CHAPTER ONE

CIVIL PROCEDURE THE LOWER COURTS

LL.B (HONS) PART II
CIVIL PROCEDURE

INTRODUCTION

(a) DISTINGUISHING CIVIL PROCEEDINGS FROM OTHER

PROCEEDINGS

The major distinguishing feature between civil proceedings and other

proceedings is that civil proceedings are between persons i.e they
govern relationships between persons.

i) Who are persons?

- human beings
- legal persons e.g companies, trusts, partnerships,
associations, governments etc.

ii) What are the relationships between persons?

- contractual – all agreements
- family – marriage, divorce, inheritance, etc
- delictual – personal injury/loss
- commercial – business/trade
- property – proprietary rights
- labour – employment

iii) What basic laws govern these relationships?

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- General Law
- Customary Law

B. PURPOSE OF CIVIL LITIGATION

To prescribe matters of:

- restitution
- compensation
- damages
- enforcement of rights/obligations
- delineation of rights/obligations
- generally to govern procedures in personal relationships

CHAPTER TWO

STRUCTURE OF THE LOWER COURTS

Magistrates Courts

(Small Claims Court)

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Community Courts (Chiefs Courts)

Primary Courts ( Headman Courts)

1. Local Court Rules

2. Small Claims Court Rules
3. Magistrate Court (Civil jurisdiction) Rules
4. High Court
5. Supreme Court

CIV/03
LL.B (HONS) PART II
CIVIL PROCEDURE

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CHAPTER THREE

THE CUSTOMARY LAW AND LOCAL COURTS

REFERENCE:
1. Customary Law and Local Courts Act, Chapter 7:05 (Act 2/90)
2. Local Court Rules, S.I. 115/1991

DEFINITIONS. (Section 2 of the Act)

1. Customary Law: the customary law of the people of

Zimbabwe, or of any section or community of such people, before
the 10th June 1891, as modified and developed since then; section
2 of the CLLA.

2. Local Court: primary court or community court

3. Primary Court : a court constituted in terms of S10(1)(a) of the

Act. (See also S2 of S.I. 115/91)

4. Community Court: a court constituted in terms of S10(1)(b)

5. Presiding Officers: S11 & 12 of the Act

a. Primary Court: headmen or other person appointed by

Minister plus 2 – 5 assessors

b. Community Court: chief or other person appointed by Minister

plus 2-5 assessors.

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NOTE. The presiding officer has discretion on who to appoint as
assessor as he makes the list thereof, but he has no discretion to
dispense with assessors.

JURISDICTION

1. A local court is established by warrant published by the Minister

in terms of S10(1) of the Act. Therefore its jurisdiction is
prescribed by the Act in general and by the Warrant with particular
reference to its area of operation and any other limits the Minister
may place on its jurisdiction. S10(2).

2. S15 of Act. A local court shall have jurisdiction in any civil case
in which customary law is applicable, provided that:

a. The deft normally resides within Ct’s area of

jurisdiction

b. The cause of action or an element thereof arose

within such area

The deft. Consents to the Ct’s jurisdiction, if she/he does not reside
within the jurisdiction of the cause of action did not arise within the
jurisdiction

3. S16 however limits the jurisdiction given in S15 as follows

a. Where the claim is not determinable by customary law

b. Where the monetary value of the claim exceeds that laid

down by the Minister – Primary Court –

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c. Where the claim entails the validity, effect, interpretation,
of a will

d. Where the claim is for dissolution of a marriage except

marital relationships in an unregistered customary union

e. Where the claim is for custody or guardianship of children

f. Where the claim is for maintenance

g. And where the claim involves rights in land and immovable

property I a urban area

PROCEDURE

S17-25 of Act and S3-14 of S.I.115/91

1. COMMENCEMENT OF PROCEEDINGS

The Plf lays of a complaint and pays the prescribed fee the summons is
issued –

2. SUMMONS

a. In terms of S19 of Act, summons can be issued against the

defendant and witnesses who do not voluntarily avail
themselves before the Court.

b. Summons will be issued where the Defendant was not present

when the complaint was laid and it will be served by the
Messenger of Court. S.4 of S.I 115/91

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c. S5 S.I. 115/91 provides for summons and service thereof against
witnesses where a party is unable to persuade the witness to
come to Court.

NOTE: service of summons is normally the same as in other Courts

viz. personal services on a responsible member of Defendant or
witness household coupled with an explanation of the nature of the
case and the date and time of the hearing. However, while a
messenger can serve only a Defendant within the Court’s area of
jurisdiction, that limit does not seem to apply to witnesses.

 Summons can be issued to someone who is at least 16yrs of

age if the person intended to receive them is not there.

 For civil procedure the person who

makes the complaint is the plaintiff while
the other party is the defendant. That is
for the proceedings that involve actions.

 However for the proceedings of an

application there is an applicant and a
respondant.
 Nature of the case, date, time and place of hearing must be
explained.

3. CONDUCT OF HEARING

S20 of Act. Customary Law shall apply both as to procedure and

evidence and the proceedings shall be simple and informal as is

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 reasonably possible and best suited to do substantial justice to the
case.

4 Legal Practitioners shall not appear in Local Courts

a. S6 of S.I 115/91 provides that once the prescribed fees are

paid and the parties are present the hearing can commence.
However, should the Defendant be absent after proper service proved
to the presiding officer, then judgment may be granted without
hearing him. And where the Plaintiff is absent, and no advance
notification has been given to the Court, of his inability to attend due
to circumstances beyond his control, his case may be
dismissed.

b. S7.
- The defendant shall be clearly informed of the nature and
grounds of complaint against him.
- Each party shall be accorded a reasonable time and
opportunity to prepare and present his case to the court.
- All cases shall be heard in public save in terms of S7(3)
where the welfare of minors, public morality, protection of private
lives and the interest of justice or injury to person or property
may dictate otherwise.

c. S8. A matter may be postponed to a fixed date at the request

of the parties or the presiding officer’s initiative after consulting the
parties and assessors.
d. S21 of Act. A local court has power to remove and detain any
person in contempt of court arising out of willful insult during any

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sitting, or willful disruption of proceedings and further summarily
sentence the culprit to the prescribed fine.
e. S22 of Act and 12 of S.I. 115/91. A presiding officer may at
any time during the hearing stop proceedings (for lack of jurisdiction,
that customary law does not apply or for any good reason and
refer it to a magistrate for directions as to the transfer of the case
to another court.

f. S17 of the Act and 9 of S.I. 115/91. At the conclusion of the

hearing the court can grant any of the following orders or
combination thereof:
- Damages/compensation
- Specific performance
- Penal/punitive damages
- Costs
- Any order required by the justice of the case
Each order must specify the time within which it must be
complied with.

ENFORCEMENT (now dealt with in terms of the substituted section

15 of S.I. 17/2006)

S18 of Act and 10 of S.I 115/91

1. At the expiration of the compliance period, where the judgment

remains unsatisfied, the beneficiary thereof may register it with the
Magistrate within whose area of jurisdiction the local court falls, and
the Clerk of Court shall issue out a Warrant of Execution at his request.
(SI 17/2006). Where a warrant of execution/ejectment/delivery has

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been issued at the instance of the judgment creditor, form LC7 shall
apply.
2. But a judgement cannot be executed on if an appeal has been
noted.
3. And if two years have elapsed, no registration can be effected
unless an application has been successfully made to revive the
judgement.
4. Any satisfaction of a judgment in money, cattle or other property
must be made to the other party in the presence of the presiding
officer. If that party is unable to be present, then the presiding
officer may receive it and record his receipt of it and hand it over
as soon as possible. (S10(1)).

ENFORCEMENT (OF JUDGMENTS OF LOCAL COURTS)

Also dealt with in terms of SI 17/2006 which repeals section 15 of

S.I. 115/91 and substitutes it by establishing the forms to be used
for the following:

1. Warrant of execution/ejectment/delivery issued at the instance of

a judgment creditor, Form L.C.7 applies.

2. Notice of attachment in execution, Form L.C.8 shall apply

3. Warrant of execution against property, Form L.C.9 shall apply.

4. Warrant of delivery and execution against property has been

issued. Form L.C.10 shall apply.

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 The various forms mentioned above are set out in the said SI
117/06.

 Before chiefs could not enforce their own judgments

but now they can.

 Chiefs now issue a writ as a way of enforcing their

judgements which is usually by way of attaching
property.

 i.e writ is a warrant of execution against property.

APPEALS AND REVIEWS

APPEALS. S23-24 OF Act, SII of S.I. 115/91

1. An appeal from a Primary Court shall lie to a Community Court,

within whose area of jurisdiction the Primary Court falls (which
shall re hear the case) and must be made on 4 copies submitted
within 30 days of the decision together with the prescribed fee.

2. An appeal from a Community Court lies to the Provincial

Magistrate’s Court, within whose area of jurisdiction the
Community Court falls (which shall re hear the case and may
summon assessors) and must be made on 4 copies submitted
within 30 days of the decision together with the prescribed fee.
The 30 day period may be extended upon application on good
cause shown.

To hear an appeal denovo is to hear the matter afresh.

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When the matter is heard on appeal from these lower courts the
matter is heard denovo.

3. An appeal from the Magistrates Court shall lie to the High Court.

REVIEWS S25 OF Act

1. A review lies with the Magistrates Court within whose area of

jurisdiction a local court lies where it has come to the Magistrate
or the designated officer that a local court may have given an
order or judgment which it had no competency to give, provided
that such review is held within 12 months of the order/judgment.

2. A magistrate may annul the proceedings and direct that they be

heard de novo by the same or another court, set the proceedings
aside and return the case for rehearing on such directions as he thinks
fit, confirm the proceedings, or annul them.

3. Any action in terms of para cannot be taken unless the parties

have been advised and given the opportunity to make
representations.

4. An appeal can lie against the decision of the Magistrate herein as

if it is an appeal in a civil suit.

5. Where, on review, an order has been set aside or varied, the

party in whose favour the order or judgment was made shall refund
or restitute as is necessary to accord with the changed
order/judgment.

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Reviews and appeals can both be on principles of law.a

RECORD OF PROCEEDINGS

S13-14 of S.I. 115/91

Presiding officers shall ensure that a record of proceedings before

them is kept as well as other records.

FORMS

Summons

Notice of Appeal

Record of Case

Notice of Respondent (of appeal)

Transfer of case

CHAPTER FOUR

THE SMALL CLAIMS COURT

The Small Claims Court was established by the Small Claims Act
[Chapter 7:12]
A small claims court is not a court of record just like the customary law
courts but there is need for a record of what transpired.
Judgement of the court is to be signed by the presiding officer. A
record of the proceedings as required may be kept. The small claims
courts are open to the public. The process of the small claims court
shall be of force throughout Zimbabwe.

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Juristic and natural persons may appear in the small claims court as
plaintiff.

Parties may appear in person. Legal practitioners may represent

parties in the proceedings. However a minor may be represented by a
guardian or a legal practitioner,
A Company may be represented by a director or employee.

Jurisdiction
The small claims court shall have jurisdiction in respect of:
1 Persons resident in the province
2 Persons carrying on business or is employed in the province
3 Any person in respect of a cause of action that arose wholly I the
province
4 Any person who consents to the jurisdiction of the court.
5 Any action incidental to any proceedings to which any action is
instituted I the court
6 Delivery of any movable that does not exceed the monetary limit
$1000.00
7 Proceedings for arrear rentals
8 In determining the monetary value, the interest is not take into
account.
9 Proceedings for ejectment where the value of occupation does
not exceed the monetary value.

Small Claims Court Lacks Jurisdiction I the following cases.

1. Where Ministers, President and Vice Presidents are cited I their

official capacity.

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2 Matters determinable under the customary law e.g claim of
outstanding lobola.
3 A claim in which damages are claimed.
4 Cases in which claims for divorce are made, separation nullity of
marriages,
5 Cases involving the validity of a will whether written or oral.
6 Cases in which interdicts are sought. there are mandatory
interdicts and prohibitory interdicts. Prohibitory is that which prohibits
and the mandatory is that which compels an individual to act in a
certain manner.
7 Provisions ousting the jurisdiction of the small claims court shall
have no effect.

A party may abandon part of this claim in order to bring the claim
within the jurisdiction of the court.
Splitting of claims is disallowed.

Proceedings may be stopped by the presiding officer if s/he is of the

view that it has difficult questions of fact or law.

The small claims court may have parallel jurisdiction with any other
court.

Procedure in the Small Claims Court

The procedure I the small claims court is informal. Strict rules are not
followed.
Evidence may be adduced orally or in writing
Parties may cross-examine each other.
Witnesses may be called
Witnesses can also be cross-examined,

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An oath or affirmation shall be administered before a witness gives
evidence.
Children are admonished.
An interpreter may assist if required.

The plaintiff shall first deliver personally or by registered post a letter

of demand to the defendant. This requests the defendant to satisfy the
claim, failure of which action would be taken against him.

If defendant fails to satisfy the claim w/I 14 days the Plaintiff may
request the Clerk of the small claims court to issue a summons, which
specifies the claim and the date when, where the case is to be heard
and the time.
Plaintiff may serve the summons or may request the messenger of
court to serve on payment of the requisite fee.

Finality of judgement of small claims court.

The judgement of the small claims court shall be final. There is no

appeal against such judgement. A party may however request that the
case to be referred to the high court for review on any grounds.

NB: MAKE SURE YOU READ THE CUSTOMARY LAW AND LOCAL
COURTS ACT ESPECIALLY ON THE PART OF CHOICE OF LAW TO
BE USED BETWEEN CUSTOMARY LAW AND GENERAL LAW.

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CHAPTER FIVE

THE MAGISTRATES COURT

JURISDICTION

Every Magistrates Court has jurisdiction at general or customary law

according to S11(1) of the Magistrates Court Act.

(a) Persons

(i) Any person residing, carrying on business or employed within the

province.

What is meant by reside

I Ex Parte Minister of Native Affairs 1941 AD 53, it was held that

the word reside doe ot have a special meaning. The question whether
a person resides depends on the particular circumstances in the light
of general principle. The question is not one of domicile residence. A
person should e sued I the place where s/he is residing at the particular
time. Person caot e held to reside at a place temporarily visited. One
may be domiciled I one place ad resident I another. One is said to
reside at a place although he may e temporarily asset from that place
for short periods.
The person must have some interest ad reason for regarding it as his
habitation.

