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CIVIL PROCEDURE COURTS LB302

Lecturer: Rodgers Matsikidze
[email protected]
[email protected]

TABLE OF CONTENTS

A. GENERAL PRINCIPLES OF CIVIL PROCEDURE.

1. Introduction to Civil Procedure in Superior Courts.
1.1 What is civil procedure?
Civil procedure refers to the part of procedural law that regulates the
enforcement of civil law in the courts of law. It is necessary at this point
to distinguish between substantive and procedural law. Substantive law
embodies the person’s rights, duties and remedies given in a particular
situation. Procedural law, of which civil procedure is part, indicates how
these rights, duties and remedies are to may be enforced. Put differently,
substantive law determines the context and scope of a natural and
juristic person’s rights, duties and remedies whilst procedural law
provides the way in which the mentioned rights, duties and obligations
are to be enforced. It is also termed adjective law which deals with the
proof and enforcement of rights, duties and remedies. The knowledge of
substantive law is essential, but will not in its self-enable a legal
practitioner secure the redress for a client.

1.2 Distinction between Civil Procedure and Criminal Procedure.

Civil law and civil procedure enables parties to take action to enforce
rights and claim remedies or to defend actions brought against them.
Criminal procedure on the other hand enables the state, acting on behalf
of the public on one hand and the wrong person on the other. The parties
in civil proceedings act on their own behalf in enforcing or defending
claims. They are usually private parties but the state may litigate as a
party on its own behalf. Under civil procedure parties are referred to as
plaintiff and defendant or applicant and respondent whereas under
criminal procedure it is the State v the accused

1.3 Which Courts constitutes the Superior Courts of Zimbabwe?

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Every court in Zimbabwe is a creature of a statute. This is to say there is no

court in Zimbabwe that does not have a corresponding statute that speaks of
its establishment and defines its purpose and functionality. All the courts in
Zimbabwe are created by the Constitution of Zimbabwe and corresponding
Acts of Parliament.
 Section according to section 166 of the constitution, the Constitutional
Court is a superior court of record.
 Section 167 stipulates that the constitutional court is the highest court
in all constitutional matters and its decisions are bind all other courts.
 Section 168 of the constitution establishes the Supreme Court and
speaks of it as a superior court of record. According to section 169 of
the constitution the Supreme Court is the final court of appeal for
Zimbabwe, except in the matters over which the constitutional court
has jurisdiction.
 Section 170 of the Constitution refers to the High Court as a superior
court of record. Section 171 of the Constitution provides for the
jurisdiction of the High Court.

2. What is the link of civil procedure on access to justice and courts?

Civil procedure refers to the embodiment of rules emanating from the

constitution, the acts of parliament and the rules of court and common law that are
designed to regulate and manage the processes in court. Civil procedure ensures
that justice is accessed in courts due to the following reasons;

 It ensures that human rights are respected and given full effect through
proper enforcement
 It ensures the parties present their cases before an independent and
impartial judiciary. If a party is of the view that the judicial office is
biased, the rules allow for the application for recusal of the judge
 The rules ensure that the case is heard in an orderly manner. The civil
procedure rules can-not be departed from easily and hence each party is
fully aware of each stages in the proceedings
 The rules of civil procedure respect the right to be heard under the audi
alteram partem principle. Each party is accorded the right to present its
case or defense under the rules, present and rebut the evidence adduced.
 The pleadings allow the parties to reach a settlement saves precious time
and costs
 The rules also demand the parties to receive judgement that is reasoned
and legally motivated and to be delivered expediently
 It gives provisions for a party disgruntled by a judgment to seek review or
appeal to a superior court for determination on the same matter.

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On the other hand however, the civil procedure rules have been castigated for
impeding access to justice for the following reasons

 They are complicated to the lay person and would usually require the
services of a qualified legal practitioner.
 Litigation is costly and indigent people might lack the funds to pay for the
costs involved with court process and litigation
 The civil procedure rules allows parties to dismiss matters on technicality
which may delay justice or settling of the matter between the parties

3. Purpose of Civil Procedure

 Civil procedure is designed to offer the procedure for the enforcement of
substantive rights.
 It is put so as to regulate the procedures of the High Court thereby
ensuring order within the courts
 Designed to allow access to justice for parties
 To avoid parties from resorting to self help
 To provide a platform for parties reaching a settlement
 To allow for finalization of disputes between parties.
 To allow for the full operation of the rule of law and allow democracy to
prevail.

4. Distinction between Adversarial and inquisitorial Judicial system.

The Zimbabwean judicial system employs the adversarial legal system. The
adversary system of justice is the heart of the common-law legal systems. The
adversary system requires the parties themselves (and their legal representatives) to
drive and shape the legal dispute. The theory behind the adversary system is that the
process of each side putting forth its best arguments and evidence, and the ability to
cross-examine and test the opposing evidence is the best way to lead to the truth. A
distinction has to be made between the adversarial and inquisitorial system. Their
distinction boils down to the participation of the judge in the court proceedings.
 An inquisitorial system refers to the court proceedings where the judge
plays an active role in the court proceedings in ascertaining the facts
from the parties, going so far as to do a great deal of questioning of
witnesses, deciding which witnesses are to be called and determining
the manner in which the trial is to proceed.
 The adversarial procedure is one in which the court is merely an
impartial umpire or referee, leaving the proceedings entirely in the
hands of the parties. The system is based on the thesis that there are
two adversaries in every dispute: one contending for one thing and the
other rejecting it. The court only interferes in the proceedings to
enforce the rules of evidence and procedure; otherwise its duty is to
decide at the end, which of the two sides has been successful. The role

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of the judge in a civil trial under the adversarial system was expressed
by Denning LJ in 1
Jones v National Coal Board [1957] 2 Q.B 55 in the following terms:
The judge’s part … is to hearken to the evidence, only himself asking
… witnesses when it is necessary to clear up any point that has been
overlooked or left obscure; to see that the advocates behave
themselves seemly and keep to the rules laid down by law; to exclude
irrelevancies and discourage repetition; to make sure by wise
intervention that he follows the points that the advocates are making
and can assess their work; and at the end to make up his mind

a. The principles underlying the adversarial system

i. The principles are designed to ensure a fair legal process. The

principles stipulate that
 All persons must have equal and effective access to an independent
and impartial judiciary. This includes that the costs and the duration of
the litigation must be reasonable
 The parties to a civil hearing must be afforded equal opportunity to
present their respective cases. This is the audi alteram partem rule.
 The defendant is notified of the proceedings (hence the return of
service from the sheriff is crucial)
 Both parties are informed of the nature of the opposing parties’ case
and the grounds on which it is based.
 Both parties are afforded equal opportunity to present their respective
cases in court.
 The decision to institute or defend an action and to determine the
scope of the disputes lies with the parties and the parties decide on the
evidentiary material to be presented as proof of their respective cases.
This is referred to as the party control.
 Parties are allowed to use and direct oral communication during oral
presentations in court and must be allowed to adduce evidence in court
 The main proceedings must in principle take place in public
 The court has a constitutional obligation to consider evidence on an
objective and rational basis
 The court must give a reasoned and legally motivated judgment an
give it expeditiously.

5. The sets of rules and procedures in the Superior courts of Zimbabwe?

Rules that apply to civil procedure are found under the constitution, acts of
parliament, rules of court and common law. The statutes that set out the rules of
civil procedure for the superior courts in Zimbabwe are mentioned below;

1
Lovemore Madhuku, Introduction To Law Page 107

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CONSTITUTIONAL COURT

 The Constitution Of Zimbabwe

 The Constitutional Court Rules SI 61/2016
 The Constitutional Court Practice Directives No 1 and No 2 of 2013

THE SUPREME COURT

 The Constitution Of Zimbabwe
 The Supreme Court Act
 The Supreme Court Rules

THE HIGH COURT

 The Constitution Of Zimbabwe
 The High Court Act
 High Court Rules, RGN No. 1047/71

6. Action procedure and Application procedure

6.1 Form of proceedings
6.2 when and when not to use application procedure?
6.3 What happens when there is material dispute of facts?
6.4 Circumstances a matter may be dismissed
6.5 When a matter is referred Refer matter to trial O23 R159
6.6 When oral evidence on the dispute should be heard O23 R159.
6.7 Can there be claims in reconvention in motion proceedings?
7. Jurisdiction
7.1 General principles

7.2 Jurisdiction of The High Court

7.3 Principles of common law: jurisdiction of high court is exercised
7.4 When security costs may be required to confirm jurisdiction
7.5 Common law principles on Claims Sounding in Money (for payment of
money).
7.6 Suing a peregrinus defendant in Zimbabwe, procedure
7.7 Peregrine Plaintiff v Peregrine Defendant
7.8 Common law principles governing property claims
7.9 Common Law Limitations to Jurisdiction
7.10 The High Court has no jurisdiction if specifically excluded by
statute.
7.11 The High Court Has Jurisdiction In Constitutional Cases
8. Jurisdiction of The Supreme Court.
8.1 Appellate jurisdiction
8.2 Concurrent review jurisdiction.
8.3 Appeals in Supreme Court-procedure
8.4 Other appeals to Supreme Court

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9. Jurisdiction of the constitutional court.

9.1 Court of first instances in specified constitutional matters.
9.2 Confirmatory jurisdiction
9.3 Appellate jurisdiction.
9.4 Jurisdiction to hear referrals in terms of section 175.
10. Parties to proceedings.
10.1 Legal capacity
10.2 Parties
10.3 Joinder of parties
10.4 Citation of parties
10.5 Parties in application procedure
10.6 Parties in action procedure.
B. ACTION PROCEDURE

10. Action Procedure In The High Court

10.1 Demand
10.1.1 Requirements for a Demand

10.2 Summons
10.2.1 General
10.2.2 Declaration
10.3 Service of summons S20 (1) HC Act.
10.4 Service- Substituted Service

11. Service outside jurisdiction

12. Further procedure when action uncontested
12.1 Judgment by consent
12.2 Defendant default at trial.
12.3 Default Judgment
12.4 Rescission for default judgment
12.5 Offers and tenders in settlement – 022
12.6 Summary Judgment
12.7 Procedure O10
12.8 Dismissal of action
12.8.1 What is meant by frivolous or vexatious?
12.8.2. Powers of the Court
13. Amendment Of Pleadings O20
14. Uncontested divorce order
15. Procedure when matter is contested
15.8. Appearance To Defend
15.9. Defendant’s plea:
15.10. Ordinary Plea
15.11. Special Pleas

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16. Exceptions
13.1 Whether exception can be used to raise objection of jurisdiction
13.2 Procedure for excepting
17. Application to strike out
17.8. Procedure to strike out
18. Defendant’s claim in reconvention
19. Replication O19
20. Rejoinder
21. Closure of pleadings 0 16
21.8. Significance of Closure of Pleadings

22. Other common procedure arising during contested actions

22.8. Barring 012
22.9. Removal of the Bar
22.10. What is it that the applicant must establish to succeed in having bar
removed?

23. Further particulars – o21 r137(1)(d)

24. What is the degree of particularity?
25. Discovery Of Documents – O24
26. Pre-trial conference (026) (curtailment of proceedings)
26.8. Special Procedure for Harare: NI March 1995
26.9. Consequences of failure to attend pretrial conference-
27. Set Down
28. Trial - 049
28.8. Presentation of Evidence
28.9. Evidence in chief
28.10. Examination in Chief
28.11. Re-examination
29. Postponement (Adjournment of Trial Proceedings R445)
30. Judgment
30.8. Types of Judgments
30.9. Judgment for Plaintiff
30.10. Judgment for Defendant
30.11. Absolution from the instance.
30.12. Correction and alteration of judgment r449

C. APPLICATION PROCEDURE IN THE HIGH COURT

31. Applications: 032

32. General Rules Applying to Court and Chamber Applications
33. Court application
34. Chamber application
35. Application for contribution towards costs.
35.1 The Procedure
36. Application for Maintenance pendente lite

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36.1 Procedure
37. Application for Custody or Access pendente lite
38. Application for an urgent interdict.
38.1 Classification of Interdicts
38.2 Requirements for final interdict
38.3 Requirements for Interlocutory Interdict
38.3.1 Procedures
39. Application of interdict by way of exparte application
40. Application for Declaratory orders
41. Provisional sentence 04
40.1 Requirements to be Satisfied.
40.2 What is a Liquid Document?
40.3 Procedure in Terms of Rules R20
42. Interpleader
41.1 Procedure
41.2 Powers of the Court R210 (2)
41.3 How does the court make such decisions?
43. Declaratory orders
44. Heads of arguments in the High Court and Supreme Court
45. Court Orders and Judgments in Application Procedure.

