Rule 39
SC Rules. In deciding whether or not to allow it the court considers whether:
 The evidence could not with reasonable diligence have been obtained for use at the trial / at
the proceedings in the lower court.
 The evidence is apparently credible.
 The evidence is such as would probably have an important influence on the result of the case.
 Conditions since the trial or hearing of the proceedings have not so changed that the fresh
evidence would prejudice the other party.
See Farmers’ Co-op Ltd v Borden Syndicate (Pvt) Ltd 1961 R&N 28, P v C 1978 RLR 80,
Mazodze v Mangwanda 2005 (1) ZLR 87 (S), Chitengwa v Manase 2009 (1) ZLR 179 (S).
Amendment of proceedings on appeal- Court can allow the amendment of pleadings on appeal.
See Bulford v Bob White’s Service Station (Pvt) Ltd 1972 (2) RLR 224, Sager’s Motors (Pvt)
Ltd v Patel RLR 207.
An amendment will not be allowed if it raises new questions of fact-see Ncube v Ndlovu 1985 (2)
ZLR 281.
Renunciation of agency by legal practitioner- Rule 12A of the SC Rules. The legal practitioner must
give at least three weeks notice or if agreed to less than six weeks notice of set down, one month’s
notice. Renunciation later than the prescribed time limit requires the leave of a judge.
Special orders as to costs- The court has wide discretion to order costs. It can give an order depriving
a successful party of all or part of his costs in the appeal; or ordering a successful party to pay all or
part of the costs of the other party in the appeal; or ordering a party to pay costs on a legal practitioner
and client scale or on any other appropriate scale. It can also award costs de bonis propriis. See Rule
12B of the SC Rules.
ANNEX 1
SUPREME COURT OF ZIMBABWE
PRACTICE NOTE NO. 1 OF 2013
THE CHIEF JUSTICE, THE HONOURABLE MR JUSTICE G. G. CHIDYAUSIKU, HAS
ISSUED THE FOLLOWING PRACTICE NOTE
With effect from the date of issue, the Registrar of the Supreme Court shall not accept for
filing all notices of appeal in civil cases from the High Court which do not comply with the
provisions of Rules 29, 34 and 46 of the Supreme Court Rules, 1964 and in particular, in the
following respects:
1. The appellant must file six copies of the notice of appeal.
2. The notice of appeal must be signed by the Appellant or his Legal Practitioner.
3. The name of the court a quo should be stated.
4. The date of the judgment appealed against must be stated.
5. If leave to appeal is required the order granting leave to appeal must be attached on the
notice of appeal.
6. The appeal must be noted within fifteen (15) days of the judgment appealed against and
if leave to appeal is required, within ten (10) days of the granting of leave to appeal. If leave
to appeal is required but has been denied, the notice of appeal against refusal of leave must be
filed within ten (10) days of that denial of leave.
7. The notice of appeal should indicate whether the appeal is against the whole judgment or
part of the judgment.
8. The grounds of appeal must be clearly stated.
9. The relief sought on appeal must be stated.
10. The address for service for the Appellant must be stated.
11. The notice of appeal must contain an undertaking to pay costs of the record where
estimated costs have not been paid.
12. The notice of appeal must offer security of the respondent’s costs of appeal.
13. The notice of appeal must be addressed to the registrar of the High Court.
14. The notice of appeal must be addressed to the respondent(s).
Issued on 5 February 2013