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1 Residence is not dependent on domicile.
2 Residence means a person’s home or place of aboard where one
sleeps.
3 A person can have more than residence. If suing such person,
must be sued where he is residing.
4 Mere temporary visits even where visits are periodical does not
mean residence
5 Persons of no fixed aboard are considered to reside at the place
where they spent the last six weeks or lesser period. Shorter
periods might be accepted.
6 Degree of permanency not fined. But person must have interest
in the place.
7 Corporations and juristic persons residency is place of business
or where general administration is centered.
(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

In respect of cause of action.
Where cause of action arises in their area of jurisdiction.
What is meant by cause of action?

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 (1)Every fact which is material and need to be proved in order it
does not mean every piece of evidence that one needs to
prove. E.g. if claim is based on contract material facts are
that there was a contract concluded.
(2)Terms of contract that there was a breach of contract if claim
based on delict.
(3)Material facts are commission of delict .damages arose as a
result of commission of delict.
(4)In respect of ejectment jurisdiction is restricted to the value of
the occupier. That value mustn’t exceed $ 10000
(5)Value right to occupy the property.
NB TO KNOW THIS CASE - Unguhart v Bruce 1974 (1) SA 350
Armed of proving value if on occupier. Where property is used for
purposes of other than business e.g. for residential.
If there is comparable premises available at same rental, value of
removal to other premises plus compensation for inconvenience
caused by moving if comparable premises are available at a
higher rental, the rental the value to occupier is difference in
rental calculated with the unexpired portion of the lease. Added
to it moving expense 3 years- 2 years $1000 -$ 1500

Business Premised
As far as business premise is concerned there is the case of
Langham Crt Pvt v Mavrematy 1954 (3) S.A 742
Value is cost of hiring other property at which he expects to
make the same profit. E.g one is paying rent of $ 1000 and only
going to get a tuckshop for $ 1 500.
2. Profit reasonably expected at disputed premises multiplied by
the unexpired portion of the lease.

Consent to jurisdiction.

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 Can have jurisdiction of mater otherwise out of jurisdiction
otherwise out of jurisdiction where debt consents to jurisdiction
in writing where not prohibited by s/14
3. Where parties agree in written memorandum.
4. Where there are more claims than one and each based on a
different cause of action. PLF can also abandon part of his claim and
abandonment must be explicit.
5. If a claim is abandoned and subsequent claim upheld in part only
and the abandonment takes effect from part not upheld. if you have a
claim of $ 10 500- and abandon $500-00 and result is $ 90000-00
assessment debt cannot say he will deduct $500-00 from PLF also
entitled to deduct amount owed by him to defy in order to bring claim
within jurisdiction of magistrates court.
6. S 11 (3) PROVIDES FOR UNLIMITED JURISDICTION IN RESPECT TO
CLAIMS UNDER TAX ADJUSTMENT Act and Tax Act.

(i) Liquid claims in the amount prescribed by the rules together with
interest thereon, (See also (g) re interest + costs)($50 million
maximum value)

(ii) Delivery/transfer/cancellation of agreement for any property

where value is in the amount prescribed by the rules ($50 million
maximum value)

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(iii) Ejectment, unless the right to occupation exceeds prescribed by
the rules ($50 million value)

(iv) Matrimonial or maintenance matters in terms of the Customary

Marriages Act 5:07 or Matrimonial Causes Act Cap 5:13 ($50 million
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 cap 6:06 – subject to S14(2)

(vii) In all other cases apart from the above where the value does not
exceed the prescribed amount, unless even with respect to i. to (iv).
The defendant has consented.

(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: arrest tamquam suspectus difuga( person not
a resident or citizen of a country may be arrested to compel them to
pay a debt before leaving the country) , spoliation, attachments and
interdicts ($50 million maximum value)

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(f) Where the claim is for the balance of an account and is within
the jurisdiction even though the whole account may have exceed the
jurisdictional limit.

(g) Where findings on a matter beyond the jurisdiction are

necessary, the Court’s jurisdiction is not otherwise ousted where the
amount/relief claimed and 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) ‘Action”, “claim” and “summons” include “claims in

reconvention”. And Plaintiff and Defendant include “in re-
convention).

2. Province shall be construed as a reference to the regional

division for which a regional court was established.

3. A court having jurisdiction in respect of the person shall have

jurisdiction where the person owes a debt in terms of the Income Act
23:06 or Debt Adjustment Tax 5/1965 irrespective of the value of
the amount due.

Empty judgment- brutum cronam.

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Arrests ad Interdicts
The court has power to grant against persons ad things orders for
arrest tamquam suspectus de fuga, attachment, interdicts ad
mandamant van spoilie
This is provided the value sought to be recovered does not exceed
$10000.00

13. Attachment to found or confirm jurisdiction against Non-

Zimbabwe residents as long as the claim is within the jurisdiction
(maximum value $10000.00 thousand dollars).
14.

S13-14 of S.I. 115/91

Presiding officers shall ensure that a record of proceedings before

them is kept as well as other records.

FORMS

Summons

Notice of Appeal

Record of Case

Notice of Respondent (of appeal)

Transfer of case

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CIV/04
LL.B (HONS) PART II
CIVIL PROCEDURE

MAGISTRATES COURT
OFFICERS OF MAGISTRATES COURT

1 Presiding officers are Magistrates

2 These courts are presided over by magistrates. Magistrates
take the oath of office before commencing duties as a
magistrates.
The magistrates are assisted by the messenger of court who is an
independent contractor employed by Min of Justice. He appoints
deputies to assist him.
The duty of the messenger of court is to serve documents of courts –
summons warrants.
IN TERMS OF ORDER 2 , RULE 2 S i. 290/ 80

Messenger to serve process without avoidable delay where he meets

with resistance he is entitled to call police to assist him. Where the
messenger of court meets with resistance, he is entitled to call upon
the ZRP to assist him.

Rensford versus Commissioner of Police 1984 (1) ZLR 202, The

messenger of court has a duty to make a return of service on where he
serves the document.

The Clerk of Court

The clerk of court is appointed by the Chief Magistrate. Her duties are
set out in Order 2 which are:

1 Keep all records of the court

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 2 Allocate case numbers to every case filed and
consecutively for each year;
3 Opens file for each new case;
4 Files all subsequent papers;
5 Issues all process of the court; (any document which
which has to be issued by the clerk of court) in order to
be valid; (Issuing means signing and stamping.)
6 Notifying parties of any decision made by the
magistrate.
7 Provides transcripts of records for appeal on payment of
the prescribed fee.
8 Writes out documents for people declared paupers and
are to be assisted by the court.

Apart from that the clerk of court is not permitted to write out
documents for parties.

Legal practitioners are officers of the court. They are allowed

to represent parties in the magistrates’ court.

JURISDICTION

Every Magistrates Court has jurisdiction at general or customary law

according to s11(1) of the Magistrates’ Court Act.

(a) Persons
1. Any person residing, carrying on business or employed within the
province.
2. Any partnership with business premises or any member whereof
resides within the province.

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 3. 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.
4. 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

(viii) Liquid claims in the amount prescribed by the rules together with
interest thereon, (See also (g) re interest + costs)($50 million
maximum value)

(ix) Delivery/transfer/cancellation of agreement for any property

where value is in the amount prescribed by the rules ($50 million
maximum value)

(x) Ejectment, unless the right to occupation exceeds prescribed by

the rules ($50 million value)

(xi) Matrimonial or maintenance matters in terms of the Customary

Marriages Act 5:07 or Matrimonial Causes Act Cap 5:13 ($50 million
maximum value)

(xii) Guardianship and custody in terms of the Customary Marriages

Act (customary marriage)

(xiii) Validity effect or interpretation of oral wills in terms of the Wills

Act cap 6:06 – subject to S14(2)

(xiv) In all other cases apart from the above where the value does not
exceed the prescribed amount, unless even with respect to i. to iv.
The defendant has consented.

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(c) Except for actions in terms of S14, where parties have agreed
the Court should have jurisdiction.

(i) If two claims are combined but each would have been within the
jurisdiction.

(j) 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 ($50 million
maximum value)

(k) Where the claim is for the balance of an account and is within
the jurisdiction even though the whole account may have exceed
the jurisdictional limit.

(l) Where findings on a matter beyond the jurisdiction are

necessary, the Court’s jurisdiction is not otherwise ousted were
the amount/relief claimed and within the jurisdiction. Interest on
capital, costs or alternative relief should not be considered in
deciding whether the claim is within the jurisdiction.

(m) Plaintiff may abandon explicitly a part of his claim to bring

it within the jurisdiction.

(n)Plaintiff may deduct what he admits to owing Defendant to bring

his claim within jurisdiction.

(o) Splitting of a claim to bring it within the jurisdiction is not

permitted.

(p)‘Action”, “claim” and “summons” include “claims in

reconvention”. And Plaintiff and Defendant include “in
reconvention).

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4. Province shall be construed as a reference to the regional
division for which a regional court was established.

5. A court having jurisdiction in respect of the person shall have

jurisdiction where the person owes a debt in terms of the Income Act
23:06or Debt Adjustment Tax 5/1965 irrespective of the value of the
amount due.

15. Attachment to found or confirm jurisdiction against Non-

Zimbabwe resident as long as the claim is within the jurisdiction
(maximum value $50 million).

Section 14: Limits to Jurisdiction

1. A Magistrates Court shall have no jurisdiction 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 registered customary marriages.
(iii) Declaration of nullity of marriage other registered Customary
Marriage.

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(c) The validity of interpretation of a written will or other
testamentary document.

(d) The status of a person with respect to mental capacity.

(e) Specific performance without the alternative of damages except:

(1)To order the rendering of an account where the claim is within

the jurisdiction ($50 million maximum value)
(2)To order the delivery/transfer of property whose value is within
the rules (50 million maximum value)

(f) A decree of perpetual silence

(g) Provincial sentence

(h) A declaratory order where there is no consequential relief.

Except

(a) To make a declaratory order as to the fact of a marriage in

adultery damages claim or value of necessaries supplied to the wife.

(b) To make a declaratory order as to affiliation in suit to recover

maintenance lawfully supplied to a child.

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(c) To make a declaratory order as to the fact of marriage/affiliation
in an enquiry in terms of the Maintenance Act 5:09

* As long as these declarations will not bind present or future

rights

(2) No jurisdiction on oral wills unless:

(a) Testator normally resident in province when he made the

will/died

(b) Testator born within the province

(c) Majority (by number/value) of beneficiaries normally

resident within the province at Testator’s death

(d) Will made within the province

(e) Immovable property disposed by will situated within the

province.

* Province also refers to regional division.(division within which

regional magistrates court is found).

15 (1) Where counterclaim exceeds jurisdiction Court to say

proceedings

to enable competent Court to be appraised of matter.

(2) Failure to file counterclaim in competent court = further

stay or dismissal of application.

30
(3) Failure to further file counterclaim, or if Defendant’s
counteraction is stayed, dismissed/withdrawn, abandoned or
absolution in competent Court = dismissal of counterclaim upon
application.

*S73 – Monetary limits Rules SI 160/2004

* Customary law matters: see generally the Local.

LL.B (HONS) PART II

CIVIL PROCEDURE

SUMMARY PROCEDURES

These are steps taken to curtail proceedings so that a mater is

finalised sooner.

DEFAULT JUDGEMENT (Order 11)

O1R5 (1) “a judgement given in the absence of the party against

whom it is made.”

O11R2 Where the defendant, after service of summons had

neither consented to judgment nor entered appearance to defend

31
within the prescribed time, Plaintiff may lodge a written request for
judgement to be entered against Defendant.

 Differentiate between REQUEST AND NOTICE. There is

no need to serve the former.

Default judgement 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
Prescribed Rate of Interest Act cap 8:10.

# Compare to Order 11 of the High Court Rules

O11R3 Where a Defendant has entered appearance to defend 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 application 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.

32
2. R4(4) where service of summons has been by post default
judgement 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 any

request for default judgment for

(a) damages – proof of damages

(b) Hire Purchase Agreement governed by Hire Purchases Act

14:09

(c) Liquid Document – the original of which must be filed of

record, or affidavit sworn to explain why it cold not be
filed.-there are also illiquid documents.

Affidavit usually sworn before commissioner of oaths.

(d) Any other request, in which case the Magistrate may

refuse judgement, 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

R4(9) Plaintiff can request judgement against defaulting Defendant

without prejudice to his claim against the other Defendants.

33
CONSENT TO JUDGMENT
Where the defendant does not oppose the claim.he is agreeing with
claim stated in summons and thus the clerk of court may then enter
the judgment without the matter being contested in trial.

O11R1

1. A Defendant may consent to judgement by delivering a written

memorandum stating his consent and for that 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) requires the original liquid document or affidavit before

judgment can be entered.

8) (a) where a Clerk of Court has referred the matter to a

Magistrate

34
 (b) The Magistrate may require the Plaintiff to provide
evidence that the consent has been signed by
Defendant and it is for the judgment sought,

(c) Enter judgment

(d) Refuse judgment

(e) 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.

PAYMENT INTO COURT O13

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.

NOTE: 1. The payment must specify the causes of action

otherwise it must be disregarded.

2. No consensus is required

- Brookmee v Rhodesia Railways 1956 R

& N 51 1956 SA 562 (SR)

- Santam Insurance Company vs

Lebenberg NO and Anar 1976 (4) SA
312 (W)

35
 Must read these cases. A must read.

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.

NOTE: If Plaintiff refuses tender, but is unable to prove the amount, he

is still entitled to the full amount of tender.

Union Government vs Male 1943 AD 3

R3 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

36
 (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

Klein v Johannesbury 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.

Vadivelu v South British Insurance Co. Ltd 1957 (2) SA

443

R10 If a year passes before paymen

37
38
6 The degree of permanency is not defined, but the person must
have some interest in the place.

7 Corporations and juristic persons residence is place of business

or where general administrator is centered.

If respect of causes of actions, where cause of action arises in their

area of jurisdiction.

What is meant by cause of action?

Every fact which is material and needs to be proved in order to entitle

p/f to succeed. It does not mean every piece of evidence that one
needs to prove. If for example claim is based on contract material facts
are

1 That a contract was concluded

2 Terms of contract
3 That there was a breach of contract
If claims is based on delict material facts are

1 commission of delict
2 damage arose out of commission of delict.
In respect of ejectment jurisdiction is restricted to value to the occupier
must not exceed $10000 value of right to occupy the property.

Urquhart V Bruce 1974

Onus of proving value is on occupier.

Where property is used for purposes other than business eg residence.