D. ENFORCEMENT OF JUDGMENTS AND ORDERS

46. Execution

47. Application for stay of execution

48. Applications for Execution pending appeal.

48. Civil imprisonment

E. APPEALS AND REVIEWS

50. Review
a. Scope of the Review powers
b. Main differences between appeal and review
51. Review in the Supreme Court
52. Appeals in the Supreme Court
53. Heads of argument in the High Court and Supreme Court

F. COSTS
54. Costs

F. Constitutional Court Procedures

54. Reckoning of time (rule 3)
55. Ways in which matters are instituted before the constitutional court.
56. Departure from the rules and directives allowed (rule 5)

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57. Renunciation of agency

58. Service ( R 9)
59. Amicus curiae (R 10)
60. Duties of the registrar
61. Set down of matters (R 13)
62. Applications generally ( Rule 14)
63. Urgent chamber applications (r 15)
64. Court applications
65. Applications for direct access (r 21)
66. Applications in terms of Chapter 4 of the Constitution.
67. Challenge of the election of the President or a Vice President.
68. Referral of a matter to the constitutional court.(r24)
69. Reservations regarding a bill
70. Appeals to the Constitutional Court
71. Cross appeals
72. Application for condonation and extension of time
73.Procedure on appeals
74. Heads of argument
75.The hearing of matters
76. Security for costs
77.Application of Supreme Court rules.
78. Barring
79. Costs
80. Constitutional Cases

55. Action procedure and Application procedure-when and when not to use
application procedure?

a. Form of proceedings

There are two basic forms of proceedings which may be used for instituting
proceedings in the High Court

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(i)Application (by way of notice of application or affidavit) affidavit of

evidence.
(ii) Action – summons and
There are circumstances were application procedures are not used e.g in
matrimonial matters; claims for unliquidatd damages – it means they are not
yet been qualified by the court and difficult to ascertain.
See Room Hire Co. v Jeppe Street Mansions 1949 (3) SA 1155

(i) Claim for provisional sentence ie. O4 Rule 20 specifically says it should
be by way of summons.
(ii) Civil imprisonment (go by way of summons O41 Rule 368)

There are situations were required to use application procedures.

(1) where directed by statute

 There are also cases where it is in the discretion of the person instituting
proceedings to go by way of application or action what should influence a
party”

 If it’s a straight-forward money claim where you don’t anticipate any

opposition then it is less expensive to use action and application procedure.
Choose the less expensive one because if you use the more expensive one you
will be penalised with costs.

 Whether or not there is a material dispute of fact. If there is a material dispute

of fact then don’t use application proceedings.

b. Cases on material dispute of facts

In the case of Supa Plant Investment (Pvt) Ltd v Edgar Chidavaenzi HH 92-09
Makarau J highlighted that

“A material dispute of fact arises when such material facts put by the
applicant are disputed and traversed by the respondent in such a manner as to
leave the court with no ready answer to the dispute between the parties in the
absence of further evidence.”

The court in the case of Masukusa v National Foods Ltd & Anor1983 (1) ZLR
232 was of the view that

"Now in the present case I have not the slightest doubt that the applicant
should have realized that a serious dispute of fact was to develop as between

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himself and both respondents. Should I nevertheless, in the interest of saving

costs and generally getting on with the matter, condone the wrong procedural
approach? In my view it would be wrong to do so. There are a number of
reasons. In the first place this is a very clear example of the wrong case of
procedure. The conflicts of fact were glaring and obvious and were in fact
referred to in the applicant's affidavit. In the second place the claim for
damages was clearly illiquid and would patently need examination by way of
evidence".

Material disputes of fact were also discussed in the case of Carole Patricia
Williams And Anor versus Malcolm Sydney Williams Ors HH-12-02. It was
held that

“In this case the applicants must have known that there were disputes of fact
as they had initially issued out summons in case No HC 15403/98 relating to
the same parties and on similar issues. The respondents' opposing affidavit
has raised the same disputed issues as they had pleaded in the earlier case.
This case was subsequently withdrawn by the plaintiffs (applicant in this
case). Although the applicants sought to deal with them in the replying
affidavit, these are issues which can only be properly dealt with by adducing
evidence.”

Room Hire Co. V Jeppe Street Mansion (Supra)

This was an appeal from the decision of the WLD declaring the tenancy by the
appellant of certain premises belonging to the defendant to be null and void
under the provisions of s8 of Ordinance 46 of 1903. The grounds on which
the tenancy was declared null and void was that the premises were allegedly
being used as a brothel. The court had also ordered the ejectment of the
appellant on the premises. The applicant has resisted the application to eject
him on three grounds:

(i) that there was a material dispute of facts which could not be resolved
on affidavit evidence.
(ii) the evidence adduced on the affidavit was insufficient to establish the
alleged improper use of the premises.
(iii) They had been an unqualified acceptance of the rent by the
applicant/landlord. It was argued a waiver of any breach of tenancy.

Held: On the issue of waiver of breach the court held that the facts the
respondent had not been aware of the payment and had tendered return

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of payment when he became aware of it. It was stated the lease was
automatically terminated when realised that the premises were being
used as a brothel.

Held: On material dispute of fact the court held that for the defendant
to allege that there was a material dispute of fact he must establish a
real issue of fact which cannot be satisfactory determined without the
aid of oral evidence. He must not make a bare denial or merely allege
a dispute. The court concluded that the real dispute of fact had been
shown and that the court a quo should have hear oral evidence on the
issue in terms of the rules. The matter was referred back to court a quo
for proper exercise of discretion to hear oral evidence.

With regard to dispute of fact it has been stated in the case law that the court
must not hesitate to decide an issue on affidavit evidence merely because it
may be difficulty to do so. It should adopt a robust view and endeavour to
resolve the dispute without the hearing of oral evidence if this can be done
without doing an injustice to either party.

Soffiantini v Mould 1956 (4) SA 150

The appellant was the owner and lessor of certain premises and the respondent
was the lessee. The appellant was interfering with the respondent’s
occupation of the premises. The respondent applied for and was granted an
interdict restraining the appellant from interfering with his occupation of the
premises. The appellant appealed against the granting of interdict in that

(i) There was a genuine dispute of fact which could not be resolved on
affidavit evidence.
(ii) The Judge a quo should have directed oral evidence to be heard.

Held: It is necessary to make a robust common sense approach to a dispute

on motion (application proceedings) as otherwise the effective functioning of
the court can be harm strung and circumvented by the most simple and blatant
strategy. The court must not hesitate to decide an issue of facts on affidavit
merely because it may be difficult to do so. Justice can be defeated or serious
impeded and delayed by an over fastidious approach to a dispute raised in
affidavit.” 154

See Joosab & Ors v Shah 1972 (4) SA 298

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 If the court discovered that there is a material dispute of fact and

cannot be resolved on affidavit, it has 3 options;

(i) It can dismiss the application

(ii) The court can order the parties to go to trial in terms of O23 R159 of
HC Rules
(iii) The court can hear oral evidence on the issue in dispute in terms of
O23 R159.

Musevenzo v Beji & Anor HH-268-13

Mafusire J

In motion proceedings, a court should endeavour to resolve the dispute raised

in affidavits without the hearing of evidence. It must take a robust and
common sense approach and not an over fastidious one, always provided that
it is convinced that there is no real possibility of any resolution doing an
injustice to the other party concerned. Consequently, there is a heavy onus
upon an applicant seeking relief in motion proceedings, without the calling of
evidence, where there is a bona fide and not merely an illusory dispute of fact.

Where there is a genuine dispute of fact on the papers the court can proceed in
one of several ways: (a) it can take a robust view of the facts and resolve the
dispute on the papers; (b) it can permit or require any person to give oral
evidence in terms of r 229B of the High Court Rules if it is in the interests of
justice to hear such evidence; (c) it can refer the matter to trial, with the
application standing as the summons or the papers already filed of record
standing as pleadings; or (d) it can dismiss the application altogether, if the
applicant should have realised the dispute when launching the application.
Even where real disputes of facts emerge, relief can be granted if the facts
stated by the applicant, together with the admitted facts in the respondent’s
affidavit, justify such an order.

c. Dismissal of application

The court does that if the applicant should have been aware that there was a
material dispute of fact which cannot be resolved on affidavit evidence.

 Refer matter to trial O23 R159

Chirinda v Chitepo and Anor SC 42/92

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The appellant brought an application on the HC seeking cession and rights

and interests in immovable property in Chitungwiza which she said was
sold to her by Gideon Chitepo who was now deceased. The 1 st defendant
was the deceased heir, 2nd respondent was the Chitungwiza Town Council.
The appellant alleged that the deceased and herself had entered into an
agreement for the cession of the deceased rights and interests in the
property in May 1985. The appellant was to pay $1 200. The appellant
alleged that she paid the instalment of $600 in May 1985 and the balance
in March 1986. She alleged that the appellant and the deceased were
unable to sign the papers at Chitungwiza Town Council because the
deceased was employed in Kadoma and constantly visited his rural home
in Nyanga. The deceased had died on the 12th March 1989. There were
several dispute of fact the major being whether the signature on the
agreement of cession was that of the deceased. The other dispute was
whether the first respondent was cited as Washington Chitepo but the
actual name was Booker Chitepo. The third dispute was that the appellant
had alleged that the deceased had died from injuries involved in a car
accident but it was alleged that he died of natural disease and produced
death certificate as evidence.

The court held that fact one died a natural death and of the names was
immaterial. On issues of signatures, it was alleged that the first defendant
was privy to the negotiation. The court had dismissed application had
differed substantially with the one on the deceased drivers’ licence. On
appeal the court said that the dispute should have been referred to trial and
it gave two reasons
 They were other documents purportedly signed by the deceased
which had different signatures i.e marriage certificate, agreement
of sale entered into between the deceased and Chitungwiza Town
Council.
 The daughters of the deceased who were witnesses to the
agreement of cession alleged that they had one so under duress
The court held that these matters should only be investigated at trial. The
appeal was allowed.

See Duly’s Pvt Ltd v Brown SC 172/1993

See Jongani v Kadenhe SC 24/92

 Oral Evidence on the dispute should be heard )23 R159.

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The court should not order the hearing of oral evidence if that order
would have the effect of converting the application proceedings into a
trial. Option will therefore be to refer the matter to trial.

 Bhura v Lalla 1974 (2) SA 336.

It was an appeal from an order of HC setting aside a sale in execution.
The applicant’s father who was deceased had left the immovable property
in trust of his sons. The respondent was one of the administrators and
executors of the estate. The administrators had been found guilty of
maladministration and removed from the office as executors by the master
of the HC. However they had remained as administrators. During their
administration the estate incurred certain debts and certain creditors took
judgment against the estate amounting to 15 000. There were no liquid
assets in the estate although this could have been created if the HC had
been approached for permission to mortgage the movable property. The
administrators were unwilling to seek permission from the HC because it
will expose the fact that they had dissipated the liquid assets of the estate.
The executors appointed after removal of administrators misunderstood
their powers and thought that they could not act without the cooperation of
administrators. As a result of their inaction the immovable property was
sold in execution for $1000. The applicant applied for set aside of the sale
on the basis that the price was unreasonably law sum. The judge in the
HC was unable to resolve the issue on affidavit and adjourned the matter t
permit oral evidence and the subsequent hearing took a form of a trial.
The judge declared that the respondent had not proved that the price was
unreasonable although there was a possibility that the property was worth
more. He proceeded setting aside sale in that the property was not
supposed to be sold for a period of 10 years in terms of the will and that
the executors had failed in their duties in failing to mortgage the property
and that the interest of the beneficiaries of the will who was minor was
involved.

Held on appeal: On the question of procedure the court held that the
matter should have been referred to trial. Rule 159 on hearing of oral
evidence on application proceedings are not intended to convert the
proceedings into a trial.

On the merits the appeal was dismissed because the court agreed that that
interests of the minor should not be compromised. It also noted that the
HC is the upper guardian of all minors and has a duty to protect the rights
of minors.

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Read Barklie v Bridle 1955 SR 350

Masango v Masango HH 324/84
Shana v Shana 1990 (2) ZLR 129
Zimbabwe Bonded Fibre Glass Pvt Ltd v Peech 1987 (2) ZLR 338

No claim in reconvention in motion proceedings

Sumbureri v Chirinda 1992 (1) ZLR 240

Order 32 of the High Court rules 1971 which deals with applications on notice of
motion does not provide for claims in reconvention, as is provided for in the case
of trials under order 18. Rule 123 which provide that a claim in reconvention may
be proceeded with even though plaintiff’s action is stayed or discontinued, applies
only to trials and not to applications.

In notice of motion proceedings, the respondent should according to the rules of

court, confine his opposition to a defense, he should not, in the opposing affidavit
launch an attack on the applicant and make a claim in reconvention.

In light of the attitude of the parties to the proceedings and the fact that heavy
costs had already been incurred in litigating over the matter, the court was
prepared to invoke its powers in rule 46 of the high court rules 1971 to condone
departure from rules in order to prevent applicant having to start from scratch and
make a fresh application.

56. JURISDICTION
.
a. General principles

6.1.2 INTRODUCTION

Jurisdiction refers to the authority or the competence of a particular

court to hear a matter which has been brought before it and to grant
relief in respect of that matter. It is important for the parties or
counsel to the plaintiff as part of its preparations to a case to be able
to determine whether a particular court has the jurisdiction to hear
and determine on a matter. The effect of a party issuing a case in a
court with no jurisdiction to hear the matter might result in the court
refusing to adjudicate and dismiss the matter. The court may also
order the plaintiff to pay wasted costs. This may have great

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repercussions in the circumstance where the plaintiff’s claim has

prescribed. Such in such circumstances prescription will prevent the
plaintiff from succeeding even in the appropriate court.

It is important for the plaintiff to choose court with the right

jurisdiction because failure to do so allows the opposing party to
defeat the claim without entering into the merits or substance of the
claim

b. Jurisdiction Of The High Court

The High Court is created by the High Court Act Cap 7:06. It has jurisdiction
under both common law and statute. In terms of the common law the High
Court has inherent jurisdiction – it can order anything or determine any case
which is not prohibited by law.

