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6 views6 pages

25-applications

Uploaded by

johnstonnmike
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOC, PDF, TXT or read online on Scribd
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ACP/25

ADVANCED CIVIL PROCEDURE


SYNOPSIS

APPLICATIONS

Order 32

GENERAL

Either Court Application or Chamber Application.

Rule 226(1)

Chamber Application only permissible if falls within specified limits.

Rule 226(2)

Any Application must comply with general requirements.

Rule 227

In particular must be indexed (if more than 5 pages) and must have draft order.

Rules 227(2) (d) & 227 (3)

Affidavits to be made by applicant or respondent or by person who can swear to


the facts.

Rule 227 (4)


Manica Zimbabwe Ltd v Chairman of the Labour Relations Board & Anor
HH 239/91

Where extension of any time limits required may make Chamber Application for
extension.

Rule 229

Respondent may file counter application with opposition papers as either


Court/Chamber Applications.

Rule 229A
2

Court or Judge may permit oral evidence.

Rule 229B

If wrong form of Application used, situation can be remedied unless prejudice

Rule 229C

COURT APPLICATIONS

Application by way of Form 29 supported by affidavit/s.

Rule 230

Murewa Kubatana District Council v Murehwa HH 9/89

Allock No. v Mayhew 1991 (2) ZLR 203

Manyika v Manyika 1983 (2) ZLR 198

Filing and Service of application and all supporting affidavits required.

Rule 231 (1) (2) & (3)

Proof of service to be filed.

Rule 231 (4)

Respondent’s notice of opposition and opposing affidavits to be filed and served.

Rule 233 (1) & (2)

No counterclaim in motion proceedings.

Sumbureru v Chirunda 1992 (1) ZLR 240

Proof of service to be filed.

Rule 233 (2)

If no notice of opposition and opposing affidavit respondent barred.

Rule 233 (3)


3

Applicant’s Answering Affidavit/s

Rule 234 (1)

Rice v Rice 1957 R & N 514

Kleynhans v Van der Westhizen No. 1970 (2) S.A. 742 A.D.

Mobil Oil Zimbabwe (Pvt) Ltd. v Travel Forum (Pvt) Ltd. 1990 (1) ZLR 67
at page 70

Remo Plastics (Pvt) Ltd v P J Rewinding and Auto Repairs (Pvt Ltd. HH
103/90

Crundall Bres (Pvt) Ltd. v Lazarus No & Anor. 1991 (2) ZLR 125

Filing and Service of answering affidavits.

Rule 234(2)

Proof of service to be filed.

Rule 234(2)

No further affidavits without leave.

Rule 235

De Mage (Pvt) Ltd v Zimtra Motors (Pvt) Ltd. HH 173/91

Set Down and where matter not set down within the time limits prescribed by the
rules Respondent can apply to dismiss.

Rules 236 & 237

Heads of Argument to be filed and served by Applicant when matter set down
and proof of service to be filed.

Rule 238 (1)

Heads of Argument to be filed and served by Respondent within 10 days of


receipt of Applicant’s Heads and not less than 5 days prior to hearing. If not filed
within this period Responded barred.

Rule 238 (2)


4

Hearing and Order

Rules 239 and 240

CHAMBER APPLICATIONS

Application by way of Form 29B supported by affidavit/s.

Rule 241 (1)

Where application is for default judgment i.t.o R57 or where facts evident from
record no affidavit/s required.

Rule 241 (2)

Service on all interested parties unless can be made ex parte.

Rule 242

Where can be made ex parte:

1. Where applicant is the only person interested in the relief which is being
claimed.

2. Where though others may be affected, matter is so urgent that there is no


time to give notice because there is risk of irreparable harm if delayed.

3. Where though others may be affected, there is a risk of perverse conduct,


which might defeat the purpose of the relief claimed if notice is given.

4. Where the order sought is for directions or to enforce any other provision
of the rules and in circumstances where no other person is likely to object.

5. Where any other acceptable reason is given why notice should not be
given.

Rule 242

If no service of application then applicant must set out reasons why in his
affidavit.

Rule 242 (2) (a)

Ex parte Applications require utmost good faith.


5

Van Lear v Begley Bros. 1957 R & N 902


Zimdef (Pvt) Ltd. v Minister of Defence & Ano. 1985 (1) ZLR 146 at page
151

If applicant legally represented then must be accompanied by certificate from


legal practitioner confirming his/her belief in the reasons for proceeding without
notice.

Rule 242(2)(b)

Heads of Argument may accompany application.

Rule 243

Submission to Judge when application urgent.

Rule 244

Submission to Judge when not urgent.

Rule 245

Judge powers:

1. May require deponent of any affidavit or any other person who may assist
in resolution of matter to give evidence under oath or otherwise.

2. Require applicants legal practitioner to argue matter.

Rule 246 (1)

Where provisional order requested will be granted if judge satisfied prima facie
case.

Rule 246 (2)

Before granting provisional order may require security.

Rule 246 (3)

Provisional Order to be in Form 29C, shall specify on whom papers and orders to
be served, how service is to be effected and shall specify the time within which
opposition should be filed. If interested parties generally given opportunity to
oppose final order then in Form 29D specifying return date and manner of
service of provisional order.
6

Rule 247 (2) & (4)

Matter will then proceed as if Court Application.

Rule 247

APPLICATIONS INVOLVING DECEASED ESTATES AND PERSONS UNDER A


DISABILITY

In case of deceased estate, provisionally insolvent estate or provisional


liquidated company, papers to be served on Master.

Rule 248

In case of person under disability (including minor) must first make chamber
application for appointment of curator, papers then served on curator who
prepares report.

Rule 249 (1)(2) and (3)

Time for notice of opposition runs from date of service on Respondent of


curator’s report.

Rule 294 (4)

APPLICATIONS INVOLVING DEEDS REGISTRY

To be served on Registrar of Deeds.

Rule 250.

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