39
 1 if there is compared i.e premises available at same rental
value is removal to other premises, plus compensation for
inconvenience caused by moving. If comparable premises are
available at higher rental value to occupier if difference in
rental calculated with unexpired portion of lease added to it is
the moving expenses.
Facts

P/F sued eleft for order of ejectment (2) Judgment in the sum of $35
being the amount owing in municipal rates. Deft had refused to pay
and P/f had himself paid. Claim for ejectment not pressed for
Magistrate felt claim exceeded his jurisdiction Deft had become a
statutory tenant who was bound observe all terms and conditions. It
was held that onus of establish value is that of the occupier since deft
hadn’t established value to him there was no basis for court to decline
jurisdiction.

In assessing the value of occupation if there are comparable properties

at comparable rentals then value of occupation is no more than cost of
removal if any money value can be put to inconvenience suffered in
having to move to other premises. If other premises are available at
higher rental then value to her of occupation of the premises, in
addition to the removal of charges and value of inconvenience is
difference between higher rental she has to pay and rent she was
paying , calculated over period of unexpired lease.

Appeal dismissed

Business premises

Langham Court v Mavromaty 1954 (3). S.A 742

40
Appellant (P/f) claimed ejectment in Magistrate court from business
premises and payment of $ 102 – 13 4d rent arrears.

Agreement entered into in 1952 on behalf of American credit at $55-

p.m payable monthly and in advance. It was also alleged that company
was non existent and that deft, personally liable. On jurisdiction
summons alleged value of occupation was no more than $200 per.
Issue of jurisdiction on claim for ejectment was tried first objection to
jurisdiction upheld by Magistrates Court absolution from the instance
granted. p/f appeal. It is urged on appeal that the ejectment was for
deft personally, value of occupation to company was irrelevant and
that deft had contracted on behalf of a non existent company. Court
held value of occupation is not rent due. Where property is residential
value of occupation is cost of renting for period of occupation of similar
premises to that in dispute.

In a business premises value to occupier is the cost of hiring other

premises on which he would reasonably expect to make the same
profit.

APPEAL DISMISSED

1 value is cost of hiring other property at which he expects to

make the same profit.
2 Profit reasonably expected at disputed premises multiplied by
the unexpired portion of the lease.
CONSENT TO JURISDICTION

1 can have jurisdiction if matter otherwise outside jurisdiction,

where deft consents to jurisdiction
2 where parties agree in written memorandum

41
 3 where there are more than one claims and each based on
different cause of action.
P/f can also abandon part of his claim and abandonment must be
explicit subsequent . if claim is abandoned and claim is upheld in part
only the abandonment takes effect from part not withheld.

If you have a claim for $10500 and the abandonment $500 and result
is $9000 deft will not say he will deduct $500 from the $9000.

p/f is also entitled to deduct amount owed by him to deft in order to

bring claim with jurisdiction of magistrates court.

E .g

B . (A) owe A (ii) $ 12000

A owes B $2000

S . 11 (3) provides for unlimited jurisdiction in respect to claims under

tax adjustment Act and Tax Act

S .12

Civil arrest Tamquam suspectus defuga available where debtor wants

to flee jurisdiction before he is sued. Once arrested one is forced to
remain in the country or provide security.

Also has jurisdiction to make spoliation orders ( mandament van

spoilie) awarded to someone who has been unlawfully dispossessed of
property to restore property.

Also has jurisdiction to grant interdicts order prohibiting or restraining

someone from doing a particular act in order to remedy a particular
act- known as injuction in English Law.

42
There are two types of interdicts

1 Prohibitory interdict , requires one to refrain from doing a

threatened wrong or continuing doing a threatened wrong
2 A mandatory order compels a person to do some positive act
to remedy a wrong state of affairs for which he is liable eg
removing trees encroaching onto someone’s land.

FRANCIS V ROBERTS 1973 (1) SA 507 ®

App sued Resp for interdict restraining deft from continuing to permit
certain trees to grow across the boundary and for nominal damages of
$100. They were neighbors sharing a common boundary p/f had
erected a 6 foot fence. There was a row of deft trees. Shoots from the
trees threatened to push over the fence when asked to trim the trees
deft refused. P/f went to slash back the trees delft’s plea was that he
had no obligation to stop the trees from encroaching.

Magistrate refused to grant an interdict but granted. There are two

types of interdicts Mandatory and Prohibitory.

It was urged that Mandatory interdict was a claim for specific

performance and that since there was no alternative of damages.

Through a mandatory interdict can be regarded as a claim for specific

performance, S 12 has no application in this case. Deft was under an
obligation to cut back trees.

Requirements of an interdict enunciated in SETLOGELO V SETLOGELO

1. A clear right

43
2. Injury actually committed or reasonable apprehended
3. Absence of an ordinary remedy App , had a clear right , injury has
been caused and there was no other remedy.
Reasoning was that S 14 was not a limiting section but a prohibitory
section.

A mandatory interdict against a state official known as a mandamus.

OFFICERS OF MAGISTRATES COURT

3 presiding officers are Magistrates

They are assisted by the messenger of court who is an independent
contractor employed by Min of Justice. He appoints deputies to assist
him.
Duty messenger is to serve documents of courts – summons warrants.
IN TERMS OF ORDER 2 , RULE 2 S i. 290/ 80

Messenger to serve process without avoidable delay where he meets

with resistance he is entitled to call police to assist him.

RENSFORD V COMM OF POLICE 1984 (1) ZLR. 202

Appeal against order of High court ordering comm of police to provide

such assistance and such aid as is necessary to enable the messenger
of court to affect service and enforce without ejectment against 19
squatters and W/E. first responded is the owner of the farm. People
settled on his farm in 1980 without his authority and remained inspite
of demands that they leave. Summons served on squatters. Default
judgement was entered. Messenger wanted to evict the squatters and
because of volatile situation sought police assistance. But police
unwilling to assist – object of provision is to ensure that the process is
served. Rendering of aid to go beyond mere protection of messenger.

44
It would be pointless for court to seek assistance of court- Granting of
powers to messenger implies a corresponding duty to obey comm , of
police answerable to legislative and to comply with court orders.

Messenger of court has duty to make a return of service for each

document he serves and where he serves document.

Clerk of court is appointed by chief Magistrate.

DIES INDUCIAE - time in which defendant is required to

enter an appearance to defend.

ORDER 3

1 keep all records

2 allocates case numbers to every case filed and consecutively
for each year.
3 Open file for each case
4 File all subsequent documents
5 Issues all process of court ( any document which has to be
issued by G.OC to valid.
Issuing means signing and stamping.

Notifying parties of any decision made by magistrates provides trans

scripts of records for appeal on payment of requisite fee.

Writes out documents declared paupers and to be assisted by court.

Apart from this C.O.C is not allowed to write out documents for
individuals.

Legal practitioners are officers of the court. They are allowed to

represent parties in Magistrates Court.

Power of Attorney is where a legal practitioners acts on behalf of a

client is empowered to do so.

45
ACTUAL PROCEDURE IN MAGISTRATES COURT

Proceedings can be by way of summons or application

P/f Deft

App Resp

Rule is always use summons unless there is a rule authorizing

application procedures.

Summons is served upon a deft in order to enter written notice of

intention to defend. Deft is warned of consequences of defaulting.

Summons set out particulars of claim. Where particulars are too many
once can attach a separate paper.

Summons must provide for both deft and p/fs full names and
residential addresses and occupation. If first name is unknown
………………

If represented by L Paddress is that of L.P. Address should be with 15

km radius of area except where there are less than 3 lawyers
practicing independently.

If it is a partnership can sue and be sued in own name. may be

required to provide names of partners.

SUMMONS

The dies induciae – time within which deft required to enter

appearance to defend. Seven days if without jurisdiction and 14 days if
outside jurisdiction.

SERVICE ORDER 7

46
Service is by messenger of court. Take issued copies to messenger.
One messenger and enough for defts.

ORDER RULE 4

Cannot serve between 10.00 pm and 06.00 am

Except are for:

1 writ of civil imprisonment

2 suspectus tamquam de furga
3 service of process affecting liberty should be done personally
eg civil imprisonment .
all the others can be by delivery to the person mentioned or delivery to
lawyer or delivery to the responsible person ( person looking like an
adult ) for a company or service should be at place of business or
registered office or by delivery to director or secretary of company for
partnership responsible person at place of business or to a partner.

In the case of club delivery is to local office or by delivery to secretary ,

chairman or committee member.

ORDER 7 , RULE 6

If a person cant be found or keeps place of business closed. Summons

is placed in the letter box or attach it to the principle door of premises.

Dies induciae will not apply if its during a public holiday.

ORDER 7, RULE 7

Service by registered post can be effected if summons doesn’t affect

liberty of person.

P/f can request and C.O.C can direct that service be by registered post.
Acknowledgement is proved by receipt signed at post office.

47
Dies induciae is 7 days if a person is within the jurisdiction.and
14days if the person is out of the jurisdiction.

ORDER 7 , RULE 7 B

Summons for ejectment proceedings by leaving summons at premises.

ORDER 7 RULE 7 E

Provides for services by telegram

ORDER 7 RULE 7F

Provides for inspection of original in office of clerk of court.

ORDER 7 RULE 8

Provides for substituted service where summons cannot be served by

way mentioned in the rules eg where one cannot be found –
advertisement in the news papers.

PROOF OF SERVICE ORDER 7 RULE 7 C

Proof is by way of return of service S 24 of Magistrates court Act

provides that return of service of messenger is Prima Facie evidence of
proof of service.

DEFT RESPONSES

If after service of summons deft ignores summons, P/F may apply for
default judgement.

Application is done after expiry of seven days if without jurisdiction and

14 days is deft resides outside jurisdiction

ORDER 11 DEFAULT JUDGEMENT

Application is to be in writing for no more than $10000. Rate of which

interest to be as in summons

48
APPEARANCE TO DEFEND

ORDER 10

Written notice of intention to defend provided by deft.

Deft can just use back of summons, or make a separate notice

following the same format.

RULE 1

Provides for time period 7 days if resides w/I jurisdiction and 14 days
outside jurisdiction.

RULE 2

Late appearance valid provided there has seen no application for

default judgement.

RULE 3

Appearance must be signed by the deft or L.P and address for service
must be provided w/I 15 km of court house.

49
RULE 4

Deals with exceptions

After entry of appearance to defend. defendant may require further

particulars.

ORDER 12

Purpose of further particulars is to enable defendant to get more

information to enable him to respond to p/fs claim.

Three circumstances in which party entitled to the others claim or

defence.

1 Deft is entitled in terms of Order 12, Rule 1 to copies of

documents upon which Plff’s claim is founded.

2 Either party entitled to particulars of others claim or defence for

purposes of pleading.

3 Where both parties are entitled to particulars for the purpose of

trial. Can only apply when ready for trial.

ORDER 12 RULE 1

Where defendant is entitled to particulars of claim, the process is

different from discovery.

ESTATE LATE ZAGORIE V LATEGAN 1945 C.P.D 360

Plf’s action was for goods sold and delivered for purchase price.

Deft applied for copies of all accounts upon which Plf’s action was
founded. Plf’s response was that action not founded upon any
documents or accounts and was unable to furnish documents.

50
Deft wasn’t satisfied he brought an action to compel Plf. The court held
that Plf was right because the action was not founded on documents of
account but on purchase and sale

ORDER 12

Not founded on

Where p/f sues on basis of goods, sold and delivered claim based on
sale and not on supporting accounts or invoices

For example where can it be made?

1. Copy of dishonoured cheque. Deft entitled to a copy under Order

12 Rule 1
2. Copy of written agreement where basis of claim is the
agreement, eg written acknowledgement of debt, agreement of
lease
Order 12 Rule 2

By way of written notice delivered not more than 7 days after

appearance to defend. In all other cases it is 7 days within any other
pleadings.

To what extent is a party entitled to particulars?

Time Security versus Castle Hotel 1972 (3)112

The claim was for $85.62 being cost of services rendered to Deft
(security). Deft in response filed a plea and stated among other things
that he was not liable to pay anything because the security guard was
not providing services properly. Plf then asked for further particulars
and wanted to know in what way the security guard failed to provide
services properly. The deft’s response was that, that was a matter of
evidence to be provided. Plf applied to compel the Deft to provide

51
further particulars. The court ruled the a litigant must not be ptu in the
embarrassing position of being forced to resort to a bare denial by the
lack of particularity. A denial which in the light of particulars provided
at a later stage might well be obliged withdraw or qualify.

Held

Particulars were peculiarly within the knowledge of deft, there was no

way Plf would continuously supervise the security guard. The Plf was
entitled to the particulars requested.

Motaung versus Federated Employers Insurance 1980 (4) SA

274

Facts

The mother brought an action against the Insurer of the driver who had
injured her son. She alleged that the child was knocked down because
the driver was driving along the verge of the road and was being
negligent

The insurer requested for further particulars. He wanted to know in

which direction the driver was travelling. Plf said the particulars were
not necessary for the purpose of pleading. Deft brought an action to
compel Plf.

Held.

Particulars were not necessary. It was sufficient that the driver was
driving off the road.

Further particulars for purposes of tria are provided for in Order 12 rule
3. These are applied for after the close of pleadings. The degree of
particularity is that the the party supplying must give the other
adequate particulars to enable the other party to know what evidence

52
to bring to trial. Some particulars may not be necessary for the
purposes of pleading, but may be necessary for trial.

Order 33 rule i

Where the other party does not respond and the application is made
to court to compel the other to provide the particulars, if the order is
granted by the court if it is the deft who sought it he may then seek
dismissal of the claim. If it is the Plf then he may seek for a default
judgement.

The time for response applications for further particulars for the
purposes of pleading is 7 days. If none is provided then an application
to compel.

Order 12 rule 2 (3), as for further particulars for trial the time limit is
within a reasonable time.

The other option available to the deft is to make payment into court
made unconditionally, and a payment into court may be without
prejudice as way of settlement without derogating his rights.

The deft may wish to settle the case out of court, when not sure he
would succeed.and to save on costs of litigation. A payment into court
can be made at any time during the course of proceedings

Order 13 rule 2 When deft makes payment into court he must give
notice to the Plf and Plf is given 7 days to respond. It might be
accepted by Plf or Plf may be entitled to recover costs.