The jurisdiction of the High Court is provided under section 171 of the
Constitution of Zimbabwe. Section 171(1) stipulates that

1) The High Court;

a. Has original jurisdiction over all civil and criminal matters
throughout Zimbabwe
b. Has the jurisdiction to supervise magistrates courts and other
subordinate courts and to review their decisions
c. May decide constitutional matters except those that only the
Constitutional Court may decide; and
d. Has such appellate jurisdiction as may be conferred on it by an Act of
Parliament.

 READ SECTION 171 IN FOR EXTENSIVE DETAIL.

Principles of common law: jurisdiction of hc is exercised

(i) actor sequitor forum rei: plaintiff follows the defendant to his or
her forum (the court with jurisdiction over that person). HC
have jurisdiction over all persons domiciled in Zimbabwe.
Domicile is a place which a person regards as a permanent home.
If the person is resident in Zimbabwe the court has jurisdiction
live and have some interests in Zimbabwe.

Katsande v Grant HH-380-12

doctrine of effectiveness-actor sequitor forum rei-doctrine of
submission

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The plaintiff and his wife, who hailed from Zimbabwe, were
married in Zimbabwe but moved to the United Kingdom and took
up residence there. While they were there, the defendant became
involved in an adulterous relationship with the plaintiff’s wife.
The plaintiff consulted a legal practitioner in Harare and brought
an action in the High Court in Zimbabwe, claiming $2.5 million
as damages. The plaintiff was granted leave to serve the
summons and declaration upon the defendant outside the
jurisdiction of the court. The summons and declaration were
served upon the defendant in the United Kingdom by the
Messenger-at-Arms. The defendant did not enter appearance to
defend and was barred. The issue of the court’s jurisdiction was
raised. A notice of amendment to the summons, alleging that
some of the adulterous acts took place in Zimbabwe, was filed
but not served on the defendant.

HELD: Jurisdiction means the power vested in a court by law to

adjudicate upon, determine and dispose of a matter. The time for
determining the jurisdiction of a court to entertain an action is the
time of the commencement of the action. An action commences
when the summons has been issued and duly served. Three
common law principles underpin the exercise by a court of its
jurisdictional powers generally. These are (a) the doctrine of
effectiveness; (b the doctrine of submission; and (c) the actor
sequitur forum rei rule. The doctrine of effectiveness essentially
means that jurisdiction depends upon the power of the court to
give an effective judgment. In casu both the plaintiff and the
defendant were peregrini. Both parties were resident in the
United Kingdom. The plaintiff claimed that he had not
abandoned his domicile in Zimbabwe, but domicile is not a
ground of jurisdiction in a delictual claim for adultery damages.
The court could not give effect to a judgment given in favour of
the plaintiff and against the defendant where there had been no
attachment of the defendant’s person or his property. Such a
judgment would be illusory, as it could not be enforced. Quite
apart from the fact that no arrest or attachment had taken place,
the plaintiff had not established any ratio jurisdictionis. The
cause of action arose outside the jurisdiction of the court. The
notice of amendment filed on behalf of the plaintiff did not clothe
the court with jurisdiction. At the time that the summons was

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issued and served there was no averment that the cause of action
had arisen in this jurisdiction.
The amount claimed in damages by the plaintiff was out of this
world and bore no relation to the prevailing awards in this and
other jurisdictions. A legal practitioner owes it to his injured
client to advise him of reasonable awards of damages, instead of
creating misdirected expectation in the minds of the client, who
looks up to the practitioner for advice. The cases decided in this
country did not support the amount claimed or any reasonable
fraction of it.

(ii) Doctrine of submission: At common law a person who is neither

resident or domiciled in Zimbabwe can submit to jurisdiction.

(iii) Doctrine of effectiveness: this is where the court refuses to

exercise jurisdiction in certain instances if it views that their
judgment will not be enforceable in Zimbabwe (brutum fulmen –
empty noise avoided).

Chiyangwa v Nehanda Radio & Anor HH-333-14

Matanda-Moyo J

The test for jurisdiction is mainly whether the court would be

able to enforce its judgment. The courts should only determine
matters where there is evidence that, at the end, such judgments
could be enforced. If there is no proof that the enforcement of
these judgments would be carried out, then the courts should not
entertain jurisdiction over such matters. The doctrine of
effectiveness underpins the rule that a court will not entertain an
action against a peregrinus unless there has been an arrest of his
person or an attachment of his property

 Security for costs

There are instances where a party to proceedings will be entitled to apply for
an order compelling a peregrinus to furnish security for an incola’s costs of
the case. The principles that apply to this order are provided in the case of
Redstone Mining Corp v Diaoil Group (zim) Ltd & Ors HH-438-15

 Redstone Mining Corp & Ors v Diaoil Group (Zim) Ltd & Ors HH-
438-15

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(Mathonsi J)

The respondents in this urgent application took the preliminary

point that the third applicant was a South African national and
therefore a peregrinus and should furnish security for costs. The
first and second applicants were companies incorporated in
Zimbabwe and thus were incola and not required to furnish
security.

HELD: There are no rules governing the grant of an order for

security for costs, which issue arises out of judicial practice. The
court has an exclusive discretion to make such order or not to. The
court has a discretion to dispense with security in exceptional cases
but should exercise that discretion sparingly. It is always difficult,
where an urgent application has been lodged, for the court to first
attend an application for an order for security for costs. By the time
such an application has been dispensed with, irreparable injury
would have been sustained by the applicant. Because, in an urgent
application, the court usually is required to grant interim relief, it
would be a judicious exercise of discretion to entertain the urgent
application first and let the party seeking an order for security to
make its application for an order pending the return date of the
provisional order, should such be granted.
What appears to be lost to litigants is that the requirement of
security for costs to be given by a peregrinus is not only not there
for the asking, it is not there as a weapon of defence by an incola
bent on preventing an approach to the court by a peregrinus. The
object of the rule relating to provision of security is to ensure that
an incola will not suffer loss if he is awarded costs of the
proceedings. It protects the interests of the incola. A party
requiring security for costs should make an application to the court
for an order to be made. Such party is not the court and therefore
cannot prevent the peregrinus from accessing the court until it has
been paid ridiculous sums of money as security. It is the court
which, in its discretion, should prescribe the amount to be paid,
usually to the registrar.
Here, there had been no application made by the respondents, no
figure had been proposed and indeed the issue of security for costs
was being used by the respondents to ward off an application. The
respondents appeared determined not to get to the merits of the

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matter. Security for costs in respect of the third applicant would be

dispensed with

 Zendera v Macdade and Anor 1982 (2) zlr 18

Because the respondents were peregrini the applicant sought for

the respondents security for costs which he could incur in the
contesting the motion proceedings

Held: Dismissing the application that the object of the rule

requiring a peregrinus to give security for the defendant’s costs is
to make sure that the incola will not suffer any loss if he is
awarded costs.

 Specific Principles

Matrimonial claims in terms of both common law and statute.

 At Common Law

Divorce, judicial separation and nullity of marriage.

a. Divorce: The court that has jurisdiction at common law is the court of the
matrimonial domicile at the time of institution of proceedings. It is the husband’s
domicile.
Le Mesurier v Le Mesurier & Ors 1895 AC 517. It was an appeal from the
SC of Silon. The appellant sued the defendant for divorce on the grounds
of her adultery with three respondents. The District Court in Silon granted
the divorce. The decision was reversed by the SC which intimated that the
D. Court had no jurisdiction to grant divorce. The marriage had been
solemnized in England. Both parties were not domiciled in Silon and
none of the co-respondents resided in Silon. As part of the divorce
settlement the wife was entitled to property which included some land not
in Silon.

Held: According to the common law the domicile for the time being of
the married pair affords the only true test of jurisdiction to dissolve their
marriage pg. 540.

Glen v Glen 1971 (3) SA 238

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The applicant instituted matrimonial action against the defendant seeking

a decree of divorce on the ground of cruelty. The respondent counter-
claimed for divorce on the grounds of adultery. In addition, the
respondent filed a special pleas in bar on the ground that the court had no
jurisdiction because he was born and domiciled in Zambia. In that case
the matrimonial home was Zambia.

Held: It was well established that the only court which has jurisdiction to
entertain an action for divorce is the court in whose area the parties are
domiciled at the time of the institution of the action. Pg 240. N.B
Institution of proceedings means time summons has been issued.

Requirement of domicile in matrimonial action.

 Kung v Kung SC 16/08

“It is trite in our law that the court’s jurisdiction in divorce matters is
based upon the domicile of the husband at the time the action is
instituted”

Requirements to acquire domicile of choice

 Chikwenengere v Chikwenengere SC-75-06

The requirements for the acquisition of domicile of choice

were listed as follows
1. The factum of residence
2. The animus manendi or intention of remaining
permanently.
3. Freedom of volition

b. Judicial Separation

Three are three courts which can have jurisdiction

(i) either the court of the domicile or residence of the parties at the
time of institution of proceedings for judicial separation
(ii) the court of domicile of either party at the time of institution of
proceedings
(iii) the court of the area of the celebration of marriage.

c. Nullity (Degree of Nullity)

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This depends on whether the marriage is void of voidable. With void

marriage it is invalid but through some occurrence it can be validated.
There are four courts which have jurisdiction:-

(i) court of area of celebration of a putative marriage

(ii) court of area of common domicile
(iii) court of the area of the plaintiff’s domicile
(iv)court of the area of the defendant’s domicile

d. Void Marriage

Exparte Oxtorn 1948 (1) SA 1001 CPD

The applicant applied for leave to institute proceedings for decree of

nullity by a process called edictal citation. The parties had been
married in England in 1936. The applicant subsequently discovered
that the respondent was married in 1929 which still subsisted. The
applicant had emigrated to the Case SA in 1947.

Held: Despite the fact that the marriage had been contracted beyond
the court’s jurisdiction (England) and the respondent had never been
resident or domiciled in Cape the court had jurisdiction by virtue of the
applicant’s domicile.

Ex parte Cathrall 1965 (2) SA 505 NPD

Application to sue by edictal citation. The applicant was born in

England and she had married the respondent in 1963 and the parties
separated two months later. She returned to England but the
responded remained in Australia. The respondent was a Zulu man
born in SA Durban who resided in Natal until February 1963 when he
sailed to Australia as a sea man and decided to stay there. The
applicant had information that the Australian Immigration Department
had allowed the respondent to stay in Australia. The applicant applied
for nullity of marriage on the ground that it violated the Prohibition of
Marriages Act of 1959.

Held: Court had jurisdiction because the respondent was domiciled

in SA irrespective of the fact that they had been allowed to stay in
Australia.

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N.B: Under common law, the law relating to voidable marriages is

similar to that common law relating to divorce. The court of the
matrimonial domicile has jurisdiction. Exparte Oxform (supra) pg
1014-1015.

S3 of the Matrimonial Causes Act 5:13 Act 33/85. It gives the HC

additional jurisdiction if the plaintiff or applicant is the wife. It applies
to cases of divorce, judicial separation and nullity of marriage.

There are three specific situations:

 S3(a) if the wife has been deserted by the husband and

immediately before the desertion the husband was domiciled in
Zimbabwe even if the husband has since changed domicile after
desertion.
 S3(1)(b) if the marriage was celebrated in Zimbabwe and the wife
was resided in Zimbabwe for a period of at least 2 years
immediately before the date of commencement of action and is still
resident in Zimbabwe at the time of commencement of action even
if the husband has never domiciled in Zimbabwe.

 S3(1)(c) if the wife is a citizen of Zimbabwe at the time of

commencement of action and she has been ordinarily resident in
Zimbabwe for a period of at least 2 years and is still resident in
Zimbabwe.
Read: Kennedy v Kennedy 1978 RLR 58

Braimah v Braimah HCH 66/96

Mandbaur v Mandbaur 1983 ZLR 26

 Claims Sounding in Money (for payment of money).

There are common law principles and this depends on whether the party
is an incola or a peregrinus. An incola is a person who is either domiciled
or resident within the court’s jurisdiction. A peregrinus is a person who is
neither resident or domiciled in Zimbabwe or within the court’s
jurisdiction.

(a) Whether the plaintiff is an incola or a peregrinus.

 Incola Plaintiff v Peregrine Defendant

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They are three different circumstances in which the courts have

jurisdiction at common law.

(1) If the defendant submits to the court’s jurisdiction (doctrine of

submission)
(2) If it is the court within whose area of jurisdiction the cause of
action arose. Cause of action is not enough because of the doctrine
of effectiveness. The court will not hear the claim unless the
peregrine defendant either had no property in Zimbabwe which can
be attached to confirm the jurisdiction of the court or the peregrine
defendant is in Zimbabwe and can be arrested to confirm the
jurisdiction.