Deft is required to state whether the payment is in respect of both

claim and costs. Plf may refuse. If the Plf refuses the matter just
proceeds. But if Plf subsequently recovers less than what was paid into
court he may be penalized in costs. Costs incurred may be disallowed
form the date of payment into court to the date of judgement. Plf may

53
also be ordered to pay deft’s costs. The court has a discretion in this
matter,

Where the claim is for damages or other compensation the amount of

payment into court is not disclosed until judgement, to ensure the
amount paid into court does not influence the assessment.

Apart from making an offer in settlement the Deft can also make a
tender. A tender must be pleaded in the Deft’s plea. He he aslo
required to pay pay into court amount tendered. Tender need not be
for the full amount.

A tender is always made with admission of liability at least to the

amount of tendered. The same rules apply for the acceptance of
payment. The Plf may be penalized if he recovers less than the amount
tendered.

If the Plf loses where there has been a tender the rules say Plf is
entitled to the amount tendered, because a tender is made with an
admission.

Order 13 rule10, where money paid into court by way of tender or

payment into court is not paid out unless the case has been se down.
The clerk of court returns the money to the deft and gives Plf notice. If
the deft cannot be found the money is paid into the Guardian’s Fund.

The other option available to the Deft is to make an exception.

Exceptions can be made to summons or plea. Both parties can except.

When summons or plea is one that can be excepted we say it is
expiable.

An exception is a legal objection which complains of a defect in the

pleadings. A defect is a technical issue. The purpose of making an
exception is to ensure that pleadings issues are correctly put. Before
the court.

54
Order 14 Rule 2 deals with the grounds for excepting summons.

1 That the summons does not disclose a cause of action, It

means very fact that is material and needs to be proved to
entitle Plf to succeed.

A. Lane versus Eagles Holdings (Pvt) Ltd SC 126/85

Appellant who was Plf in the magistrates court claimed for payment of
$2000.00, which he claimed Deft had agreed to pay him. Deft
excepted to the claim on the basis that the alleged agreement
contravened the Emergency Powers Control of Salaries Increase. The
magistrate court upheld the exception and on appeal it was held that
the summons not on the face of it defective and not expiable. It was
not apparent on the face of it that the bonus increased Plf’s salary and
contravened the Emergency Powers Act.

2 Another ground for excepting is that the summons is vague

and embarrassing. That is to say the summons is not precise
and clear to enable the Deft to know what case he has to
answer. Where the summons is vague and embarrassing the
Deft has three choices to make.
(i) She may request for further particulars
(ii) May except
(iii) She may make an application to strike out. The pportion
that is vague and embarrassing.
The choice is determined by whether it is embarrassment or
vagueness and can be cured by the provision of further particulars. If
the vagueness or embarrassment goes to the root of the claim the
Deft’s option is to except. If the defect is only minor he can make an
application to strike out.

55
Order 14 Rule 5 (1), the court shall not uphold an exception unless the
defendant can show prejudice. Van Eck Bros. versus Van Der
Merwe 1940 CPD 360. It was held that in order to show prejudice,
Deft must show that exception taken not merely to be technical or
difficult but to avoid actual prejudice. She must show that it was really
necessary to take exception because the defect affects the cause of
action. An exception can be used as genuine defence and not merely
to vex the Deft. The eft is prejudiced if the summons is drawn in such a
way that the Deft does not know what case to answer and is unable to
plead to the summons.
Another ground for exception is where the summons is not properly
served or where a the original is differs materially from the copy. The
application is not to be upheld until the Plf is given notice of the
vagueness and embarrassment and giving him an opportunity to
remove the vagueness and embarrassment.

ORDER 14 RULE 6
Application to strike out any two or more claims which not being in
alternatively are mutually in condition alter any argumentative super
or irrelevant.
Salzmen v Holmes 1994 AD 152

Procedure for application to strike out is on written notice with 7 days

of the receiving further particulars if exception isn’t made timeously
the deft not entitled has to seek permission of the court.
RULE 7

Deft makes application to strike out and P/F makes application for
summary judgement at same time then application for strike out is to
be heard first. Determination of validity of summons because

56
ORDER 14 RULE 8
If Motion sustained and not application for amendments or application
on dismissed then the deft applies for dismissal of p/f claim.

SPECIAL PLEA
They do not necessarily address the claim.
They lead to a delay in the finalization of the matter.
Another defence which doesn’t deal the merits of p/fs claim eg crt has
no jurisdiction special plea.
Classes of special pleas [1] pleas in bar [2] dilinatory pleas
Dilinatory pleas delay finalization of the matter
Pleas in bar lead to the extinction of the matter.
Example of special pleas are
1] Plea of no locus standi
2] Plea of arbitration

DIFFERENCE BETWEEN SPECIAL PLEA AND EXCEPTION

Both do not deal with merits of claim
Raised at initial stage

DIFFERENCE
With special plea deft allowed to adduce extrinsic evidence

TWO CATEGORIES SPECIAL PLEA

Special plea in bar ( declinatory pleas effect is to squash proceedings)

Another example is plea of prescription time with which it was to be

made has prescribed
If u don’t put your claim within a specific time you wont be
able to make it.

57
Prescription Act
Insurance (car) 2 years
Police 6 months
Most claims prescription is 3 years

Plea of res judicate means that the matter was heard and decided by
another court of competent jurisdiction. No jurisdiction

Dilatory Pleas or Pleas in Abatement

Effect of dilatory plea is to delay proceedings till defect has been

remedied
Eg
Iis pendens meaning a similar case is pending in another court so wait
until the conclusion of that matter. i.e there is a case pending
Another example is no locals standing which is legal capacity to
institute or defend proceedings
This deals with capacity the capacity eg minor and also the rights to
institute proceedings.
Plea of arbitration – parties have agreed that before going to court they
must first go for arbitration.

EDWARD V WOODNUTT 1968 (2) RLR 293. P/F HAD NO LOCAS STANDI,
AS

RESJUDICATA
MVAAMI PVT LTD V STANDARD FINANCE 1976 (2) RLR 257 for plea of
res judirata to succeed there must have been a prior
Judgement before competent court on same subject matter based on
same ground same cause of action and same parties.

58
MARISBY WHITE V MORISBY WHITE 1972 (1) RLR 199

Flood v taylor 1978 RLR 230

Both cases dealt with default judgements court emphasized . when

plea of res judicatta has been raised amounts to the whole of legal
rights of parties were concluded it was necessary to scrutinize default
judgement to see what was decided by earlier court.

OWEN SMITH V OWEN SMITH 981 RLR 514

Plea of res judicate cant be raised in respect of maintainance case.

Reason , decision of court never final as circumstances change

BALDWIN V BALDWIN 1967 RLR 289

Special plea was one of lis pendens . held court had discretion to order
stay of proceedings or refuse to make such an order court to consider
equities of the case and the balance of convenience.

Where deft enters appearance for purpose of delay proceedings p/f

may apply for summary judgement.

SUMMARY JUDGEMENT

ORDER (5) R

Available to p/f who believes that her / his claim is unanswerable and
that deft enters appearance to delay proceedings.

59
Rule 1

Available in specific claims

Liquid documents, there must be a liquid document

Liquidated amount in money

Amount of claim is fixed or easily attainable eg cost of goods sold

Claims for delivery of specified movable property.

Claims for ejectment – where one wants to evict deft from property he
is unlawfully occupying. Claim for damages are excluded because
there is always a defence and the amount of damages should be
determined by the court.
But if the amount is agreed on and one denies liability purpose is for
p/f to get judgement as soon as possible

CHRISMAR V STUTCHBURRY AND AMOR 1973 (1) RLR 177

The court, emphasized that the special procedure of summary

judgement was that a mala fide deft might be summarily denied the
benefit of fundamental principle of the AUDI ALTERAM PARTEM
S,J is an extra ordinary invasion of the basic tenant of natural justice
and will not be lightly resorted to. Only when all proposed defences to
p/fs claim are clearly unarguable both in fact and in law that the
drastic relief of S.J will be granted.
A question of law is a legitimate defence.

60
In Shingadia versus Shingadia 1966 RLR 285 the court held t
summary judgement should not be granted when any real difficulty as
to matters of law arises. Plf contended that Deft was to join another
party. The court held that this was a triable issue and summary
judgement was not granted.
Dickson versus Addison SC 160/87 the Plf claimed for an order of
ejectment and payment of $700.00 rental owing. Plf claimed that the
deft had violated the contract of lease by failing to pay rents on time
and by subleasing. The deft entered an appearance to defend. Plf then
applied for summary judgement and Deft said the Plf had sold the
property to him. He had instituted a claim for transfer of property. The
court granted summary judgement. On appeal it was held that Deft
misunderstood the law. The fact that the property was sold to him
doesnot entitle him to occupation. This was a cash sale. Rights to
immovable property pass on transfer. Since it was not disputed that he
breached the lease agreement summary judgement could be granted.
The appeal was dismissed.
Procedure
Summary judgement must be served within 7 days of filling
appearance to defend. (This provision is subjrct to change)
The Plf then sets down matter for hearing.
If the claim claim is for an illiquid amount the application must be
accompanied by an affidavit by PLf of some person who knows the
facts concerning the transaction. The cause of action must be verified.
Also incude that there is no bona fide defence, and that appearance to
defend was
The Deft is not given an opportunity to defend, entered solely for the
purpose of delay. The Deft has three options:
(i) Pay into court the amount claimed and costs, to show he is
willing to abide with the decision of the court. If Plaintiff
succeeds, the money is given to him.

61
 (ii) The Deft may give security to satisfy the judgement it is
made against him.
(iii) Satisfy the court by affidavit which may be supported by
oral evidence that he has a a good prima facie defence to
the action, that is allege facts if proved is a defence to the
case.
Order 15 Rule 2 (2) At the Application for summary judgement no
other evidence may be adduced except for the affidavit and the liquid
document. If deft calls witnesses, Plf may not cross-examine them but
they may be examined by the court and Deft may reexamine them.

What is meant by a good and prima facie defence?

Oak Holdings versus Chiadzwa S.C.50/86, The plf sued for

$92600.00 due by way of I.O.U signed by the Managing Director of
Deft. The deft, entered an appearance to defend and Plf applied for
summary judgement. The deft, opposed it on the basis that the I.O.U
was a fictitious document, created for the purpose. It had been agreed
that the I.O.U note be destroyed which was subsequently destroyed by
the Plf. The High Court held that the defence was so improbable that it
could not constitute a good prima facie defence. Summary judgement
was granted. On appeal to the Supreme Court it was held that
applications for summary judgement are not decided on a balance of
probabilities and that unless the court is satisfied that Plf’s claim is
unanswerable it should not grant summary judgement and should not
decide on probabilities. The appeal was allowed.

Order 15 Rule 3(1), If the deft does not pay into court as provided in
Rule 2 the court may enter summary judgement.
Order 15 Rule 3 (1), If the Deft pays into court, the court will grant
him an opportunity to defend.
Order 15 Rule 4 , Provides that evidence given at an application for
summary judgement is not admissible except on application by a party

62
and on behalf of the party. It was adduced. It can be used if deponents
or witnesses are called and subjected to cross-examination.
Order 15 Rule 5
Where the Deft establishes a defence for part of the claim the court
may give leave to defend part and grant part summary judgement for
the other part. Where there is a partial defence or more than one
defendant the court may orde3r a combination of orders.

The Plea
The plea is the Deft’s response to Plf’s claim as stated in the summons.
It can be an ordinary plea or a special plea.
Order 16 Rule 1, deals with the plea. The plea must be entered
within 7 days of the receipt of the appearance to defend. If there has
been a request for further particulars within 7 days of its provision or if
there has been an unsuccessful application for summary judgement
then within 7 days of the dismissal of the application.
Where there has been an exception or motion to strike out within 7
days of such dismissal.
Order 16 Rule 1
The plea must be signed by the deft, or his legal practitioner.
Order 16 Rule 2
The contents of the plea shall either admit or deny of confess and
avoid all material facts alleged in the summons.
Plea of denial is one which says Deft denies Plf’s claim. It does not
necessarily, mean all allegations of facts are denied. It is a plea of
denial if it denies essential aspects of the claim eg in a car collision
claim Deft may admit driving car but denies negligence.
Where an allegation of fact has been admitted it is not necessary for
Plf to prove it. Once an admission has been made in a plea it can only
be withdrawn with the permission of the court. And the court will want
to know the reasons whether the application is bona fide and secondly

63
whether there would be prejudice to Plf and 3rdlyIf there is prejudice
whether such prejudice cannot be cured by the award of costs.
A party is deemed to have admitted facts which are necessarily
implied eg, on a claim for damages for vicarious liability, thus when it
is admitted that the employee was acting in the course and cause of
employment.
Denial means an express contradiction of facts. It must be clear and
must meet the substance denied. It must not be too general. Where a
number of allegations are made on one sentence deft must meet the
substance of each allegation.
If it is on or about27 Februaryn2018 and at Masvingo, the Deft
published defamatory words of plf to one Tanga Mavei, supposing Deft
pleads, this is denied the denial is defective because it does not meet
the substance of each of Plf’s allegations. Is he denying publishing in
Masvingo? Is he denying publishing about Plf.
If she denies everything she should say each and every allegation in
paragraph 4 is denied. The deft is not to make a bare denial. She has
to be specific.
The effect of a denial is to put facts denied and the necessary
implication in issue. The court must resolve which party is saying the
truth. It enable s the other party to know which facts are to be proved.
If a fact is denied which should have been admitted thus lengthening
trial the Deft May de penalized by paying wasted costs. Whatever is
not denied and is inconsistent with the claim it is taken to be denied.
Order 16 Rule 7, Plea of Confession and Avoidance In this case
the Deft admits all the Plf’s allegations and proceeds to allege a new
set of facts which have the effect of destroying the admitted facts foe
example estoppel, set-off,
Estopel arises usually in contracts wherby a person makes a
representation but then denies making that representation, this

64
doctrine hence stops that individual from denying making that
representation
The deft is required to set out material allegations of fact on which his
plea is based. If Plf alleges that that deft acted wrongfully and
unlawfully, he cannot just deny. He has to set out facts upon which he
bases his denial.
Exception to the plea
Order 16 Rule 10 and 11
The Plf can also except a plea.
Rule 11 provides for the grounds of exception to a plea.
1 Except on any ground that does not disclose a defence.
(a) Not setting out what the defence is.
(b) May set out a defence which is not acceptable
2 The other ground is that the plea is vague and
embarrassing, i.e if it is not clear what defence is being
raised.
3 When the plea does not comply with the requirements of
Order 16
(a) If the plea is a bare denial it does not comply with
Order 16,
(b) May fail to admit or deny or confess and avoid all
the
(c) May fail to set out clearly and concisely the
nature of his defence. Order 16 Rule 2 (i)
(d)May be a plea of tender which does not comply
with Order 16 Rule 5
(i) Apart from excepting to the plea Plf may also make
applications to strike out. Order 16 Rule 14. The Plf may apply
to strike out any two or more defences which are mutually
inconsistent and have not been pleade in the alternative.

65
 (ii) Plf may apply to strike out argumentative, superfluous,
contradictory matter.
The procedure for making an application to strike out.
(i) Must be made within 7 days of delivery of plea or
with 7 days of delivery of particulars.
Exception to strike out can be set down by either party on 7 days’
notice Order 16 Rule 15. If an application is made and granted by the
court and no application for amendment is made and if made which, is
dismissed by court then judgenent may be granted by the court for the
Plf,

COUNTER CLAIMS

Ordeer1 A counter claim is a claim by Deft against the Plf . Deft

usually files the counterclaim together with the plea. A counterclaim
may arise out of the same transaction from which the claim is based. If
a claim arises from an accident one may make a counter claim. A
counter claim may be separate from the claim.

A counter claim is also known as a claim in reconvention. The

counterclaim must be set out in the same way a claim is made There is
no need for the Plf to file an appearance to defend, order 9 Rule 1.

Rule 2 provides for time limit that is within 7 days after appearance to
defend.

Rule 3 provides for the nature of the claim, that is whether whether it
is liquid or illiquid.

Rule 5 provides that if the counterclaim is completely separate the

cases may be tried separately, but judgement must be given at the
same time. Say if plf succeeds in his claim of $8000.00 and deft
succeeds in his counterclaim for $1000.00 then deft would owe Plf
$7000.00.

66
Rule 6 provides that the Plf cannot raise a counterclaim to Deft’s
counterclaim. He may apply to amend his claim. The dismissal of Plfs’
claim does not mean dismissal of deft’s counterclaim. If the deft’s
counterclaim exceeds jurisdiction the Deft must resort to S15 of the
Magistrate Court Act as read with Order 9 Rule 2 (3). He can apply for
stay in the magistrates court., to enable him to bring his claim in a
court of competent jurisdiction. The court must also be satisfied that
the Deft has reasonable prospects of obtaining judgement in excess of
its jurisdiction. He must adduce basic facts of the claim. He must
deliver particulars of claim in reconvention for service to the plaintif
and the court will pronounce that it is in excess of jurisdiction. Then
she applies for stay.

The deft is given specific time within which to institute proceedings in

the competent court.

If the deft is unable to institute proceedings for some reasonin the

court of competent jurisdiction, she can make an application for an
extension. If he still fails to institute proceedings then the counterclaim
is dismissed

If the court does not believe that the deft will succeed in counter claim
Deft may abandon part of his counter claim. If he does not do that Plf
may claim for dismissal of the counter claim.

If claim is transferred to court of competent jurisdiction p/f may then

counter claim in competent court and costs will be treated as costs in
the course.

ORDER 16

The reply

The reply in p/fs response defts plea. Plea must comply with order 16.

Where you have a claim app/ deff and deff enters plea and p/f replies.

67
A- S/S

B- A/D

B- PLEA- C/C

A REPLY AND PLEA TO C/C

B REPLIES TO PLEA TO C/C

ORDER 17

A reply only necessary where defense is not in denial.

Reply only necessary where deft sets out new allegations of facts.

ORDER 17

Reply must follow all rules application pleas.

R3

If no reply is filed p/f is taken as having denied everything. The

consequence is that if it turns out that he should have admitted he will
be penalized in costs.

Time limit is 7 days if no reply is admitted after 7 days pleading are

deemed to be closed.

ORDER 18

DISCOVERY OF DOCUMENTS

Is a process whereby parties inform each other of documents in their

possession.

Purpose of discovery is to enable each party to discover or find out

what documents are in the possession of the other so that they are not
taken by surprise.

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Discovery is not a compulsory process but if a party is called upon to
give the documents then he must prudent to ask for discovery.

Documents that must be discovered are all documents in possession of

the other including all documents that are adverse.

Other party must be allowed to inspect the documents that includes

making copies.

Or 18 r (1)

Notice to make discovery requires other parties to deliver a schedules

specifying books and documents under his control, i.e. documents
relating to the action. Once a party is receives that notice he must
deliver schedule within 7 days order 18 r (2). If privilege is claimed for
document it must be listed separately and grounds for privilege must
be set out.

Schedule is usually in two parts.

Party one where no priviledge claimed part two documents where

priviledge is claimed.

Where documents are bulky they are listed separately e.g. a bunch of
correspondence from date of first letter.

TWO COMMON TYPES OF PRIVILEDGE

1 legal professional Privilege

2 state privilege
3 marital privilege
4 public immunity privilege.(rimmer case
Legal professional privilege covers all correspondent between a
lawyer and his client
KERWIN V JONES 1957 R AND N 432

Legal professional privilege requirements

69
 1 Documents must have been prepared for purpose of litigation
either existing or contemplated litigation.
2 Must have been prepared with bonafide intention to place it
before L.P to enable him to conduct litigation.
P/f sued deft a medical doctor for damages for alleged negligent and
unskillful medical treatment. A few days after receiving the letter of
demand deft wrote letter to medical protection society

He was a member

He was seeking advice and notifying them of claim as a member he

also seeking indemnity.

Letter was written on advice of L.P.

In his discovery schedule he claimed privilege to be the letter and

response but not letter court held that the letter was privileged in that
prepared for purpose of litigation and also.

BOYCE V OCEAN ACCIDENT AND COOP

P/f sued for damages sustained when knocked down by car. Deft was
insurer of driver.

A day after the collision the insured driver had filled in a document of
deft offices entitled claim form had many pages.

Heading on page 3 was statement to company’s attorney and required

to state fully what happened deft claimed privilege on basis that it was
contemplated litigation. There was a standing instruction that drivers
fill page whenever a third party was involved. P/f disputed privilege.
Court found that deft didn’t address its mind to that particular case
and reached conclusion that litigation was not contemplated.

70
Contemplation of litigation is not a question of weather man is so
nervous and suspicious There must be more than mere possibility that
litigation will ensure.

With regards to 2nd requirements court held that a mere intention to

submit documents to Legal Practisioner when necessary is not enough.

STATE PRIVILEDGE

ASS OF RHOD IND AND ORS 681 V BROOKES AND ANOR 1972 (2) sa

If party delivers a discovery document which is incorrect. One makes

notice that he should make a better and further discovery. If party
doesn’t comply party may make application to compel out covey order
33.

R2

If he doesn’t comply one may claim for the judgement or dismissal of

claim.

If party delivers schedule leaving out one or two documents they won’t
be allowed to use that document ORDER 33 R 1

But other party may request for it and use in xxn.

One may give notice to produce documents at the trial.

Notice to produce shall have effect of a subpoena and if they fail to

produce may be found to be in contempt of court.

THE PRE TRIAL CONFERENCE

Purpose is to narrow down issues.

Determine or narrow down issues to argue in court

ORDER 19 RULE 1

71
The Ptc is held after the close of pleadings, preferably after discovery
of documents.

It is a meeting between the parties in which they discuss issues for trial
and make attempts to settle.

TWO TYPES OF PTC

Can be between the parties themselves or between parties and in

presence of magistrate.

If PTC is to be before a magistrate the date has either to be by consent

or by instruction from the magistrate

ORDER 19 r 1 (4)

Where PTC is by parties themselves either parties may give out notice
but usually by p/f.

It is by notice which should give the date, time and place which is
mutually convenient. If it is to be held before a magistrate then Clark
of court(COC) sets the date, place and time and COC notifies the
parties.

Where magistrate has instructed that the PTC be held before him the
notice may also contain directions of the magistrate of persons to
attend, documents to be exchanged at the PTC Order 19 Rule (2)

Order 19 Rule 2 (1)

Parties shall endeavor to reach agreement on possible ways of

curtailing litigation.

Order 19 Rule 2 (2)

Specific

1 Obtaining admission of facts and documents. Once admitted it

would not be necessary to prove it.

72
 2 Parties agree on what examination or inspection is required.
3 The giving of further particulars for purposes of trial.
4 Plans, models, diagrams to be used.
5 Exchange of reports,
6 The making of any discovery of documents if not yet done,
7 Where there are multiple cases they may agree on
consolidation.
8 Agree on quantum of damages.
9 Agree to make documents in the form of a bundle.
10 Parties must decide on the real issues.
11 May agree on which manner any particular issue may be
proved.
The parties will discuss whether an interpreter will be required. In civil
cases parties have to apply for an interprete.

If the PTC is before the parties only, then parties shall draw up a
minute of the PTC and any other issues agreed on. The minutes are to
be signed by parties or their legal practitioners. If parties to a PTC
cannot agree on any matter, they may make an application for
directions to the magistrate Order 19 Rule 1 (8)

Order 19 Rule 1 (9). If parties agree on a settlement on any matter

in dispute the magistrate may make an order as to the settlement.

Order 19 rule 1 (10) what the magistrate does when the PTC is
held before him:

(i) Records any decision made at the PTC.

(ii) Record agreement on issues where no agreement has been
reached.
(iii) May give directions on what the parties have failed to make.
(iv) Shall record where party/parties refuse to make an admission
and reasons thereof.

73
Where a party refuses to have PTC before a magistrate the party who
wants PTC makes an application for directions.

Order 19 Rule 1 (11)

If a party fails to comply with the directions of the magistrate, the

court may on application by the other party either dismiss the claim if
it is the Plf, or if it is the Deft, strike out the defense and consequently
a default judgement or any other order.

Masamba versus Borehole Drilling 1993 (1) ZLR 116 (S)

The old equivalent of sub rule 11. If an application has been made and
deft has failed to comply with an order to attend a PTC and Plf applies
for default judgement the court has a discretion to grant the default
judgement or not.

SET DOWN

Set down is wherein a case is assigned a date of hearing. Parties give

an estimation of the duration of trial. Taking into account the number
witnesses.

Plf Is then required to provide a notice of trial. If the Plf does not do so
within 14 days Deft may do so. The date has to be approved. Copies of
the notice of trial are taken to the COC who goes to the diary to see
the available dates.

Order 19 Rule 2 (2)

Delivery of notice of trial shal ispo facto set down the counterclaim for
trial.

Order 19 Rule 2 (3)

The service of the notice shall be at least 7 days before the trial date.

74
TRIAL

The venue for the trial, unless otherwise the court orders, trial
takes place at the court house at which the summons were
issued.

ORDER 19 RULE 3

CONDUCT OF TRIAL

ORDER 19 FROM RULE 4 onwards witness – court may require a

witness to leave the court until their evidence is required

Court may also require witness to leave court soon after giving
evidence

Court may require witness to remain in court until finalization of trial.

Where witness remains in court

SV NTANJANA 1972 (4) SA 635

CRIMINAL CASE

Accused wished to call his wife and sister as witness PP objected

because they have been sitting in court. Magistrate said they couldn’t
give evidence

On appeal. Held that witness should have been allowed to testify

evidence was dismissed. Their sitting in court affected their weight and
admissibility

Where witness is incapacitate e.g. in hospital court may move venue of

trial to where witness is

First is opening address to deal briefly with issues

ORDER 19 R 5 (1) OF FACTS AND LAW

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ORDER 19 R 5 (2) where there are several issues would dispose the
whole case , court may require parties to deal with that issue before
the other issues court would then give judgement and thus dispose of
the case

Eg employer sued on basis of vicarious liability and employer denies

alleged employee acting with the scope of employ and employee also
denying that he was negligent

Determination of whether or not employee acting in course of

employment will dispose of the case if he was not judgement given in
favor of employer

Where there is issue in dispute is only on a point of law then facts may
be admitted in court orally or by writing

Thereafter the court may give judgement on the question of law

without further evidence

Order 19 r5 (4) where there is a mixed question of law and fact and
court is of opinion that case will be disposed on question on point of
law, court request parties to argue on question of the law only and give
final judgement without dealing with facts if decision on question of
law warrants such judgement

ERASMUS V FOURWULL MOTOR 1975 (4) SA 57

Any of the parties may apply to court requesting court to exercise

discretion in terms os order 19 r 4.

Provisions must not be resorted to where facts are in dispute but law is
clear so that issue is of fact. Where both the law and facts are disputed
the real issue is on question of fact.

ORDER 19 R 6

If on pleadings burden of proof is on p/f then p/f must begin

76
General rule is that he who alleges must prove. If burden of proof is on
deft the deft must first adduce evidence where burden of proving
someone issue is on p/f and someone on deft, then p/f will start
adducing evidence . then deft will adduce evidence and p/f will be
given an opportunity to adduce evidence on the issues raised by deft
in which he didn’t addressed in initial evidence

ORDER 19 R6 (5)

Where there is a dispute as to where the burden lies. Court shall direct
which partly to give evidence.

ORDER 19 R6 (5)

Reopening of one’s case is by application where party has omitted to

call a witness. Court will not grant such application if it’s of opinion that
party withheld witnesses

MKWANANZI V VANDER MERWE AND 1970 (1) 5 A 609

p/f sued deft in Magistrates court for R564 being damages to his motor
vehicle as a result of double collision caused by 2 defts 2 nd collision
took place 10 to 20 mins after the first and was caused solely by
second deft.

Deft was unable to apportion specific portions of damages. Evidence at

trial established that both defts where negligent and that most of the
damages and that most of the damages was caused by 2 nd deft. Parties
were agreed on the damages

P/f gave evidence first and closed his case. Deft applies for absolute on
grounds that no evidence as to damages caused by each of the deft.

Application for absolution

Deft refused and postponed it before next trial date p/f attorney
consulted an expert who assessed the damages by each of the two

77
P /f applied to lead evidence of expert, there was a complication
because 1st and 2nd deft closed their case on first hearing and were

Judgement was for dismissal of p/f claim for failing to assess damages
for each of the two. Mainly on the basis that Magistrate erred in failing
to grant reopening

Discretion must be used judicially. Courts have guidelines but these

are not fixed

COURTS TO CONSIDER

1 Reason why evidence would led timeously

2 Degree of materiality of evidence
3 Possibility that evidence may be shaped to relieve the
pinch of the shoe
4 The balance of prejudice between the parties in
considering balance of prejudice court takes in to
account amount importance of issues in dispute. Fact
that deft witness may have disputed. Whether refusal
might result in a judgement of absolution from the
instance
5 Stage at which trial was reached when application is
made
6 Whether or not an appropriate order of costs will be
remedy
7 The general need for finality in judicial proceedings
8 The appropriateness of visiting the remedy of heads of
attorney on their clients
ORDER 19 (6)

Provides for recalling of a witness

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Court may recall witness on its own or can recall upon the application
of either party. All this is possible only before judgement

PAULLY V MARINE AND TRADE

Insurance co 1964 (3) sa 657

Sets out factors taken into account

During presentation of deft case one x been called as a witness other

witness called thereafter and before closing his case deft applied to
recall x to give evidence . Application was opposed court held that
court can recall witness on grounds of surprise or any other reason.