Suing a peregrinus defendant in Zimbabwe, procedure

 Wenzhou Enterprises v Chen HH-61-15

Makoni J

The general rule in our civil practice and procedure is that a person
domiciled and resident in a foreign country cannot be sued in our courts as
they do not have jurisdiction over that person. For that reason there is
usually need for an attachment ad fundandam jurisdictionem of that person
or his property in order to make him amenable to the jurisdiction of the
court. Such person or his property can only be attached while he it is
within the jurisdiction of the court and only after the attachment order has
been issued by the court. Although the main object of the attachment is to
find or confirm jurisdiction, a further object of the attachment is to furnish
an asset against which execution can be levied to satisfy the judgment
which may be given so that the court’s sentence will not be rendered
nugatory. However, a peregrinus may submit to the jurisdiction of the
court. Submission can take many forms, which can run from a formal
consent contained in a written contract to a consent from the bar.
Submission can also be implied. An implied submission to jurisdiction
must be clear so as to establish it as a legal certainty. Failure to defend
legal proceedings instituted does not necessarily constitute submission to
the jurisdiction of the court, nor can the fact that a defendant contested
another issue, in addition to the issue of jurisdiction, be construed as a
clear tacit acceptance by the defendants of the court’s jurisdiction.
However, where the defendant pleads to the merits without contesting the
court’s jurisdiction, or files a notice of opposition and heads of argument,
it can be said that he has submitted to the court’s jurisdiction. If there had

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ever been an intention to contest jurisdiction, the issue should have been
raised in limine, before the adjudication on the merits. Raising the issue
only on the day of the hearing would indicate that there never was an
intention to contest the issue of jurisdiction. Court – local court –
customary law procedure applicable rather than general law – functus
office

 Fairdrop (Pvt) Ltd v Capital Bank Corp Ltd & Ors HH-305-14

(Mathonsi J)

(Judgment delivered 18 June 2014)

A person domiciled and resident in a foreign country cannot be sued in

this country as the courts have no jurisdiction over that person. For that
reason, there is need for an attachment ad fundandam jurisdictionem of
that person or his property in order to make him amenable to the
jurisdiction of the court. Such person or his property can only be attached
while he or it is within the jurisdiction of the court and only after an
attachment order has been issued by the court. The attachment order
should be issued by the court before the summons is issued against that
person. The presence in the country of unspecified and undefined property
belonging to the defendant or the debt which is the subject of the dispute is
not enough for the court to exercise jurisdiction. The existence of a claim
in Zimbabwe, which claim is the subject of the dispute, no matter how
substantial that claim is, cannot satisfy the requirement relating to
jurisdiction. Where a peregrinus is being sued, even if it has property in
Zimbabwe, the plaintiff must first seek and obtain an attachment order to
found or confirm jurisdiction, as the case may be. Even if the court were to
act in terms of s 15 of the High Court Act [Chapter 7:06], which allows
the court to direct service of process without an attachment order, it can
only do so if satisfied that the person or his property is within Zimbabwe
and is capable of attachment or arrest.

 Gwisai v Shamuyedova & Ors HH-623-15

Judgment by Uchena J

Under s 15 of the High Court Act [Chapter 7:06], the court may exercise
jurisdiction over a peregrinus

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(a) founded on or confirmed by the arrest of any person or attachment of

any property;
(b) who is or which is in Zimbabwe, and
(c) can permit or direct the issue of process, for service in or outside
Zimbabwe
(d) without ordering such arrest or attachment. This means that if the
property or person is outside the country it or he cannot be attached or
arrested. The absence of a person who can be arrested or property which
can be attached to found or confirm jurisdiction is a critical consideration
in deciding whether or not the court has jurisdiction and can issue process.
The absence of a person who can be arrested or property that can be
attached has the effect of defeating the principle of effectiveness, which is
central to the issue of whether or not a court has jurisdiction. However, if
the court believes that there is a person to be arrested or property to be
attached to found or confirm jurisdiction within Zimbabwe, it can grant an
application for edictal citation. The issuance of that process will, because
of the presence of a person or property to be arrested or attached to found
or confirm jurisdiction, itself found or confirm the court’s jurisdiction

 Thermoradiant Oven Sales (Pty) Ltd v 969 (2) SA 295 AD.

The plaintiff was incola and defendant peregrinus. The plaintiff purchased
a bakery oven form the defendant for R16 000. The oven was installed in
the plaintiff’s bakery. The plaintiff had paid almost R13 000 upon
delivery. The balance of about R3000 would become payable after the
oven had been tested and found to be satisfactory. The oven was found
not to be in accordance with the warranties given. The plaintiff cancelled
the contract and claimed damages of R22000. The defendant denied
liability and counter-claimed the outstanding balance of R3000. The
plaintiff applied to attach the defendant’s claim to found jurisdiction. The
plaintiff succeeded and the defendant appeared.

Held: It is established that an existing claim by the prospective peregrine

defendant against the prospective incola plaintiff is attachable to found
jurisdiction in the proposed action . However the plaintiff can not attach a
claim which it is denying – cannot approbate and reprobate whether the
value of the property to be attached should bear some relationship to the
claim.

Held: Decided that the property should confirm with the requirements of
the doctrine of effectiveness although it does not have to be sufficient to

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satisfy the judgement which may be given in the case – it must not be
trifling value.

Where there is attachment of property or arrest of the peregrine to found and

create jurisdiction (Thermodiant (supra)

 Central African Airways Corporation v Vickers Armstrong Ltd 1956 (2)

SA 492.

This was an appeal from the decision of the HC-S-Rhodesia. The claim
arose from the loss of an aircraft whilst on a flight over Tanganyika
(Tanzania). The plaintiff was incola and defendant peregrinus. The
aircraft had been supplied by the defendant. The crush was caused by the
breakup of the air craft following the fracture of a win which was caused
by collision of a bolt hole. It was alleged that the defendant had been
negligent in that he had used an un plated bolt which was susceptible to
corrosion and yet did not make the bolt accessible to inspection nor
indicate that the inspection was necessary.

The plaintiff’s claim was for 199.84 and the plaintiff sought to attach a
debt owed to defendant of 399. The plaintiff sought to attach to found
jurisdiction. The court discussed the relevant authorities of arrests and
attachments to found jurisdiction ad concluded that Roman-Dutch
common law position is that an incola plaintiff can attach the property of
the peregrine defendant to found jurisdiction even though there is no other
ground to jurisdiction.

 Peregrine Plaintiff v Peregrine Defendant

i. The court will have jurisdiction if there is submission to the

jurisdiction of the court. By instituting proceedings in that it
would have accepted jurisdiction.

ii. If the cause of action arose within its area and there is attachment
of property or arrest of the peregrine defendant to confirm
jurisdiciton.

iii. S15 of the HC Act provides that actual attachment of the property
or actual arrest of the defendant is not necessary as long as it has
been established that there is indeed property which can be
attached within the jurisdiction or that the peregrine defendant is

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actually within the jurisdiction and can be arrested. This was

emphasised in

 Exparte Motor Construction Ltd 1962 (2) SA 664.

Facts: Application for leave to attach on asset in order to confirm

jurisdiction. To found jurisdiction was wrong because plaintiff
was incola. The defendant was a preregrine from Portuguese East
Africa Durban. The property attached was a bull dozer engine
which was within the court’s jurisdiction. The court confirmed the
meaning of s15 which states that no actual attachment is necessary
unless there are special reasons. The court gave examples where
the plaintiff seeks actual attachment.

Where property is attached to found or confirm jurisdiction is the

subject matter of dispute in question so as to prevent its removal
from other jurisdiction.

Where the property sought to be attached to found or confirm

jurisdiction is the only property that the peregrine defendant has
within the jurisdiction and there is a danger of its removal from its
jurisdiction.

The court emphasised that it is important to state value of the

property if the plaintiff seeks attachment because if the value
greatly exceeds the claim then it might be inequitable to attach.
Conversely if the value is much less than the claim although not
trifling then it might not be necessary to order attachment.

In this particular case a leave to attach property was granted

because there was a danger it might be removed.

S15 does not create a new ground for jurisdiciton for the HC in
situations where defendant is peregrine. Where neither the
peregrine defendant nor his property is within the jurisdiction of
the HC then the court has no jurisdiciton.

 African Distillers Ltd v Zietkiewiz 1980 ZLR 135

Both the plaintiff and defendant were peregrin. It was an action for
damages arising from breach of contract and the parties were seeking to

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rely on s15. The court had no jurisdiction because neither the property of
the peregrines nor the person was unavailable within the jurisdiction of
Zimbabwe or attachment for arrest.

N.B An artificial person is a company incorporated in Zimbabwe is an

incola or if it is registered in Zimbabwe. All those incorporated outside
Zimbabwe are peregrin.

 Property Claims

In terms of immovable property the court that has jurisdiction in relation

to a claim for immovable property is the court within whose area of
jurisdiction the property is situated.

 Eilon v Eilon 1965 (1) SA 703 AD

In relation to movable property the situation is the same although it is still

not clear whether if the defendant if the defendant or peregrinus they
should be attachment to confirm jurisdiction

 Voicemail Ltd vs Freighlink Malawi 1987 (2) ZLR 22.

Both parties were peregrine. The plaintiff had sold the defendant a
quantity of peas in Malawi for delivery to India via Harare and Beira.
Half of the peas were shipped to India in terms of the contract but while
the other half were still in Harare the defendant terminated the contract.
The plaintiff applied to the HC for leave to attach a consignment in
Harare, confirm jurisdiction of the court, a claim for specific performance.
The HC decided against the plaintiff on the basis that the intended action
was a personal right rather than a real right. Alternatively the HC refused
application on the basis of the balance of convenience was in favour of the
matter being heard in Malawi than in Zimbabwe. On appeal the SC held
that the HIC had jurisdiction on the baiss of forum rei state (court of the
place where the property was situated) and this applies whether the right
claimed in relation to a particular property is a real or personal right.

Read Granger v Minister of State (1984 (1) ZLR 194.

 Common Law Limitations to Jurisdiction.

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Fugitives from justice have no audience in the court e.g a person who ran
away from legal obligations.

 The Prosecutor General v Shokorino Choga

High Court of Zimbabwe (Harare)

HH 255/15

The subject matter of the case is the transfer of an immovable property of

substantial commercial value. In a divorce settlement in 2008, the first
respondent signed a court order in which amongst other things, he agreed
to transfer property in question to his second born son. The first
respondent defied the court order and proceeded to encumber the property
in favor of the second respondent through a mortgage bond to secure a
debt of us$50 000. The debt was incurred with the knowledge of a court
order to the contrary. The 1st respondent failed to disclose to the second
respondent of the fact that the property was subjected to a court order and
this amounted to fraud by omission. In the present case the 1st respondent
was in default and was suspected to be in South Africa.

Held I take the position that until the warrant of execution is executed, the
first respondent remains a fugitive from justice

Further Held the first respondent violated section 8 of the Money

Laundering and Proceeds Act and therefore section 86 of the same act
applied to him. The first respondent was found guilty of contempt of court
by the magistrate hence his evasion from the jurisdiction fearing
committal makes him a fugitive from justice. Section 86 of the money
laundering act bans a fugitive from justice from having any right of
audience in the courts.

 Minister of Home Affairs v Biekle 1983 (1) ZLR 99

If the courts are to fulfil their obligations under the constitution they
cannot, save in worst exceptional circumstances, deny an aggrieved person
access to them. They should not deny a person an opportunity to seek their
protection unless he has, by his conduct put himself outside the court or
unless it is plain that the contempt of which he may be guilty itself
impedes justice.

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Held as no process either judicial or executive has been issue against the
respondent, he could not be held liable in contempt either of any process
or of the law. Respondent had gone to South Africa for the holidays after
being detained, convicted and fined for some offences

 Subject matter – outside the jurisdiction of Zimbabwean courts e.g

immovable property situated outside Zimbabwe. Go to the place and
property is situated.

 First National Bank Of Namibia V Kame 1999 (2) ZLR 269 (H)

The applicant bank sued for judgment on a mortgage bond securing a loan
on the purchase of property in Namibia. It also sought an order seeking the
property to be specially executable.

Held; that the courts of Zimbabwe have no jurisdiction to make such an

order. It would be necessary for the applicant to seek from a court in
Namibia recognition of the Zimbabwean court’s decision. Judgment
would otherwise be entered for the plaintiff.

 Revenue law is subject to bilateral agreements but revenue laws of

another country cannot be enforced in Zimbabwe.

 Political law formed in other country.

Read: A critique of the above done by P. Nherere 1986 ZLR Vol. IV 173

c. INHERENT JURISDICTION

 Inherent jurisdiction refers to the power of the court to hear and

adjudicate on any matter that is not prohibited by a statute. This
inherent power is accorded to superior courts in Zimbabwe.

 The High Court has no jurisdiction if specifically excluded by statute.

 Moyo v Gwindigwi NO and Anor High Court Bulawayo HH 168/11,

Mathonsi J

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Applicant was employed by the respondent as a quality controller. Was

dismissed following a disciplinary hearing. She appealed to the
Manufacturing Director who upheld the disciplinary committee’s decision.
She further appealed to the Director of Corporate Services who dismissed
the appeal. The director advised her to appeal to the Labor Court. Instead
she filed an urgent application and a review application with the High
Court. Section 89 of the Labor Act was referred to. It provides that

“No court other than the Labor Court shall have jurisdiction in the first
instance to hear and determine any application, appeal or matter referred
to in section 1”

HELD section 89(6) is clear and unambiguous that “no court” has
jurisdiction over matters falling under the purview of the Labour court.
Thus court does not possess the machinery to jealously guard its inherent
jurisdiction where the legislature has specifically taken it away.