In exercising discretion court takes into account

1 prejudice of opposing party

2 risk of fabrication of parties evidence to remedy
3 Need for expeditiously disposing litigation court
granted recalling but witness restricted to evidence of
formal nature on more fundamental issues. There was
no surprise. Also took into account that p/f had closed
his case and witness dismissed. Allowing evidence
would have meant reopening of case at late state.
The courts power to recall a witness can only be used to recall a
witness

SIMON V VANDENBERG

SR 53

Adjournment and postponement of Trial

A trial can be adjourned for several reasons

1 case taking more time

2 key witness not available

79
where adjournment or postponement is at instance of party then court
considers issue of costs

if party asks for postponement then costs to be incurred by him.

if on appointment any party fails to turn up. Court must consider

evidence already given for judgement

CHIMHANZI V MUKANGE 1966 RLR 139

There was a claim for $54 for work done on defts car.

At trial deft was represented by L.P but deft was not when P/f closed
his case. Defts L.P applied for p/p so that client would give evidence.
Application was refused. Deft L.P decided to withdraw from the case

Magistrate proceeded to consider judgement and gave evidence for

defts p/f appealed. On appeal it was held, magistrate should have
treated matter as application for default judgement. He was entitled to
take into account the evidence already given. He took too harsh a view
of the evidence and that should have found that the evidence was
sufficient to establish prima facie case for a reduced amount of 49
pounds.

FINAL JUDGEMENT

S 18 MAGISTRATE COURT ACT

Basically 3 types of judgements

1 Absolution from the instance neither p/f nor deft has

succeeded. P/f is free to reinstitute claim if he comes
up with sufficient evidence. Matter not finalized
2 judgement for p/f and deft liable
3 judgement for deft p/f has failed to prove his case and
deft has proved his defense

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Successful party gets award of costs

Costs are recovered on three different scales which are:

(i) Party and party costs,

(ii) Attorney and client scale,
(iii) Costs de bonis propris,
The party and party costs are the usual costs according to a tariff,
every item is scrutinized.

Attorney and client costs are at a higher scale. They are usually
awarded where the Deft’s conduct is disapproved.

Costs de bonis propris are the costs which are paid from the pocket of
the legal practitioner. This is where the conduct of the legal
practitioner is disapproved. By the court.

If the claim is not liquidated the interest begins to run from the date of
the judgement.

When giving judgement the court has to take into account issues
raised in the pleadings. The court should not take too restrictive view
of the pleadings. This is different form the high court which has to take
a restrictive view and no latitude is permissible.

Ellison Electrical Engineers versus Barclays 1969 (2) RLR 461,

the Plf sued for the cost of repairing Deft’s deep freeze. The Deft had
purchased it from the Plf, When it was installed at the Deft Farm it
failed to function and he returned it to Plf. The Plf alleged that it failed
to function because of a fault in the Deft’s alternator. The Deft was
asked to bear the costs of repairs. The Deft denied ever being told that
he would pay the costs of repair. If the cause was the alternator the
magistrate was unable to tell who was telling the truth. As a result he
found against the Plf. He said the magistrate had not discharged the
contract on which he relied. Plf appealed. On appeal it was held that it

81
was trite in proceedings in the magistrate court the duty of the court is
not to pay too meticulous regard to the ipssima verba (spirit and letter
of the pleadings). The court must try to get to the bottom of the real
dispute to try and determine what the real issues are and provided
there is no possible prejudice to either party to decide the case on the
real issues. The court is not confined within the technical limits of the
pleadings. It was further held that the magistrate should have found
parties tacitly agreed that the cost of any repairs caused by defects to
Plf’s deep freezer, Plf would bear the costs. But if it was caused by
Deft’s alternator then the Deft was to bear the costs. The Deft
acknowledged tacit agreement in cross-examination and court should
have accepted it.

The matter was referred back to the magistrate for a finding of fact on
whether repairs were caused by the fault in the alternator.

In Humbasha versus Chimombe SC 2 / 92, it was stated that the

latitude given in the magistrates’ court has limitations. The Plif had
departed from the pleadings in evidence at the trial and the magistrate
granted the departure. When the deft, appealed the Supreme Court
that the Plf’s departure from his pleadings was so glaring that it
prevented a proper investigation of the dispute. Between the parties.
And should not have been condoned. The appeal was allowed.

Absolution from the instance where the Deft’s prayer is for judgement
and the court is of the view he has succeeded in his defense, then, it
should give judgement as prayed for by the deft and not merely
dismiss the Plf’s claim. This is so because a judgement to the effect
that the Plf’s claim is dismissed with costs is actually one for absolution
from the instance, see S&T Import versus Controller of Customs
1981 ZLR 284 @291.

And Hassan versus Billiat SC 132/86

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ENFORCEMENT OF JUDGEMENT

A judgement becomes prescribed after 30 years according to

the Prescription Act.

Superannuation of a judgement is provide for in terms of the

magistrate’s court Act section 20 (4). It means you cannot enforce a
judgement by writ of execution two years after the date of the
judgement. If the party has not enforced the judgement after two
years then she has to make an application for the revival of the
judgement.

METHODS OF ENFORCEMENT OF JUDGEMENT

1 The writ or warrant of execution against property is used

to enforce a judgement for the payment of money. It authorizes
the messenger of court to seize property of the judgement
debtor and sell it so that proceeds can be used to satisfy the
judgement.
2 Civil Imprisonment is another method of enforcing a
judgement. The debtor is imprisoned to force him to pay the
debt. It is used where the debtor has the means to pay but
refuses to satisfy the judgement.
3 Garnishee Order is the process where the debt can be
recovered from a third party who owes money to the
debtor. A garnishee can be for a lump sum or by
instalments.
4 Contempt of court proceedings is used to enforce orders
known as ad factum praestandum (that means an order that
compels someone to do a specific act or refrain from doing
specific act/s

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THE WRIT OR WARRANT OF EXECUTION AGAINST PROPERTY
section 20 to section 25 the Magistrates Court Act and The
Magistrates Court civil rules Order 26

A warrant of execution against property is court process and must be

issued by the COC in order to be valid. It authorizes the messenger of
court to attach and sell so much of the judgement debtor’s property as
is necessary to satisfy the judgement debt. It has to be served by the
messenger of court.

No warrant of execution can be issued against the State properties

(State Liabilities Act). The Minister responsible can order that the
judgement creditor be paid.

Some properties are exempt from attachment section 25

Magistrates Court Act

These are:

The necessary beds of the debtor,

The necessary bedding and household utensils

Up to $5000.00

The supply of food in the house for one month

The necessary tools and implements of the debtor, and tools used in
the cultivation of land.

Professional books. Instruments necessary for the debtors calling.

Both movable and immovable property can be attached.

S 20 (2) to be observed if attaching immovable property.

Give notice to others who have claim to property bond holders

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S 20 (1) immovable can’t be attached unless there is no movable
property or movable property has been exhausted and debt remains
unsatisfied.

Or 26 R.1

W/E cannot be given before the day following that on which judgement
is given

Except where it is by consent or default judgement.

Or can apply for special leave attach on same day. The rule is amble
debtor to satisfy debt.

R 2 (1)

The messenger of court may require security for indemnity where he is

in doubt as to validity of attachments security usually paid by self-
actors but with L.P security maybe by letter. Where property has been
attached security has to be provided.

R 3 (1)

Unless court orders otherwise messenger of court’s costs and

expenses shall be first charge on proceeds of property.

Procedure followed by messenger of court.

Creditor take W/E to messenger for service. There would be two copies.
When he serves copies of debtor method of service is the same as
summons. He leaves a notice of removal that will come and attach
property.

R 5 (2)

He is authorized to use force when executing W/E

When he attaches goods he makes an inventory of property attached.

Next stage would be sell the property

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Sale must be advertised

Sale is by public auction to the highest bidder

Conducted by either by messenger himself or by auctioneer appointed

by messenger

Messenger of court must stop sale if amount required has been

reached. Whatever is left is returned to the debtor.

Names and addresses of purchasers must be recorded if known.

After sale in execution the messenger accounts to judgement creditor,

surplus is returned to debtor if he cannot be found then deposited with
court for own.

0RDER 26 R 7

Immovable property nature and situation of immovable property must

be

Copy of W/E must also be served on Registrar of deeds and holders of

mortgages and occupied by others then occupier, another copy to be
served on local authorities.

After attachment messenger ascertains whether anyone has prior

rights to the property.

Where property situation in another province W/E forwarded to

messenger of that province so that he execute Day and place of sale
appointed by the messenger sale advertised. Prejudice if sale allowed
to continue.

As a general rule No stay of execution for payment of money. One gets

money

SANTA INSURANCE V PAGET 1981 ZLR 132

CHIBANDA V KING 1983 (1) ZLR

86
Where debtor alleges hardship he must place evidence before court to
support that allegation. If debtor is requesting time to pay should give
details of income and ability to pay.

COHEN V COHEN 1979 RLR 184

Execution is a process of court and court has inherent power to control

its own process subject to rules of court.

Court won’t grant stay merely because litigation concerning agreement

is

Had entered into agreement. Resp was to pay $200.000 to App

payment subject to undertaking not to breach undertaking.

Resp alleged breach and alleged for future (@) same time Resp issued
W/E for payment of instalment. Application was granted

GARNISHEE ORDERS

S 33- MAGISTRATE AND ORDER 29 CIVIL RULES

Special rules apply where garnishee is the state.

Need to give notice of the application together with supporting

documents including copy of judgement in the case of those not in
defense. Serve on Director SSB [ salary sevices beruea] and Head of
Min in which debtor employed

Notice served on Chief Pay Master ZNA and also commander ZNA and
secretary of the minister of Deffence

In the case of members of parliament and served on Director SSB and

clark of parliament Notice must contain sufficient information to
identify debtor

Full name or Force number

Min or Dept debtor employed

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Once notice has been given the Director or Chief Pay Master must give
notice of debtor’s salary and current deductions and earliest date on
which to make deductions on provisional garnishee order.

Service of provisional garnishee order restrains from paying full salary

to debtor. Except for SSB and Chief Pay Master who provides an
earliest date when they can start deductions

Make ex parte application

ORDER 29 R1 (2)

Application is accompanied by notice received from SSB and an

affidavit Judge. Creditor must state out that obtain judgement in
Magistrate court and that judgement debt still unsatisfied and amount
still outstanding.

Must also state judgement debtor resides in province

State garnishee indebted to debtor

Whether for salary or wages.

If from salary and wages must state that debtor would have sufficient
to look after himself and those dependent on him.

Once application is made it’s taken to Clerk of court who places it

before Magistrate who peruses it and decides whether to grant
application. May require applicant to appear in support of the
application. Provisional garnishee order is granted. It calls upon the
garnishee and judgement debtor to respond

Garnishee may say he doesn’t owe him. If he doesn’t appear garnishee

is warned that may pay twice over if he doesn’t appear.

Debtor may appear and say balance after deductions wouldn’t leave
him sufficient to look after his family or that a debt is satisfied.

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Order

Once proved the garnishee order is obtained and it is served on the

garnishee and judgement debtor. On the return day parties appear
again if there is no appearance the order is confirmed. If the parties
appear they may make submissions. If the debtor shows that the
deduction would not leave him with enough to maintain himself the
court may adjust the amount.

Order 29 Rule 4

The garnishee may opt to pay money to the messenger of court on

receipt of the provisional garnishee order,

Where the debt is for salary and wages and the garnishee, if the debtor
ceases to be employed the garnishee is obliged to give notice to the
judgement creditor.

CIVIL IMPRISONMENT s 27 to 32 of the Magistrates Court Act

and Order 28.

Civil imprisonment is a procedure that is used to force a judgement

debtor who has the means to pay but is unwilling. It is not punishment
for failing to pay. A decree of civil imprisonment should not be made
where the debtor has no means to satisfy the debt either from future
or present earnings.

The procedure is by way of summons. Summons for civil imprisonment

are issued. The summons is served on the judgement debtor. Order 7.
Civil imprisonment summons must be served on the judgement debtor
personally. Because it deprives her of her liberty. But if the debtor
frustrates efforts to be served, the creditor applies for substituted
service.

The summons for civil imprisonment calls upon the judgement debtor
to make payment of debt or appear in court on a given date to show

89
because why a decree of civil imprisonment should not be made
against him. If he appears on a specific date the court makes an
enquiry on his failure to pay. Order 28 1A. She is particularly called
upon to adduce evidence about as to his financial position and the
evidence of any other person can be received. The evidence by other
people can be by way of affidavit or oral. If the evidence is adduced
orally, the witness must be cross-examined. If after the inquiry the
court is satisfied that the debtor is able to pay the court will authorize
the issuing of a warrant of arrest.

The warrant of arrest authorizes the messenger of court to arrest the

judgment debtor and place him in prison till the expiry of the given
time.

The debtor can avoid imprisonment by making an offer to pay in

instalments. In that case he will get a suspended order of civil
imprisonment.

If he then fails to pay the judgement creditor can apply for a warrant of
arrest. He has too furnish proof of failure to pay. Where there are two
or more orders against the same debtor such orders shall be
cumulative. Order 28 Rule 4

Order 28 Rule 5 provides that the warrant of arrest may be executed

on any day except Sunday, Christmas, Good Friday. It may be served
anywhere except at her residence. The proviso authorizes execution at
the residence, if the debtor deliberately avoids leaving the residence,
on Sunday, Christmas, and Good Friday on good cause shown.

The decree of civil imprisonment lapses or superannuates two years

after the date of the last payment. The warrant of arrest also lapses.
After two years.

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In R versus Chakanetsa 1968 (2) RLR 182 it was stated that the period
of imprisonment is a maximum of 3 months. Section 32 of the
Magistrates court act. If after three months the deft has not paid the
debtor is released and other means of enforcement will have to be
used.

Maintenance of the debtor during imprisonment is the responsibility of

the judgement creditor. If the judgement creditor does not pay the
Officer in Charge of the prison is entitled to discharge the judgement
debtor. The judgement debtor can apply for his release on other
grounds other than payment. He has to make an application to the
high court and has to show cause on circumstances why he wishes to
be released e.g. ill health.

Gass versus Thomas Roote 1973 (1) RLR 125 and section 26 of
the act, Summons for civil imprisonment cannot be issued unless the
judgement has been unsatisfied for 7 clear days or the judgement
debtor does not have attachable property.

CONTEPT OF COURT

Contempt of court proceedings are used to enforce orders ad factum

praestandum that is orders which compel a person to do a specific act
or refrain from doing a certain act.

There are two types of contempt of court.

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One is that of conduct which is disrespectful of the court, or any
conduct calculated to bring justice into disrepute. This type of
contempt is dealt with under the criminal law.

The second type of contempt is civil contempt of court. It entails willful

and mala-fide failure to comply with the civil order of the court. The
purpose of contempt of court proceedings is to compel by means of
arrest and committal to jail .It is usual for a committal order to be
suspended to allow the person to fulfil the obligation.

In order to succeed the person seeking the order has to satisfy that:

1 That he has obtained an order ad factum praestandum.

2 That the order was served on the person concerned or that it
came to his notice or knowledge.
3 That despite the knowledge the person failed to comply with the
order.
Once the three requirements are established the onus shifts to the
person alleged to be in contempt of court to establish on a balance of
probabilities that the failure to comply was not willful or if willful was
not mala-fide.

Haddow versus Haddow 1974 (2) SA 181

Clement versus Clement 1961 (3) SA 861

The proviso for bringing contempt of court proceedings are not found
in the magistrates court act and therefore has to be by summons for
civil contempt if in favour of the person in whose favour the order was
granted.

However the court cannot on its own raise the question of contempt of
court.

Wiley No. versus M 1979 RLR 144

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The respondent in this case a legal practitioner had disobeyed a court
order to lodge certain vouchers with the applicant. It was conceded
that his conduct was willful and mala-fide. The applicant brought an
application for contempt of court. Prior to the hearing respondent
complied with the order. At the hearing the applicant sought an order
for the respondent to pay costs and he did comply with the order. The
court raised the issue whether the court on its own would raise
contempt of court to mark its disapproval of the conduct. The court
decided that it could not unless the disobedience was criminal
contempt. The court expressed its displeasure by ordering the
respondent to pay costs at the attorney client scale.

APPLICATIONS PROCEDURE ORDER 22

(General format)

There are two types of applications which are:

(i) Interlocutory applications which are applications made by

parties to existing proceedings for example an application to
compel a party to deliver further particulars

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 (ii) Proper applications. These are applications that actually
commence proceedings of litigation. The application takes the
place of a summons.
Applications are not used in the magistrates’ court unless it has been
specifically provided for.

An application can be by notice or it can be ex parte.

NB. EX PARTE APPLICATION- Application made and presented to

the court without notice to the other party and the other party only
knows of it after court grants.

NB. NOTICE APPLICATION- Where the other party is served with the
application and a date is set to come to court in agreement and
general rule is 7days notice period.

An application to serve summons by substituted service is an example

of an ex parte application.

The procedure of applications

According to O. 22 Rule 1 (I) an application affecting another

person shall be on notice.

Section 33 of the Magistrates’ Court Act allows ex parte

applications.

The notice must state the nature of the order applied for, date
and time. Usually a draft order is attached to the application.
The application must be supported by an affidavit order 22 rule
2

In other cases where you do not need evidence the rules state
that an affidavit is not required. Once it is served on the
respondent the respondent responds to the application. He
might consent to the order, in which case the order is deemed

94
to have been granted form the date of the application. It shall not be
necessary for parties to appear in court. The respondent may oppose
the application in which case she shall deliver a notice of opposition
not less than 48 hours form the time of the hearing. She is to set out
grounds on which she opposes the order. Where she denies the facts
set out, or seeks to place to place additional facts she has to do so by
way of affidavit.

After that the applicant may reply by affidavit to any facts alleged in
the respondent’s affidavit. Where ever practicable the delivery is to be
24 hours before the time fixed for the hearing. If it is not practical she
may bring the reply to the hearing in which case the other party may
seek a postponement.

In terms of Order 22 rule 3 (2) no further affidavit shell be filed except

with the leave of the court.

According to Order 22 rule 5 the court may hear oral evidence at the
hearing. After the hearing the court has three options in terms of
decisions

(i) Refuse to grant the application or dismiss it.

(ii) The court may grant the order sought or any variation thereof
(iii) The court may order that the issue shall be tried by way of
action and may give directions to enable the issue to be
brought to trial. For example where the issues to be
determined cannot be decided on the affidavits evidence. If
the court refers the matter to trial then appearance to defend
shall be deemed to have been entered on the order referring
the matter to trial is made.
In making any of the orders the court in its discretion makes orders as
to costs. If the order is granted the Respondent pays the costs. When
the issue is referred to trial the question of costs is deferred to trial or

95
made costs in the cause. Whoever succeeds ultimately recovers costs
from the other party.

EX PARTE APPLICATIONS.

Order 22 rule 7.

The application shall be in writing in terms of the order applied for.

The grounds on which the application is made must be signed by the
party making the application and the legal practitioner may sign.

Order 22 rule 7 (2)

Ex parte applications are not supported by affidavit except where it is

so mentioned e.g. garnishee. If the ex parte application affects another
person the court usually gives a provisional order which is served on
the other party. On the return date the respondent is to appear in court
to oppose the application. In the event that the respondent does not
appear on the return date the provisional order is confirmed, or where
one cannot give reasons.

The person who will be substantially affected by the order sought shall
be the respondent, Order 22 rule 8

All opposed applications shall be heard in court. Ex parte applications

may be heard in chambers.

SPECIFIC APPLICATIONS

96
 1 Applications for rescission of judgement section 39
Magistrates’ Court Act and Order 30 Magistrates Court civil
rules. This is for the rescission of judgement granted in default
of the other party.
This may occur in the following circumstances

(i) Where the Deft fails to enter an appearance to defend;

(ii) Where the Deft fails to provide a plea;
(iii) Failing to attend court for a PTC.
(iv) Failing to attend court for trial;
(v) Failing to comply with the order of the court given in terms
of Oder 33 rule 1 (2), for example an order compelling the
delivery of further particulars.
An application for rescission of judgement is brought in terms of Order
33 rule 1 of the rules. This is not later than one month from the time
when deft knows of the default judgement.

In the event that the Deft realizes that the period of one month has
expired he may apply for condonation for the late application. If he
does not do so after the expiry of the one month the court would
dismiss the application.

Mahoqa versus Liebenberg S.C 2006/91.

The Plf issued summons for the payment of $900.00 being

arrear rentals. The plf also claimed eviction and costs of suit.
The summons were served on 23 -2-1990. The Deft entered
appearance to defend on 27-2-1990. The Plf made an
application for summary judgement which was served in
March. The date of hearing was 20-3-1990. On the date of
hearing there was no appearance the deft. And no opposition to the
application. Default judgement was granted. The application for
rescission of judgement was made on 20 May 1990. The application for

97
rescission of judgement was dismissed because it was filed out of time
and also on the basis that the Applicant was in willful default.

On appeal it was held that an application for rescission could not be

granted because it was made out of time and there was no application
for condemnation for late application. As a result of the failure the
magistrate’s hands were tied. He had no option but to dismiss the
application.

In terms of Order 30 rule 2 (1), the court may rescind or vary a

judgement unless it is proved that the party was in willful default.

WHAT IS WILFUL DEFAULT

In the case of Newman Pvt versus Marks 1960 RLR 166, the Plf
instituted proceedings in the Magistrates court for payment of 100
pounds being salary and damages for wrongful dismissal. The Deft
entered an appearance to defend and pleadings were closed. Plf set
down the case for hearing on 14 -5- 1959. Deft was notified. Deft
indicated that the set down date was not suitable and requested that it
be altered. The parties could not agree on an alternative date. The deft
made an application to alter the date. The application was dismissed.
On the date of hearing the Plf’s legal practitioner drew to the Deft’s
legal practitioner’s attention that the matter was to proceed His
response was that he would not be able to attend. There was no
appearance on the trial date and a default judgement was granted.

The court would not grant rescission if default was deliberate. That is
to say the deft with full knowledge of risks of what would happen freely
takes a decision not to attend. The court held the Applicant willfully
defaulted and rescission would not be granted.

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There is a rebuttable presumption of willful default once summons
comes to the notice of the Deft and she does not enter an appearance
to defend.

In Newman versus Ayten 1931 CPD 454 the Deft attempted to

challenge the messenger of court’ return of service, it must be noted
the messenger of court’s return of service is prima facie evidence.
There is a presumptions the messenger of court would not lie that he
served when he had not served. Deft has to challenge the service and
prove that there was no service.

In Gundani versus Kanyemba 1988 (1) ZLR 226, the Plf sued the
Deft for the return of 17 specified items of value $1509.49. The
messenger of court’s return of service stated that the Deft was served
personally. The deft did not enter an appearance to defend and a
default judgement was entered. Some months later the deft made an
application for the default judgement to be rescinded. He denied
having had sight of the summons.

It was held the messenger of court’s return of service was prima facie
evidence that the Deft was served as stated. There is a presumption of
regularity in respect of the messenger of court’s return. The deft had
not rebutted the presumption and was in willful default. The
application was dismissed.

Apart from showing that the deft was not in willful default he has to
show that he has grounds of defense. He must show facts which if he
successful in proving constitute a valid defense.

If the summons is itself defective rescission may be granted on this

ground alone. Bingare versus Mbondiya S.C 91/86 was an appeal
from the magistrate’s court. Judgement was entered on a defective
summons which did not disclose a cause of action. Rescission was not
granted on the ground that the grounds for defamation were not given.

99
The Supreme Court held that rescission should have been granted on
the basis that the claim did not disclose a cause of action. Appeal was
allowed.

N.B. the negligence of the legal practitioner

Ndebele versus Ncube SC 58/92 the Supreme Court stated that: It

must be observed that in recent year’s applications for rescission for
condensation for leave to appeal out of time and other relief resulting
from delays have rocketed in number. We are bombarded with excuses
for failure to act. Incompetence is becoming a growth industry. Petty
disputes are argued and re-argued until the costs exceed the capital.
Time has come for the courts to remind lawyers of the old adage
vigilantibus non domimienti bus jura subveniunt. The law protects the
vigilant and not the sluggard.

THE PROCEDURE FOR MAKING AN APPLICATION FOR

RESCISSION OF JUDGEMENT

(i) The application is by written notice, supported by

affidavit. The affidavit must explain why the Deft did
not appear or file the plea or whatever he was
required to do.
(ii) The affidavit has to state the grounds of defence of
the action.
(iii) Order 30 rule 3 requires that the applicant pays into
court the costs awarded against him and $10.00 as
security for costs of the application
Applicant who have been given leave to sue as paupers are exempt
from paying the costs. The resp (Plf) is free to file an opposing
affidavit. At the hearing the court has a discretion as to the order to
make;

(a) May rescind the judgement;

100
 (b)May vary the judgement;
(c) May dismiss the application
(d)May give directions
(e) The court may make orders on money paid into court as costs
and security
(f) The court can grant partial rescission where the Applicant has
a partial defence.
Musakasa versus Mimba SC 48/92 Order 30 rule 2 (3) if the court
refuses to grant rescission szsof judgement, the judgement becomes a
final judgement and can be set aside only on appeal. See also section
24 of the Magistrates’ court Act return of the messenger of
court is prima facie proof of service. Order 30 rule 3

Order 30 rule 4 A person who is affected but who has not been
made a party may apply for rescission of judgement on 7 days
notice after knowledge

APPLICATIONS FOR INTERDICTS SECTION 12 MAGISTRATES’

COURT ACT AND ORDE 23.

Orders prohibiting someone from doing a certain act or compelling

someone to do something.

The prohibitory order prohibits

The mandatory order compels someone to act.

Francis versus Roberts 1973 (1) SA 547 a mandatory order

against a public official is known as a mandamus.

Restitutionery interdict is an order that one who has

unlawfully deprived another has to restitute, it is also known
as a spoliation order (mandament van spoilie)

Interlocutory interdicts are granted pendente lite these are provisional

orders which are designed to protect the rights of the applicant

101
pending the intended litigation and litigation would have already have
been instituted. For an example the Plf is about to sue the deft for the
return of property and hears that the deft is about to sell the property,
an interdict can be applied for.

FINAL INTERDICTS

Requirements

(i) The applicant must show that she has a clear right,
(ii) She must show an actual or real apprehension of injury or
damage
(iii) She must also show that no other ordinary remedy which
can protect Applicant,
(iv) She has to show that she will suffer irreparable harm.
The difference with an interim interdict is hat the right can be a prima
facie right. The other requirements re the same.

Flame Lily versus Zimbabwe salvage 1980 ZLR 378 a high court
case. The applicant sold certain mining claims for $25000.00. The
amount was payable by deposit of $10000.00 and three instalments of
$5000.00. The agreement stipulated that Applicant could camcel the
agreement on default. The Deft defaulted. The Applicant gave notice of
cancellation of mining claims. Respondent did not accept cancellation
on the basis that there was fraud and misrepresentation. The Applicant
sought a temporary interdict to stop respondent from continuing with
mining operations pending trial. The court dealt with the requirement
for final interdict and interim interdict.

The court held that the Applicant had satisfied the requirements for an
interim interdict. The application was granted.

Before granting an interim interdict the court has to consider the

question of prejudice to both parties. If both are to be prejudiced the

102
court will have to look at the balance of convenience. If the balance
favours the Respondent the application will not be granted.

If there is reasonable apprehension of injury the injury must be of

acontinuing nature. One does not have to prove that it will continue
but that it is likely to continue.

Performing versus Bermang 1966 RLR 209, Plf sued deft, claiming
infringing of copyright and damages. Deft had caused or authorized
playing of his music at a night club. The night club later closed. The
licence was nt renewed. It was argued that there was no possibility of
continuing injury because the night club had closed, since the licence
had not been renewed.

The court held that the Plf does not have to prove positive act of
continuing, since Deft had not given an undertaking not to continue
infringing there was a likelihood of repetition. The interdict was
granted.

Performing versus Butcher 1972 (2) RLR 362 is a similar case.