See also: Munodawafa v District Administrator, Masvingo, & Ors HH-571-15,

where it was held that constitutionally, as provided for by s 171, the High Court
has inherent jurisdiction to hear all civil and criminal matters throughout
Zimbabwe. The High Court is therefore always a forum of jurisdiction that can be
selected by the parties and the court will exercise its jurisdiction where it is clear
that it should do so. Critically, however, where domestic remedies for resolving
the issue are provided, as here, the court will want to know why it should exercise
its inherent jurisdiction if such remedies have not been exhausted. There was no
reason why the remedies provided in s 283 of the Constitution should not be
exhausted first.

The High Court can not invoke its inherent powers to take away the powers of
another court given by statute.

See the case of Karimatsenga v Tsvangirai & Ors HH-369-12 (Guvava J)-The
applicant and the first respondent were lovers. The applicant became pregnant by
him. She claimed that thereafter he sent his representatives to the applicant’s
family and married her in terms of customary law. The applicant proceeded to the
first respondent’s rural home where she stayed with the latter’s mother for two
months. When the applicant was 7½ months pregnant she suffered a miscarriage
and lost the baby. Subsequently, she learned that the first respondent was going to
marry the second respondent in accordance with the Marriage Act [Chapter 5:11].
Fearing that if the first respondent were to marry the second respondent in terms
of the general law she will cease to be his wife by operation of law, the applicant

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sought an urgent order to stop the proposed marriage. The first respondent,
although admitting a relationship with the applicant, denied having married her in
terms of customary law. The respondents raised a number of defenses, the first of
which was that the court had no jurisdiction to give the order applied for. Their
argument was that the legislature had appointed through statute the persons who
should deal with an objection to a marriage. The applicant’s argument was that
the High Court had inherent jurisdiction to deal with all matters.
It was held that each court is a creature of statute, and its powers are created and
defined by statute. If one court were to claim that it has same inherent power to
overrule another court, instead of a power specifically created by statue, in effect
it would be claiming the power to nullify the body of statute law which
specifically relates to the establishment and powers of each of the civil courts in
the country. The High Court cannot invoke its inherent powers to take away
powers which have been given to another court or person in an Act of Parliament.
Section s 19 of the Marriage Act sets out the procedure to be adopted by a person
who wishes to object to a marriage. An objection must be lodged with the person
publishing banns of marriage, the magistrate who issues a marriage licence, or the
marriage officer who is to solemnise the marriage. Once the applicant became
aware of the intended marriage she should have lodged her objection in writing
with to the marriage officer who was to solemnise the marriage. As a magistrate
had issued a marriage licence, she could also have lodged an objection with the
magistrate. It was not for the High Court to usurp the powers of the magistrate
and the marriage officer and take over their functions. If the court were to use its
inherent powers to take over the functions of the lower courts, that would be
tantamount to amending legislation through the back door.

See the case of Nyaguwa v Gwinyai 1981 ZLR 25

In that case the petitioner and respondent had entered into a contract of lease in
respect of business premises on the 15th of July 1976. The monthly rental was
$120.00 payable in cash in advance at the shop on or before the 5 th day of the
month. Upon breach of the contract the landlord (respondent) was entitled to
cancel the lease, eject the tenant regardless of any previous acceptance of late
payment. In the lease agreement the parties had agreed to submit to the
jurisdiction of the magistrate court Salisbury in respect of any case relating to the
agreement. In December 1980 the respondent issued summons claiming
cancellation of the agreement and ejectment of the petitioner on the basis those on
14 different occasions between February 1979 and June 1980 the petitioner had
paid later than the 5th day of the month. The petitioner did not see the summons
so a default judgement was entered and a warrant of ejectment was issued. The
petitioner saw the warrant when it was served on 16 th January 1981. On the 19th
of Jan 1981 the petitioner filed a petitioner with the HC seeking the order

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restoring the property to him pending the application for rescission of default
judgement granted by the magistrate’s court. The petitioner was relying on the
High Court’s jurisdiction to remedy injustice.

IT WAS HELD that neither the HC nor any other court may overrule the decision
of another court save the extent that power to overrule such a decision has been
conferred upon it by statute.

FURTHER IT WAS RULED that the application by the petitioner should be

dismissed because the High Court had no jurisdiction to interfere with the
proceedings of the magistrates Court.

d. THE HIGH COURT HAS JURISDICTION IN CONSTITUTIONAL

CASES

The constitution of Zimbabwe gives the High Court the power to adjudicate over
constitutional matters. It provides that the High Court can hear and determine on
constitutional matters with the exception of those only the Constitutional Court
can entertain. This is provided for in the case of Tetrad Investments Bank Ltd v
Largedata Enterprises (Pvt) Ltd 2015 (2) ZLR 282

In the case of Tetrad Investments Bank Ltd v Largedata Enterprises (pvt) Ltd
2015 ZLR (2) 282, it was held that section 171(1) of the constitution confers
jurisdiction on the high court in constitutional matters except those that only the
constitutional court may decide. In a constitutional matter not reserved for the
constitutional court, the high court has jurisdiction to determine the constitutional
issue and is not obliged to refer the matter to the constitutional court. Further, the
exercise of this jurisdiction is not dependent on whether the raising of the
constitutional matter is frivolous or vexatious.

In the case of Net-One Cellular (Pvt) Ltd v Min of Labour & Anor HH-211-15
(Makoni J) (Judgment delivered 25 February 2015.
In an application brought before the coming into effect of the 2013 Constitution,
the applicant sought to challenge the constitutionality of s 82(1)(a) of the Labour
Act [Chapter 28:01] and ss 2(a), 33 and 36 of the Collective Bargaining
Agreement (CBA) for the Communications and Allied Services Industry,
published in SI 1 of 2012, in terms of which the Agreement was deemed to be
binding on the applicant, although it had not been a party to its formulation and
had no wish to be a member of the relevant national employment council. It
argued that its rights of freedom of association under s 21(1) of the 1980
Constitution were being infringed and that its right under s 16 not have its

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property compulsorily acquired was infringed by being made to pay subscriptions.

The respondents argued that the High Court had no jurisdiction in constitutional
matters and that the matter should be decided in the Labour Court.

The Court held that High Court has jurisdiction in constitutional matters and is
entitled to rule on whether breaches of the Declaration of Rights or other
violations have occurred. Under s 13 of the High Court Act [Chapter 7:06], the
court has “full original civil jurisdiction over all persons and over all matters
within Zimbabwe”. A civil matter is any case or matter which is not a criminal
case or matter, and clearly includes constitutional matters.

57. JURISDICTION OF THE SUPREME COURT.

The Supreme Court of Zimbabwe is the highest court in all appeal matters in
Zimbabwe, which are not constitutional in nature. It is the court of last resort and the
highest court of appeal in Zimbabwe. Its operations are governed by the Constitution
and the Supreme Court Act [Chapter 7:13]. The composition of the Supreme Court is
provided for in section 168 of the Constitution. The section states that the court
should be composed of the Chief Justice and the Deputy Chief Justice and no fewer
than two other justices of the Supreme Court. If the services an additional justice are
required on the Supreme Court for a limited period of time, the Chief Justice is
allowed by the constitution to appoint a judge of the High Court, or a former judge to
act as a judge of the Supreme Court.

 Jurisdiction in civil appeal cases

The jurisdiction of the Supreme Court is provided in section 169 of the Constitution
of Zimbabwe. Section 169 stipulates that

1) The Supreme Court is the final court of appeal for Zimbabwe, except in
constitutional matters over which the constitution has jurisdiction.
2) Subject to subsection 1, an act of parliament may confer additional
jurisdiction and powers on the Supreme Court.

The constitution stipulates that the Supreme Court is the final appellate court. The
court has no original jurisdiction and therefore it is not a court of first instance. Its
jurisdiction and procedure is elaborated in the Supreme Court act under chapter
IV of the same.

Section 21 of the Supreme Court Act provides that

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(1) The Supreme Court shall have jurisdiction to hear and determine an appeal in
any civil case from the judgment of any court or tribunal from which, in terms
of any other enactment, an appeal lies to the Supreme Court
(2) Unless provision to the contrary is made in any other enactment, the Supreme
Court shall hear and determine and shall exercise powers in respect of an
appeal referred to in subsection (1) in accordance with this Act

Section 22 of the Supreme Court Act provides for the powers of the Supreme
Court. It provides that
1) Subject to any other enactment, on the hearing of a civil appeal the Supreme
Court
(a) shall have power to confirm, vary, amend or set aside the judgment appealed
against or give such judgment as the case may require;
(b) may, if it thinks it necessary or expedient in the interests of justice—
(i) order the production of any document, exhibit or other thing connected
with the proceedings, the production of which appears to it necessary for
the determination of the case;
(ii) order any witness who would have been a compellable witness at the
trial or proceedings to attend and be examined before the Supreme Court,
whether he was or was not called at the trial or proceedings, or order the
examination of any such witness to be conducted in the manner provided
by rules of court before any judge of the Supreme Court or before any
officer of the Supreme Court or justice of the peace or other person
appointed by the Supreme Court for the purpose, and allow the admission
of any deposition so taken as evidence before the Supreme Court;
(iii) receive the evidence, if tendered, of any witness, including any party,
who is a competent but not compellable witness and, if the appellant
makes application for the purpose, of the husband or wife of that party in
cases where the evidence of the husband or wife could not have been given
at the trial or proceedings except on such application;
(iv) having set aside the judgment appealed against, remit the case to the
court or tribunal of first instance for further hearing, with such
instructions as regards the taking of further evidence or otherwise as
appear to it necessary;
(v) where any question arising at the appeal involves prolonged
examination of documents or accounts or any scientific or local
investigation which cannot, in the opinion of the Supreme Court, be
conveniently conducted before that court, order the reference of the
question in the manner provided by rules of court for inquiry and report to
a special commissioner appointed by the Supreme Court, and act upon the

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report of any such commissioner so far as the Supreme Court thinks fit to
adopt it;
(vi) appoint any person with special expert knowledge to act as an
assessor in an advisory capacity in any case where it appears to the
Supreme Court that such knowledge is required for the proper
determination of the case;
(vii) issue any warrant necessary for enforcing any order or sentence of
the Supreme Court;
(viii) make such order as to costs as the Supreme Court thinks fit;
(ix) make any other course which may lead to the just, speedy and
inexpensive settlement of the case;
(x) may, if it appears to the Supreme Court that a new trial or fresh
proceedings should be held, set aside the judgment appealed against and
order that a new trial or fresh proceedings be held.

58. Cases on Supreme Court jurisdiction.

In the case of Kwaramba v Bhunu NO S-46-12 , Chidyausiku CJ, in chambers

ruled that the Supreme Court had inherent review powers-concurrent jurisdiction.
The applicant was one of the team of legal practitioners representing 29 persons
who were accused of murdering a police officer. The trial of the accused persons
had commenced in the High Court. The applicant, on behalf of the accused
persons, made a bail application, which the State opposed. The court, presided
over by the respondent, reserved its judgment. The trial continued while awaiting
judgment on the bail application. While judgment was pending on the bail
application, an article appeared in a newspaper stating the applicant had said that
the law was not being applied fairly and that justice was being politicised because
the accused belonged to a particular political party. The applicant admitted being
asked to comment on the manner in which the wheels of justice were turning in
the matter and that he expressed disappointment at the lengthy stay of his clients
in remand prison. He said that although the article was to some extent true, it
contained several inaccuracies, which inaccuracies probably created the wrong
impression in the minds of readers, including the presiding judge. The respondent,
disturbed by the article, summoned all the legal practitioners in the matter to his
chambers. There he expressed his concern over the contents of the article and
asked the legal practitioners to comment. The applicant indicated to the
respondent that the article was inaccurate and that there was no intention
whatsoever on his part to attack the court or make adverse comments. He tendered
his apology to the respondent if the wrong impression had been created. He
alleged that the newspaper had misquoted him or misrepresented him. He
assumed that the matter had been resolved, but when the respondent gave his

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decision on the bail application in court, he castigated the applicant for his
communication with the newspapers, accusing him of “demonising and attacking
the dignity and integrity of this court and the judiciary of this country in general”.
He described the applicant’s remarks as being “ill conceived” and “malicious”
and said that the applicant was bent on bringing the due administration of justice
into disrepute. He concluded by describing the applicant as “dishonest,
slanderous, contemptuous and unethical”. The applicant, aggrieved by the
remarks, requested that a judge of the Supreme Court give directions in terms of s
17(h) or s 25(3) of the Supreme Court Act [Chapter 7:13] that a review of the
matter be instituted.

It was held that before a judge of the Supreme Court issues directions in terms of
s 25(3) of the Act, he has to be satisfied of the existence of an irregularity that
needs determination or correction which has occurred. Generally speaking, an
irregularity occurs when a judicial officer takes into account factors that he should
not take into account or fails to take into account factors he should take into
account in the process of the making of a determination the judicial officer is
seized with. An irregularity also occurs where the law is misapplied or an
incorrect procedure is followed. The court a quo was seized with a bail
application. No misdirection or irregularity in the determination of the bail
application was alleged. The respondent’s remarks about the applicant were
obiter.

It was held that sections 17(h) and 25 of the Act confer concurrent review
jurisdiction on the Supreme Court with the High Court over inferior tribunals.
What this means is that a Supreme Court judge, in the exercise of jurisdiction
conferred by S 17 and 25 of the Act, has the same review jurisdiction as a High
Court judge. A judge cannot order the review of a judgment of another judge of
the same jurisdiction. Thus, from a jurisdictional standpoint, the request was not
competent.

The applicant did not seem to appreciate what is expected of him as a legal
practitioner and an officer of the court. The remarks ascribed to him did not only
scandalize the respondent but were also made while the matter was sub judice. A
time-honoured practice which has crystallized into law prohibits the making of
inappropriate statements on matters pending before the courts. The statements
ascribed to the applicant grossly transgressed the sub judice rule and clearly
constituted contempt of court, in that they scandalize the court by ascribing to it
political motivation in its judgment. The inescapable inference is that the remarks
were made not only to bring the court into contempt in the eyes of the public but
also in an attempt to influence the outcome of the bail application and

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consequently the course of justice. The applicant was lucky that he was not
prosecuted for contempt of court. He should have immediately issued a statement
disassociating himself from the contents of the article and denying that he ever
uttered the words ascribed to him by the newspaper. He should also have urgently
sought audience with the judge to assure him that he never said the words
ascribed to him. Instead, he only offered a wishy washy explanation upon being
asked about the matter.

However note provisions of S53 of the HC Act. In terms of that section if

somebody takes a matter to the HC which could have been heard in the
magistrate’s court then if that person is successful or if they are successful they
shall not recover any costs in excess of those which would have been recovered if
they had instituted the proceedings in the magistrate’s court. If not successful
they will be ordered to pay costs on a higher scale of a legal practitioner and
client.

 Bheker v Disablement Benefio Board SC 45/94 1994 (1) ZLR 353.

The appellant was injured whilst driving the army lorry as a result of which he
became disabled. He applied for disability compensation in terms of the state
service Disability Act. The application was made in terms of the Act to the
Disablement Benefits Board. The respondent refused his application on the
ground that his injuries had been caused by serious negligence or alternatively
serious misconduct on his part. He appealed unsuccessfully to the DB Appeal
Board and he made a further appeal to the SC.

Held: The SC had inherent jurisdiction dealing with matters such as the appellant
case like the HC.

The court noted that there was no right to appeal to the SC under the State Service
Disabilities Act. The court further held that the SC inherent jurisdiction extended
only to procedural matters. Chief Justice Gubbay as he then was quoted the
approval by the SA case of Chunguete v Minister of Home Affairs and Ors 1990
(2) SA 836 in which Flemming J stated at 848 G – H “what is appropriately
inherent jurisdiction is related to the court’s function towards securing a just and
respected process coming to a decision and is not a factor which determines what
order the court may make after due process has been achieved. That is a function
of the substantive law. The court always is charged with holding the scales of
justice. It is not within its task to add weights to the scales by detracting from a
right given by a substantive law or granting a right not given by the substantive
law:

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Held: The exercise of the inherent jurisdiction was entirely within the discretion
of the court.

59. JURISDICTION OF THE CONSTITUTIONAL COURT.

The jurisdiction of the Constitutional Court is provided for in section 167 of the
constitution. The section stipulates that
1) The constitutional court
a) Is the highest court in all constitutional matters, and its decisions on
those matters bind all the other courts;
b) Decides only constitutional matters and issues connected with
decisions on constitutional matters, in particular references and
applications under section 138(8) (b) and paragraph 9 (2) of the fifth
schedule; and
c) Makes the final decisions whether a matter is constitutional matter or
whether an issue is connected with a decision on a constitutional
matter.

2) Subject to this constitution, only the constitutional court may

a) Advise on the constitutionality of any proposed legislation, but may do
so only where the legislation concerned has been referred in terms of
this constitution;
b) Hear and determine disputes relating to election of the president
c) Hear and determine disputes relating to whether or not a person is
qualified to hold the office of vice president
d) Determine whether the parliament or the president has failed to fulfil a
constitutional obligation.

3) The constitutional court makes the final decisions whether an act of

parliament or conduct of the president or parliament is constitutional and
must confirm any order of constitutional invalidity made by another court
before that order has any force.

60. PARTIES TO PROCEEDINGS.

61. Legal capacity

PARTIES

Parties need to have legal capacity to use or defeat proceedings. Legal capacity is
also referred to as locus standi. Locus standi can be in general for natural persons
with the exception of certain category of people who are under legal disabiity e.g

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a) minor is sued in the name of guardian or in their own name assisted by the
guardian. If they have no guardian seek an order that a curator ad litem
be appointed. The same applies when the interests of the guardian
conflicts with those of the minor child.

(b) Mentally incapacitated: Any proceedings against them are instituted by a

curator ad litem.

(c) People declared insolvent: represented by the Trustee

(d) Woman married in community of property: husband institutes the action

(e) Prodigal: it’s a person who is financially irresponsible and is represented

by a curator bonis or ad litem.

(f) Alien /enemies – cannot sue – it’s a person in a country in a declared state
of war.

(g) Fugitives cannot sue

(h) MPs cannot be sued in terms of Privileges of Immunities Powers Act.

(i) Diplomats: Privileges and Immunities Act only in cases of governmental

nature

(j) President: s98 of the Constitution in his personal capacity. In his official
capacity he can be sued with the leave or permission of the court in terms
of R18 of HC rules.

Tsvangirai NO v Mugabe NO & Ors HH-273-12

Chiweshe JP

The Prime Minister brought an action against the President, in his official
capacity, to challenge the legality of the appointment of various Provincial
Governors (who were the other respondents) as being ultra vires. The
respondents took a point in limine that in terms of r 18 of the High Court
Rules 1971 the leave of the court was required to bring an action against
the President.

HELD: Rule 18 is intended to afford the President and judges protection

against frivolous actions that may be brought against them. This
application per se was neither frivolous nor vexatious; it was of national

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significance. It must be heard on the merits notwithstanding the provisions

of r 18, a course permissible under r 4C, which allows the court to direct,
authorise or condone a departure from any provision of the rules, where it
is satisfied that the departure is required in the interest of justice. In any
event, s 4 of the State Liabilities Act [Chapter 8:14] provides an absolute
right to bring proceedings against the President in his official capacity
provided he is cited by his official capacity and not by name. That is the
sole restriction. Had the legislature intended that the institution of any
such action or process be preceded by the grant of leave from the High
Court or Supreme Court, it surely would have said so. Certainly there is no
justification for reading such a requirement into the section. Nothing in r
18 of the High Court Rules could be understood to override either s 4 of
the State Liabilities Act, or any other provision of the Constitution, which
exhibits a contrary intention.

 locus standi

 A person must have an interest in the matter to institute proceedings. It has

been described as direct and substantial interest and real interest.

Makarudze & Anor v Bungu & Ors HH-8-15

defination of locus standi

The constitution for the third defendant, the Harare Municipal Workers’
Union, was registered in 1962. One of its 11 listed objects was to regulate
the relations between members and their employers, and to protect and
further the interests of members in relation to their employers.
Membership was open to employees of the Harare City Council. The
governing body of the Union was the second defendant, the Executive
Committee, members of which would be elected at the annual general
meeting and would serve for one year. They would be eligible for re-
election. They could be removed from office on the decision of a general
meeting, as well as by resignation, suspension, expulsion from the union
or absenteeism. The first defendant was the chairman of the executive
committee. The first plaintiff was the vice-chairman and the second was
chairman of a sub-committee of the union.
The plaintiffs sought a declaratur that the executive committee’s term of
office had expired; that the seats on the committee were vacant; and that
the first defendant had ceased to be a member of the union, having been

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dismissed by the council. They sought a consequential order directing the

union to hold elections for the executive committee.
The defendants opposed the relief sought, arguing (1) that the plaintiffs,
being mere members of the union, had no locus standi; (2) that the
plaintiffs had not exhausted their domestic remedies and should not have
approached the court; (3) that there had been an elective general meeting
in 2012; (4) that the first defendant was appealing against the ruling of the
Labour Court upholding the determination of an arbitrator that he had
been dismissed in 2010 and consequently the arbitrator’s ruling was
suspended; (5) that the union had a new constitution which opened up
membership, not only to employees, but to “any person” which wished to
abide by the requirements of the constitution.

HELD:Locus standi in judicio refers to one’s right, ability or capacity to

bring legal proceedings in a court of law. One must justify such right by
showing that one has a direct and substantial interest in the subject-matter
and outcome of the litigation. Such an interest is a legal interest in the
subject-matter of the action which could be prejudicially affected by the
judgment of the court. The court will be slow to deny locus standi to a
litigant who seriously alleges that a state of affairs exists, within the
court’s area of jurisdiction, where someone in position of authority, power
or influence, abuses that position to the detriment of members or
followers. If the plaintiffs seriously felt that the first defendant had
become ineligible to hold any office within the union, let alone to continue
clinging onto to the position of chairman, such a state of affairs would be
so intolerable that the court would not fetter itself by pedantically
circumscribing the class of persons who might approach it for relief. There
could be no better demonstration of, or justification for, locus standi in
judicio than the plaintiffs’ position in this matter. Undoubtedly, they had a
direct and substantial interest in the management of the affairs of the
union.

(2) The general view is that a litigant should be discouraged from rushing
to the courts before he has exhausted such domestic procedures or
remedies as may be available to his situation in any given case. He is
expected to obtain relief through the available domestic channels unless
there are good reasons for not doing so. However, the domestic remedies
must be able to provide effective redress to the complaint. Furthermore,
the alleged unlawfulness complained of must not be such as would have
undermined the domestic remedies themselves. The court will not insist on
an applicant first exhausting domestic remedies where they do not confer

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better and cheaper benefits. Here, the constitution of the union had no
provision dealing directly or indirectly with the plaintiffs’ grievances. The
first defendant had avoided or prevented the holding of any of the
constitutional

 Zimbabwe Teachers Association & Ors v Minister of Education and

Culture 1990 (2) ZLR 48.

Facts

They were teachers who had been dismissed in terms of the Emerging
Powers Maintenance of Essential Services Regulations SI 160A/89. The
Zimbabwe Teachers Association sought an order seeking (reinforcement
of) reinstatement of teachers. Dismissed teachers were also part of it. The
point in limine was that whether ZTA had locus standi.

Whether the 3 dismissed teachers who sought to be involved in the

proceedings could be joined at that stage.

Held: On the first one the court ordered that the teachers had real and
substantial interest in the matter. Secondly three teachers had sufficient
interest in the matter to be joined as parties.

 Sibanda & NPSL v Mugabe & Anor HH 102/94

Sibanda was the secretary general of the NPSL. He was suspended by

ZIFA and Mugabe was the Chairperson. The proceedings were brought
on review by Sibanda on the basis of jurisdiction, interest in the company
was biased, malice and seeking that the decision and punishment reached
were unreasonable.

The respondent claimed that the NPSL had no locus standi because it
sought no relief and no order was made against him by ZIFA and therefore
its interest in the outcome of the review was indirect. The response of the
NPSL was that they had the interest in the matter because as its secretary-
general Sibanda carried out various functions for it and saw the action
against Sibanda was actually an attack on them.

Held: The NPSL had direct and substantial interest in the matter therefore
they had locus standi to institute the review proceedings.

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Joinder of parties

Joinder of parties relates to a procedure where a party who is not cited in th summons is
added or party who is cited is removed at a later stage other than the summons or notice
of application. This is might be third parties who have an interest in the outcome of the
matter or those who will be legally affected by the court’s decision in the matter.

Rodger & ors v Muller & ors HH-2-10

Patel J

In terms of s 37 of the Parks and Wildlife Act [Chapter 20:14], the National Parks and
Wildlife Management Authority, with the concurrence of the Minister, may “grant
hunting or other rights over or in a safari area to such persons as he [sic] deems fit”,
subject to such terms and conditions as he [sic] may impose. The period of such rights
shall not exceed 10 years. While the non-joinder of a party is not necessarily and
invariably fatal to the continuance or determination of any matter, r 87(1) of the High
Court Rules does not absolve a litigant of the obligation to cite all relevant parties. The
discretion of the court in this regard must be exercised so as to ensure that all persons
who might be affected by its determination of the issues in dispute be afforded the
opportunity to be heard before that determination is actually made. The wording of s 37
means that the concurrence of the Minister is an essential statutory sine qua non to the
grant of any hunting rights in a safari area. Although it is the Authority that actually
administers and grants such hunting rights, it can only do so “with the concurrence of the
Minister” and “subject to such terms and conditions as he may impose”. Where the
Minister has already approved the grant of hunting rights, he must of necessity be
concerned with any dispute concerning the exercise or non-exercise of such rights. Where
legal proceedings are brought and the determination of the court will impact upon and
interfere with decisions already taken by the Minister, he is undoubtedly a highly relevant
party to the proceedings with a very direct interest in the outcome and determination
thereof. Failure to cite the Minister as a party would be fatal to the proceedings. The
stipulation in s 37 that the period of hunting or other rights shall not exceed 10 years
clearly means is that any single hunting concession granted cannot exceed the period of
10 years. It may at any one time be granted for the maximum period of 10 years or for
any shorter period. However, the provision does not preclude the grant of a further
concession to a prior holder who has held one or more concessions amounting to 10
years, so long as the new concession does not exceed the maximum period prescribed.
Practice and procedure – parties – joinder – non-joinder of possibly relevant

Barclays Bank of Zimbabwe Ltd v RBZ & Anor HH-477-13

Zhou J

The second respondent, the University of Zimbabwe, held a foreign currency account
with the applicant, a commercial bank. In 2007 the first respondent issued a directive
ordering the applicant, together with other authorised dealers to, inter alia, lodge with and
transfer to the first respondent all their corporate foreign currency accounts and non-

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governmental organisations balances by close of business on 2 October 2007. In

compliance with that directive the applicant transferred to the first respondent the money
held by it in the second respondent’s account. In 2012 the second respondent issued
summons against the applicant for payment of the money which was held in its account.
Having entered appearance to defend the claim, the applicant applied in terms of r 93 of
the High Court Rules 1971 for the joinder of the first respondent as a third party. The
applicant contended that it was entitled to be indemnified by the first respondent for the
amount being claimed by the second respondent. It argued that the question or issue of its
liability to the second respondent was substantially the same question or issue to be
determined as between the applicant and the first and second respondents.
The first respondent objected in limine to its citation on the ground that it should
have been given notice of 60 days as required by s 6 of the State Liabilities Act
[Chapter 8:14], as read with s 63B of the Reserve Bank of Zimbabwe Act
[Chapter 22:15]. Section 6(1) of the State Liabilities Act requires such notice
when a claim is instituted for money or for the delivery or release of any goods. It
was also argued from the bar that the claim against the first respondent had
prescribed. The applicant argued that this application was not such a claim, but
that in any event the court could condone the non-compliance with the notice
period.