Respondent was an unrehabilitated insolvent. The court held that that
there was no reason to assume that the respondent wouldnot continue
with the infringement in future.

In the magistrates court injury must be capable of a pecuniary

evaluation and amounts are not to exceed the limit of $10000.00

THE REQUIREMENT THAT NO OTHER REMDY

Reserve Bank versus Rhodesia Railways 1966 RLR 541

The Applicant sought an interdict to prevent Rhodesia Railways from

carrying any goods in transit from Zambia until Respondent had made
arrangements for payments. Three days before the hearing the
Minister of transport made an order directing the Rhodesia Railways
not to release goods till payment had been made. Respondent then

103
opposed the granting of the interdict on the basis that there was an
alternative remedy. The court held that interdict was not to be granted
because the requirement of no other remedy was not satisfied. Also
the interdict was more effective might be embarrassing to the
Rhodesia Railways.

Coleman versus Bristow 1976 (1) RLR 97, Applican sought an interdict
restraining the Respondent from exercising certain hunting rights on
the Applicant’s farm. Partied entered into agreement on hunting. A
dispute arose as to the number of animals to be shot. The Applicant
argued that he was entitled to control the operations of the
Respondent by virtue of the Parks and Wild Life Act. The agreement
was made prior to the enactment. Respondent argued that there was
no need for an interdict.

The court held:

The remedies . Applicant had unsuccessfully instituted criminal

proceedings

in the Act were not an adequate remedy and would not prohibit
Respondent from infringing Applicant’s rights

SPOLIATION ORDERS (mandament van spoilie)

A spoliation order is an order directing a person who has unlawfully

deprived another of property to restore the property.

The act of dispossessing another is known as spoliation. The property

may be movable or immovable. Although violence or fraud may occur
they are not essential for there to be spoliation.

REQUIREMENTS ARE:

1. The person must have been in possession of property prior to

spoliation. The possession does not have to be lawful.

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 2. The person who spoiled the other must have acted wrongfully
without the consent of the other.
The effect of a spoliation order is to restore possession. Spoliation does
not decide rights to the property.
The rationale is that no person is entitled to take the law into their own
hands. The maintenance of law and order is of paramount importance
and more important than the individual’s right to property. The value
of the property must not exceed $10000.00
COUNTER SPOLIATION
Counter spoliation occurs when a person who is depried of property,
unlawfully and pursues the person and recovers the property.

REQUIREMENTS

1 Do not commit a breach of the peace,

2 Counter spoliation is immediate, instant counter
repossession.
3 Never lost possession,
For a spoliation order to be granted the spoliator must be in
possession, and be in a position to restore possession. Potgiter &
Others versus Duvel 1966 (3) SA 555
1966 S.A Annual Survey page 227 to 222

The procedure for applying for spoliation Orders is covered by Order

23.

INTERPLEADER PROCEEDINGS ORDER 27

Interpleader proceedings can be brought in two possible situations.

1 The messenger of court may bring interpleader

proceedings where a third party is claiming a rihyt to
property which he would have attached. The purpose
if for the court to decide whose property it is.

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 Whether the property belongs to the third party or or
to the judgement debtor.
2 Where any other person is uder liability for debt for
maey or movable property and expects to be sued by
two or more people on the property. This is held so
that the court decides who of the many claimants is
entitled to it.
The applicant is required to attach the an interpleader affidavit and to
say that she claims no interest in the subject matter and does not
collude with any of the claimants and that she is willing to pay into
court as the court may decide.
Rule 4 (1) If the claimant does not appear or appears and fails to
comply with an order of the court the court amy make an order
declaring him and all person persons thereafter claiming under him
barred against the applicant but the order shall not affect any other
person.
Greenfield NO versus Blignaut and Othrs 1953 SA 595 0r 1953
SR 73. Greenfield was a District Commissioner. He had impounded a
bull. Three people claimed that the bull belonged to them. He made
interpleader proceedings. The court could not decide on the papers.
The case was referred to rial. All of the three wanted to be the Deft,
The court made an order that one of them was going to be the Plf and
the others defts and deft would be allowed to counter claim.
Bruce NO versus Josia Parkes and Another 1971 (1) RLR 154, Bruce
was the deputy sheriff. He attached some property. A person other
that the judgement debtor claimed the property was his. There is a
presumption that where goods attached are in the possession of a
judgement debtor the property belongs to him. The claimant has the
burden of proving that the property belongs to him

Order 27 rule 6 authorises the court to decide on who pays the costs.

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Order 33 is a general order. firstly it deals with a party who fails to
comply with the rules and then one can make an application
compelling the other to comply,

Order 33 rule 2 states that any time limit may be extended by any
party with the consent of the other party or by order of the court..

Order 33 rule 3 proceedings may be adjourned or postponed by

consent or by application to court. The party seeking
postponement must offer to pay costs. If postponement can be
cured by costs then it can be cured.

Order 33 rule 5 (1) withdrawal of action shall not be a defence

to an action.

APPEALS

Section 40 sets out judgements in the magistrates’ court that are

appealable. Previously appeals from the magistrates’ court lay with the
supreme court, This was changed. Appeals from the magistrates’ court
now lie with the high court. Hese are defined in section 18 and section
39 of the Magistrates court Act. Section 40 (2) states that any ruling or
or order made in such a suit which has the effect of a final or definitive
judgement.

Steyler NO versus Fitzgerald 1911 AD 295 provides for three ways

of defining a final judgement.

1. It has a final effect on the final judgement

2. Irreparable anticipates or
3. Excludes any relief in judgement
Globe and Phonex Mining 1932 AD 146

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Pretoria Garrison Inst. versus Danish 1948 (1) 839 at 870 deals with
other orders which are appealable section 40 (2) ©

(i) Where parties agree to appeal (consent)

(ii) Where it is appealed for in conjunctionwith the
case on merits,
(iii) Where the decision includes an order of costs,

PROCEDURE FOR APPEAL ORDER 31 RULE (2)

An appeL MAY BE NOTED WITHIN 21 DAYS OF THE DATE OF

JUDGEMENT APPEALED AGAINST OR WITHINN 14 DAYS AFTER THE
DELIVERY OF A WRITTEN JUDGEMENT BY THE CLERK OF COURT.

An appeal is by way delivery of the notice of appeal. The appellant is to

provide security for respondent’s costs of appeal to an amount of
$100.00 and amount of costs of preparation of the record.

A party who wishes to make n appeal where reasons for judgement

were not given, makes an application or request for the reasons which
is accompanied by $10.00.

The judgement must state FACTS FOUND PROVED

AND REASONS FOR JUDGEMENT

CONTENTS OF NOTICE OF APPEAL

(I) State clearly what is appealed against

(II) Grounds of appeal
After having sight of the notice of appeal the magistrate may
give a further statement dealing with matters raised. She is
required to do it if he had not dealt with the issue raised.

Munatsi versus Munatsi SC 03 /86. The preparation of the record is

done by the clerk of court and is required to prepare it as soon as

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possible. Order 31 rule 5 copies must be clearly typed one and half to
two spacing is required. Then it has to be paginated.

Every tenth line must be numbered on the left hand margin, It should
also have an index of documents and exhibits. The record must be
securely bound, The names of the parties are to be stated clearly and
the names of the legal practitioners

Bulky documents shall be divided into several volumes.

Order 31 rule 6 deals with the abandonment of judgement. A

respondent may abandon either part or the whole judgement to avoid
an appeal. He does so by notice delivered to the other party Order 31
rule 7 and section 40 of the magistrates; Court Act.

MAINTENANCE

Maintenance is governed by the Maintenance Act [Chapter

5:09]

Procedure

The procedure is provided for in section 4 of the Maintenance

Act

The Applicant makes an application on oath to a Maintenance

Officer. The complaint has to deal with the following issues:

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 (i) The responsible person fails or neglects to provide
reasonable maintenance,
(ii) Applicant must not have reasonable means to look
after himself.
(iii) The responsible person is the one who is legally liable
to maintain the Applicant’ examples are:
Parents and their children
Children-and parents
Spouses
(iv) The affidavit must also state the basis on which the
responsible person is liable to maintain the applicant.
(v) The affidavit is to state why the responsible person has
to contribute eg that he is employed or is business
woman
The complaint can be made by the applicant or by the children
or the custodian..
(vi) The list of expenses are to be itemized so that the
court can decide.
The Maintenance Officer then issues the summons against the
resp. the summons is endorsed with a specific date when the
resp has to appear at court.

On the stated date the court makes an enquiry it is not a trial.

The court is empowered to do so in terms of section 13 of the
Maintenance Act.

(a) The court is not bound by the normal rules of

procedure, nut it is entitled to conduct the enquiry in
such a manner that the principles of natural justice are
observed
(b) The court has the power to call witnesses
(c) The court has the authority to subpoena books

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If the matter is referred to trial then the appearance to defend
shall be deemed to have been entered on the day of the order
referring the matter to trial is made.
In making any of the orders the court in its discretion makes
orders as to costs. Where an order is made the resp pays the
costs.
If the issue is referred to trial the question of costs is deferred
to the trial or made cost in the cause. Whoever succeeds
ultimately recovers costs from the other party.
The court can order that the trial be held in private
Legal representation is permitted at the inquiry. Because it is
an enquiry there is no onus on any party.
Zimunya versus Zimunya HH 378/84 it was held that in an
enquiry the court looks at two issues
(i) Is the respondent the responsible person
(ii) If he is the responsible person, can he afford to
maintain the Applicant and if so to what amount.
Once satisfied the court makes an order of applicant per month
or lump sum.

In the olden days payment was usually through the clerk of

court. This has since changed. The responsible person now
pays through the Applicant’s bank.

Factors which the court should consider in making

maintenance orders section 6 (4)

1 The court to consider the general standard of living

of the respondent and the dependent and the social
status
2 The court also considers the means of the
Respondent
3 The means of the persons to be maintained.

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 4 Whether the defendants or any of the parents is
able to work eg the spouse.
The maintenances court may direct that the employer deducts
the amount direct from the salary of the responsible person.
This is when the court anticipates that there will be difficulty
for the respondent to pay the maintenance.

ENFORCEMENT OF MAINTENANCE ORDERS

If the Respondent voluntarily pays enforcement does not arise

but if he does not pay voluntarily enforcement would be
necessary.

If the respondent is employed the Applicant can apply for a

direction against the employer section 9 of the Maintenance
Act. A direction against the employer is the equivalent of the
garnishee order in civil cases.’ The application is made to the
clerk of court who issues a notice the application to the
employer and the Respondent and provides a set down date.

On the set down date the court makes an inquiry as to whether

or not the order is to be made. Once the order is granted the
employer is bound to make the deduction. If the respondent
(employee) leaves employment the employer is bound to notify
the clerk of court.

OTHER METHOD S OF ENFORCEMENT SECTION 22

The clerk of court may enforce a maintenance order by way of

methods used in enforcing civil judgements that is:

(a) Civil imprisonment, warrant of execution

against property contempt of court proceedings.
Section 23 provides for the criminal prosecution of the
respondent.

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VARIATION OF DISCHARGE OF MAINTENANCE ORDERS
SCECTION 8

An application for the variation or discharge of a maintenance

order is made to the maintenance officer. The application is on
affidavit

It states the ground/s upon which variation or discharge is

sought. This occurs when circumstances have changed.
Changes in financial circumstances must be explained and how
they have affected the Applicant/Respondent.

Once an application has been made the maintenance officer gives

notice to the to all interested parties to appears on a given date to
oppose the application. On th appointed date the court makes an
enquiry as to the variation / discharge application. The Court may
decide that the application is vexacious.

Where there is a custody dispute pending the court may still

make an enquiry Musakwa versus Musakwa Sc 11/84.

Termination of maintenance orders

Section 11 deals with the termination of

maintenance orders.

This can be in respect of a chid:

(i) If the child dies,

(ii) The child is adopted
(iii) Where there is an order of divorce and the
court makes an order of maintenance
(iv) If the child marries
(v) Child attains the age of majority (18 years)
(vi) Child becomes self supporting

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An order for maintenance can be extended if the child still
need support. He court may make such an order.

An order made in respect of a spouse terminates when the

spouse dies or remarries. This can be after an order of divorce
or nullity.

REGISTRATION OF MAINTENANCE ORDERS SECTION 18.

The clerk of court must register all orders made by that court.
Section 18 (2) provides for registration of maintenance orders
of the high court in the magistrates court. It is in the
magistrate court where the person resides. Once the
maintenance order has been registered in the magistrates’
court it can be varied and enfoced in that court as if it was
originally tried in that court.

APPEALS SECTION 27

Any person aggrieved by the decision of the maintenance court

may appeal to the high court.

NB’

The noting of an appeal does not suspend the operation of the

order. the respondent still has to pay even when he appeals,
unless the court directs otherwise. This is contra-distinction of
civil cases where an appeal suspends the enforcement of the
judgement.

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115
CHAPTER SIX

Section 14: Limits to Jurisdiction

The magistrates’ court is a creature of statute. Its jurisdiction is

restricted to the four corners of the statute, unlike the high court which
has inherent jurisdiction

2. A Magistrates Court shall have no jurisdiction 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 registered customary marriages.

(iii) Declaration of nullity of marriage other than a registered

Customary Marriage.

(b) The validity or interpretation of a written will or other

testamentary document.

© 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 ($10000.00 maximum value)

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 (ii) To order the delivery/transfer of property whose value is
within the rules ($10000.00 maximum value)

(i) A decree of perpetual silence

(j) Provisional sentence

(k) A declaratory order where there is no consequential relief.

Except:

(a) To make a declaratory order as to the fact of a marriage in

adultery damages claim or value of necessaries supplied to the
wife.

(b) To make a declaratory order as to affiliation in a suit to recover

maintenance lawfully supplied to a child.

(c) To make a declaratory order as to the fact of marriage/affiliation

in an enquiry in terms of the Maintenance Act 5:09

* As long as these declarations will not bind present or future

rights

(3) No jurisdiction on oral wills unless

Testator normally resident in province when he made the

will/died

(f) Testator born within the province

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 (g) Majority (by number/value) of beneficiaries normally
resident within the province at Testator’s death

(h) Will made within the province

(i) Immovable property disposed by will situated within the

province.

* Province also refers to regional division.

15 (1) Where counterclaim exceeds jurisdiction Court to stay

proceedings
to enable competent Court to be appraised of matter.

(2) Failure to file a counterclaim in a competent court =

further stay or dismissal of application.

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