Held: (1) the application for the joinder of the first respondent was not a claim for
money and fell outside the ambit of s 6(1)(a). The fact that the applicant claimed
an entitlement to contribution or indemnity does not transform the application for
joinder into the claim for money. The averment that the applicant was entitled to
contribution or indemnity was necessary to sustain the application for joinder.

(2) This would be an appropriate case for condonation. The first respondent
would suffer no prejudice by not being given 60 days’ notice of the application
for joinder, which had been filed nine months earlier. The first respondent had
ample time before being served with the pleadings in the main action to undertake
any investigations regarding the factual background to the proposed claim against
it. It would be aware of the institutions from whose accounts balances were
transferred to it pursuant to its directives. This was not a claim that arose from the
conduct of a single official or employee in some remote part of the country; it
arose from the first respondent’s directives.

(3) The defence of prescription was not sustainable. What triggers an application
for the joinder of a third party is the service of summons against a defendant (the
applicant in casu). The application can only be made after the applicant has
entered appearance to defend the claim instituted against it. From the time that the
summons in the main case was served and the applicant entered appearance to
defend, a period of three years had not passed when the application for joinder
was instituted. Thus the claim for joinder has not prescribed.

(4) The object of the third party procedure is to avoid multiplicity of actions
dealing with substantially the same subject matter and largely involving the same

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evidence. The inconvenience of requiring the parties to prove the same facts over
again is obviated, thereby saving time and mitigating the parties’ expenses. The
court has a discretion as to whether or not to order joinder. It will generally order
joinder of a third party if a prima facie case is shown, unless the joining of the
third party will embarrass the plaintiff or there are special circumstances
militating against such joinder. (5) Joinder would therefore be ordered.

In the case of Mugano v Fintrac & Ors HH-394-13 presided by Tsanga J The
applicant sought joinder of the first respondent, a registered trust called Fintrac, in
a matter in which the applicant was being sued by the second respondent for a
debt arising out of inputs received from it in the form of seed potato, fertilisers
and chemicals. The applicant was one of a group of 234 farmers in Nyanga who
received these inputs from the second respondent. The grounds for seeking
joinder were

(a) that the matter in which he was being sued could not be resolved without
hearing the evidence of the first respondent, which, he alleged, initiated the
relationship of all the parties involved in this matter. He claimed that the inputs
were in fact received through the first respondent. His argument was that, at all
material times, the farmers engaged with the first respondent through two of their
employees;

(a) the surety document that the applicant was alleged to have signed bore the
signatures of the first respondent’s two employees as witnesses. The matter could
thus not be heard without hearing their evidence as to when and where they
witnessed his signature. The first respondent objected to the joinder on the basis
that it had no direct and substantial interest in the matter, neither did it have a
legal interest. It conceded that it indeed approached farmers in Nyanga, but said
its role was strictly limited to offering assistance with technical support and
identification of formal market linkages for their produce. This was in line with its
organisational mandate.

HELD: the right of a defendant to demand the joinder of another party and the
duty of the court to order such joinder or ensure that there is a waiver of the right
to be joined, are limited to cases of joint owners, joint contractors and partners
and where the other party has a direct and substantial interest in the issues
involved, and the order which the court may make. Such an interest is one in the
right which is the subject matter of the litigation and not merely a financial
interest which is only an indirect interest in such litigation. NGOs and charitable
trusts such as the first respondent have come to play various types of
developmental roles in their work with rural communities. The facts alleged by
applicant could be said to exemplify difficulties that arise when such
developmental initiatives and projects are seen by the recipient communities as
being initiated, influenced and driven by outsiders, albeit with them as
beneficiaries. There appeared to have been some misunderstanding, at least on the
part of the applicant and possibly the rest of the other farmers, regarding the

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transactional and negotiating roles and ultimate responsibility for risks. Although
the first respondent conceded that it played a facilitative role, as communicator
and facilitator, it shouldered some responsibility for poor communication flows
regarding the implications of its initiative. However, the facilitative role of the
first respondent could not be said to amount to a legal interest in the matter, nor to
having a direct and substantial interest in the contract that was subsequently
entered into by the farmers with the second and third respondents in a manner that
would require its joinder. There is a need to distinguish between the type of legal
interest that is required under the law to justify joinder and the type of mutual
interest on the part of the applicant, the rest of the farmers, and the first
respondent that stems from each of their activities. The kind of interest involved
here is symbiotic in nature, as opposed to being one stemming from a contractual
relationship, joint ownership or legal partnership of those involved. The joinder
sought by the applicant was premised on a contractual agreement to which the
first respondent was not an actual party. The effect of joinder would be to bind the
first respondent to the outcome of the litigation. Any pronouncement by the court
in the main matter would have no bearing in the first respondent, as the first
respondent was not party to the contract.

62. CITATION OF PARTIES

It is essential that parties be properly cited. This is to be able to properly

identify the parties to who will be affected by the legal effects flowing
from the civil case.
 Natural persons are to be cited in accordance to their full names as they
appear on the national identity document or birth certificate

 Companies to be cited in accordance with the name that appears on the

incorporation certificate
 Partnership – by the name of the parties
 Cooperatives by the name as it appears in the constitution
 Judges are to be cited in their official capacity
 The president in his official capacity

Unification Church of Zimbabwe v Kundiona & Ors HCH 94/93

The applicant was seeking to bring certain companies under

judicial management pending the removal of the respondent as
directors of the companies. The respondents raised a point in
limine (in limine – point raised at beginning of proceedings) that
the applicant had no locus standi. The applicant had been
registered in 1977 as a welfare organization under the Welfare
Organization Act. The Constitution of the applicant gave him

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among other powers to purchase and acquire property both

movable and immovable and to carry on business with a view to
increasing the revenue of the association and also to institute and
defend legal proceedings.

Held: The court found that although conformed to the requirement

of common law universitas, the application should be dismissed
because the applicant had not used the name to its constitution
described as the Unified Family. The second reason was that the
deponent of the founding affidavit did not have authority to depose
to the affidavit as required by the Constitution.

Moloi v St John Apostolic Faith Mission 1954 (3) SA 940

PARTNERSHIPS

 Generally they do not have locus standi as well as other voluntary associations
which do not meet the requirements of common law universitas. However
Order 2A of HC Rules gives some partnerships and associations locus standi.

63. PARTIES IN APPLICATION PROCEDURE.

The parties in application procedure are identified as the applicant and the
respondent. The applicant is the party that institutes application procedure
whereas the respondent is the party that responds to the applicant’s claim as set
out in the affidavit.

64. PARTIES IN ACTION PROCEDURE.

The parties in an action procedure are referred to as the plaintiff and defendant.
The plaintiff is the party who institutes and drives the case in the courts whilst the
defendant is the party that responds or denies liability as set out in the summons
instituting the claim.

10. ACTION PROCEDURE IN THE HIGH COURT

The High Court of Zimbabwe has original jurisdiction. This means that the court is court
of first instance.

10.1 COMMENCEMENT OF PROCEEDINGS

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KEAVNEY AND ANOR V MSABUKA BUS SERVICES (PVT) LTD

The purpose of pleadings is to define issues and to enable the other party to
know what case he has to meet. It is improper conduct for a legal practitioner
to advance a defense different from that pleaded. The legal practitioner had
advanced a defense of confession and avoidance, whereas he had pleaded the
defense of denial. The failure to plead the defense suggests one of three
possible explanations
a) Sheer idleness and incompetence of the pleader.
b) A deliberate and unconscionable attempt to avoiding attracting onus of
adducing evidence
c) The defense was an afterthought.

DD Transport Transport Pvt Ltd v Abbort 1998 (2) ZLR 92

The general rule is that every allegation of fact not specifically

dealt with by the defendant in his plea is taken to have been
admitted together with the implied allegation of fact which arise
from that allegation.

a. Demand

Demand

There are two instances where a demand is exercised

(i) where you want to safeguard the costs of summons. If the
plaintiff does not make a demand serve summons. Upon receipt of
the summons the debtor pays and the plaintiff will not be entitled
to the costs of the summons. The only exception is where the date
of performance of obligation is fixed in terms of the agreement.

(ii) Where a demand is required to complete the cause of action.

Examples are by statute i.e the State Liabilities Act – 60 days
notice is required when suing the state (b) by agreement between
the parties (c) where a demand is required to place the debtor in
mora.

In the case of Asharia v Patel & others 1991 (2) ZLR 276 (SC)
Gubbay CJ as he then was said

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“The general applicable rule is that where time for

performance has not been agreed upon by the parties,
performance is due immediately on conclusion of their
contract or as soon thereafter as is reasonably possible in
the circumstances. But the debtor does not fall into mora
ipso facto if he fails to perform forthwith or within a
reasonable time. He must know that he has to perform. This
form of mora, known as mora ex persona, only arises if,
after a demand has been made calling upon the debtor to
perform by a specified date, he is still in default. The
demand, or interpellatio, may be made either judicially by
means of a summons or extra-judicially by means of a letter
of demand or even orally; and to be valid it must allow the
debtor a reasonable opportunity to perform by stipulating a
period for performance which is not unreasonable. If
unreasonable, the demand is ineffective.”

Pleading of a Demand

 It is necessary if demand is needed to complete the cause of action.

The form and content f the demand.

(i) it should need not be in writing unless stipulated by statute or by

agreement between the parties.

(ii) It can be by the creditor himself or by someone representing the

creditor i.e Legal Practitioner.

(iii) The demand must give sufficient detail to enable the debtor to
know the basis upon which the creditor is making his or her claim.

(iv) The demand must give reasonable time for the debtor to comply.
Reasonable time depends on the circumstances. Usually 7 days is
given to pay.

(v) It is not necessary to threaten legal action.

b. Summons:

Summons O3 R9-12, 14-16, 19 of HC Rules

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What is a claim for a debt or liquidated demand?

 This is a claim for either a specific amount of money or one that is

capable of speedy and prompt assessment, claim of a specific thing.

Case: Fred & Anor v Keelan 1951 SR 7

A claim for an order declaring property specially hyphothecated in

a mortgage bond to be executable (sold in execution). The claim
was held to be a claim for a liquidated demand.

Mohr v Krier 1953 (3) SA 600

The plaintiff was claiming several things:

(i) the sum of 1300 pounds being the balance of amount due in
terms of a deed of dissolution of partnership entered into
between the plaintiff and the defendant

(ii) an order compelling the defendant to complete and deliver

to the
plaintiff a promissory note in the plaintiff’s favour for
the sum of 1000 pounds in terms of deed of dissolution
of the partnerships.

(iii) an order compelling the defendant to complete and deliver

to the plaintiff a stop order addressed to Tobacco Auctions
Ltd authorising the plaintiff to claim 1000 pounds from the
proceeds of the sale of the tobacco for the 1952-53 season.

The issue was whether these claims were a debt or liquidated

demand.

Held: on the first claim it was held to be a claim of a debt or

liquidated demand because it was a fixed amount of money,
certain.

Held: On 2nd and 3rd claims it was said although claims for debt or
liquidated demand they were also claims for specific performance
and failure to comply with these claims will be punishable by
contempt of court as no official could be substituted for the

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defendant. For that reason the claim should not have been made
on the endorsed summons.

SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2)
SA 131.

The plaintiff applied for default judgement on an endorsed

summons in which he claimed
(i) a statement of account duly supported by vouchers of all
premiums received by the defendant

(ii) the rebate of such account (an assessment of item so as to

come to a determination of an amount owing).

(iii) payment of money owing to the account.

(iv) order directing defendant to disclose all forms of policies in

his
possession issued by the plaintiff and delivered to the
defendant.

Held: All of them were claims for a debt or liquidated demand

except a claim of whatever was found owing under the account
because it was not fixed.

Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498.

A claim for money stolen by the defendant from plaintiff was held
to be a claim for debt or liquidated demand but the claim for the
value of goods stolen by the defendant was held to be unliquidated.

See International Hardwork Cooperation 1971 (1) SA 404

Reached the same decision that claim for stolen money is a
liquidated demand and a debt.

Standwin Investment Pvt (Ltd) v Helfer 1961 (4) SA 470.

A claim for the value of goods as an alternative to the return of the

goods was held to be a claim for a debt or liquidated demand. The
case involved a claim for the return of a truck failing of which
payment of 500 pounds which was the value of the truck.

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An opposite conclusion was reached in Hugo Franco (Pvt) v

Gordon 1956 RN 148.

Fartis Engineering Co. Ltd v Vendick Spares Ltd 1962 SA (2) 736
TPD. A claim for work done and material supplied was held to be
a claim for a debt or liquidated demand. The same conclusion was
reached in International Harvestor v Ferreira 1975 (3) SA 831
CPD.

Belingwe Stores (Pvt) Ltd v Minyembe 1972 (4) SA 463.

A claim for the value of shortfall of stock as per a written
undertaking by the defendant was held to be a claim for a debt or
liquidated demand. The defendant was storekeeper for the plaintiff
and signed an undertaking to pay if there is a shortfall.

Brooks & Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA.
A claim for confirmation of cancellation of an agreement of sale of
certain immovable property and ejectment of defendant from
property was held to be a debt or liquidated demand.

Atlas Assurance Co. Ltd v Goodman 1955 SR 328.

A claim based on a foreign judgement held to be a claim for a debt
or liquidated demand.

Morris v Stern, 1969 RLR 427.

A claim for ejectment was held to be a claim for a debt or
liquidated demand.

Dube v Sengwayo HHC 110/91.

A claim for holding over damages in respect of ejectment
proceedings was held to be a claim for a debt or liquidated demand
because the damages were easily ascertainable, simply look at
rental value of the property and also the period of which the lessee
is an unlawful occupation.

Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 11.92.

A claim for the refund of $14 700 due to the defendant’s failure to
supply 60 000 bricks. This claim was held not be for damages
readily ascertainable and therefore liquidated.

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Midsec (Pvt) Ltd vs Ors v Standage HB 64/94.

The claim was for $100 000 payment based on a

document which had been signed by the defendant in which
she had admitted that she had been fiddling the books and
stated as follows on the amount owed “I would not know
the exact amount that I would have taken but Mr Rumbold
has said that if it is close on to 100 000 which could be
about right” The claim was held to be unliquidated because
the amount owing was not ascertained but merely
estimated.

10 .3.1 General

 The form to use in the summons is Form No. 2 but there is special
summons used in matrimonial proceedings i.e divorce, separation,
Form 30A.

 R10 – the summons must call upon the dependant to enter appearance
to defend if in he intends to oppose a plaintiff’s claim. The appearance
to defend must be entered at the registry specified in the summons.
For purposes of civil case the HC has two Registry offices in Harare
and Bulawayo. The summons will also require the sheriff or his
deputy to serve a copy of the summons on the defendant and make a
return of service.

The Contents of the Summons

 R11- The summons must state the full name of the defendant, the
residence of the defendant or place of business, if the defendant is
sued in a representative capacity that should be stated and also the
capacity in which he is being sued. If defendant’s full names are
unknown state the initials, full names and address of service of the
plaintiff. State if plaintiff is suing in a representative capacity, date of
issue seen from the date stamp, state concisely the nature, extent and
grounds of the cause of action, the relief sought.

 The summons should give the defendant time upon which to enter
appearance to defendant (dies induciae) and its 10 days in HC Rule 17.
It excludes holidays and weekends O1 R4A .

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 If your claim is for a debt or liquidated demand you can endorse the
particulars of claim on the summons. You don’t have to file a
declaration.

c. Declaration

 It’s a statement of the plaintiff’s claim. It must set out the nature, extent and
grounds of the cause of action, relief claimed. )17 R109, 110.

 Where the relief claimed is founded upon separate grounds the grounds must
be stated separately and distinctly . R111.

 The plaintiff may file R113 the declaration together with the summons or may
choose to do so later (Rule 112) but must do so within 12 days of the date of
appearance to defend by the defendant.

 R114 – if the defendant satisfies the plaintiff’s claim in full within the dice
induciae and the plaintiff will not be allowed to recover the costs of the
declaration. However the court may order otherwise on good cause shown.

 R115 the plaintiff may amend his claim as stated in the summons in his
declaration. However if the defendant shows that he will be prejudiced by
such amendment the court will determine whether the amendment should be
made or not.

d. Service S20 (1) HC Act.

 All summons of the HC has to be served by the sheriff or his property or

assistant deputy.

 S20(2) allows that Sheriff to give special directions for the service of any
particular process by some person other than a duly appointed deputy sheriff
or assistant deputy Sheriff.

 S20(3) provide t hat the return of service of the sheriff or deputy or assistant
deputy sheriff shall be prima facie evidence of the matters stated in it.

 S20(1) Any service in contravention of that provision will be invalid.

Wattle Co. (Pty) Ltd vs Inducon (Pvt) Ltd 1993 (2) ZLR 108 H

On the 8th of April of 1993 on order was granted by the HC compelling the
defendant to file and serve its discovery affidavit within 5 days of the
service of the order. Failing which the plaintiff would be allowed to apply

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to have the defence struck out and default judgment granted. The order
was served on the defendant’ legal practitioner by a Clerk in the employ of
Plaintiff’s Legal Practitioners. He was in default and the plaintiff applied
for default judgment.

Held: The service of the order by the clerk was not due and proper
service because it contravened S20 (1) of the HC Act which provides that
service should be by the Sheriff or his deputy or assistant of the sheriff.

There are special rules of service in process on proceedings against the state. S5
of State Liabilities Act
O5A R43 A – 43D

Mutyambizi v Goncalves & Anor HH-345-13

Dube J

In terms of r 39(1) of the High Court Rules 1971, process in relation to a

claim for an order affecting the liberty of a person must be served by
delivery of a copy thereof to that person personally. An application to
commit the respondent to prison for contempt of court would be an
instance of such an application. Imprisonment is a harsh form of
punishment and deprives a person of his liberty and is therefore a grave
consequence the respondent may have to endure. It is imperative, in
contempt of court applications where the remedy sought is likely to result
in imprisonment, that process is served personally. The fact that there is a
proviso in the order sought that enables the court to suspend the
imposition of a custodial sentence does not take away the requirement for
personal service. Service on .the respondent’s legal practitioner is not
sufficient.

Cleminson v Sher & Another HC 1762/14

In case number HC 1508/14 the respondents issued summons against the

applicant on 2 July, 2014 claiming arrear rentals and eviction as a result of
breach of a lease agreement entered into by the parties. The summons was
served at the applicant’s domicilium citandi et executandi number 5 Luton
Street, Belmont, Bulawayo on 4 July 2014 by affixing it thereat on the
door after unsuccessful diligent search. The dies induciae expired on 18
July, 2014. On 17 July, 2014 the respondents’ legal practitioners, out of
courtesy, e-mailed the summons to applicant and also alerted applicant

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that they had served the summons at his domicilium citandi on 4 July,
2014. The applicant did not enter appearance to defend. On 31 July, 2014
the applicant filed a chamber application for the upliftment of the
automatic bar. The respondents opposed that application.

HELD: It is trite that the purpose of choosing a domicilium address for the
giving of a notice or service of process is to relieve the party giving the
notice or serving the process, of the burden of proving actual receipt of the
notice or process. The manner of service of the summons in casu of
affixing it on the outer or principal door at applicant’s domicilium citandi
constitutes good and valid service permissible in terms of Rule 40 (b) of
the High Court

African Export-Import Bank v RioZim Ltd HH-464-13

Chigumba J

The defendant averred further that the domicilium citandi et executandi

specified in the note made it clear that summons ought to have been
served in England, and consequently, service of the summons in
Zimbabwe was improper and invalid at law
HELD: With regard to the service of process in Zimbabwe, there was
nothing which supported the contention that any and all legal process in
regards to the promissory note ought to be served in England at the agent’s
address. In any event, the defendant accepted service of the letter at its
Harare address addressed to it by the plaintiff, in which the plaintiff
advised that the promissory note had been dishonoured by non-payment.
No effort was made to disabuse the plaintiff of the notion that it had
effectively placed defendant in mora by delivery of the letter to that
address. The defendant ought to have advised the plaintiff to deliver the
letter to its domicilium citandi et executandi.

65. Substituted SERVICE

Substituted service: were service cannot be effected in any ways stipulated by the
rules you can apply for substituted service to a judge of the HC. It should state
the facts on which the cause of action is based, reason why service cant be
effected in any of the ways provided by the rules; sufficient relevant facts
indicating manner in which service will be effected.

Becker McComick (Pvt) Ltd v Gvt of Kenya 1983 (2) ZLR 72

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The City of Hre v Mudzingwa & Ors HH 200/91

City of Harare sought an eviction order for 194 squatters from its land. It
applied for substituted service in the form of an order to allow sufficient
copies to be served on one of the squatters as representative of the others.
Only 24 copies of the process were served on the representative squatter.

Held: since the identities of 193 other squatters were known to the
applicant 24 copies were inadequate and did not represent a proper
compliance with the order. Equity demanded that each squatter should
have been furnished with his own copy of the documents.

PROCEDURE

Monarch steel (1991) (Pvt) Ltd v Four Way Haulage (P

ty) ltd

The plaintiff company claimed damages for breach of contract. The

defendant company did not have property within the court’s jurisdiction
capable of attachment. The defendant company was registered in South
Africa. The plaintiff made a chamber application for the leave to effect
service of summons and declaration outside the jurisdiction of the court in
Boksburg South Africa. Leave was granted, although the plaintiff did not
submit a statement setting out the grounds on which it alleged that the
court had jurisdiction to entertain the matter. The defendant entered an
appearance to defend but filed a special plea which it averred that the
court had no jurisdiction. The plaintiff averred that the court had
jurisdiction by virtue of issue of process.

Held upholding the special plea that the application which the plaintiff had
made for an order for substituted service was made without regard to
provisions of section 15 of the high court act [chapter 7;06]. For the
issuance of summons and declaration in this case to have effect of
confirming or founding the court’s jurisdiction over the defendant, the
plaintiff should have made a court, not a chamber application and should
have made a statement to the effect that the defendant was present in the
country or had property capable of attachment. The purpose of section 15
was to give the court the discretion to confirm jurisdiction by issue of
process rather than by arrest or attachment but it did not relieve the

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plaintiff for the ‘burden’ of having to show that the peregrinus was within
the country or had property capable of attachment.

Croco Properties (Pvt) Ltd v Swift Debt Collectors (Pvt) Ltd HH-220-13

Mathonsi J

In an application for rescission of a default judgment, the applicant

averred that it was not in wilful default because it had not been served
with the summons initiating the action and so had no knowledge of the
claim. According to the deputy sheriff’s return of service, the summons
was served on a named receptionist who accepted service on behalf of the
applicant at the latter’s place of business. Apart from the affidavit of a
director of the applicant that the company had no employee by the name
mentioned in the return, an affidavit from the company’s receptionist was
submitted. She stated that she was at the reception desk on the date of
alleged service but was never served with the summons or any court
process. In answer, an affidavit from the assistant deputy sheriff repeated,
almost word for word, the impugned return of service.

HELD: While in terms of s 20(3) of the High Court of Zimbabwe Act

[Chapter 7:06], the deputy sheriff’s return of service is prima facie
evidence of the matters stated therein, once the return has been challenged,
the deputy sheriff must do more than just refer to the return. He must
assist the court to determine the truthfulness of the return of service. His
explanation was unhelpful as it merely repeated what was in the return of
service. After the return of service was impugned, the erstwhile assistant
needed to do more than that. For instance, more details of the location of
the applicant’s address, the appearance of the reception where the
summons was served and a description of the recipient would have
enhanced his credibility. Rescission would therefore be granted.

Service outside jurisdiction

Service outside jurisdiction: There are two rules – R45 deals with
service in SA, Namibia, Lesotho, Swaziland or Botswana – serviced by
sheriff or deputy sheriff of the country or province in which the defendant

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is residing. If the person serving is a deputy or under sheriff there should

be a certificate from the sheriff that the person was indeed appointed.

In other cases follow R44 that is seeking leave of the court or

judge seeking permission to serve outside the country. The court
would order the manner of service. In an application make the
following information:

Jotham Chirongoma versus TDG Logistics

“There is no way a summons can be lawfully sued out against a peregrine

defendant without the leave of the court. Where such summons is issued,
it is clearly invalid and of no legal effect.”

i. facts in which cause of action is based

ii. grounds which the court has jurisdiction in entertaining the claim

iii. proposed manner of service

iv. last known whereabouts of the person to be served. Give details

on what enquiries you have made to ascertain the whereabouts i.e
gazetting.

Stanmarker Mining (Pvt) Ltd Versus Metallon Corp Ltd & Others 2003
(1) ZLR 389 at 393
Chinengo J stated:

‘’It must be clear from the above remarks that S15 of the High Court Act
does not dispense with the need to show that the court has jurisdiction
which may be founded or confirmed by the attachment of property or the
arrest of the defendant. That is the single issue which the applicant had to
deal with before he could obtain other associated relief.’’

a. Further procedure when action uncontested

Judgment by consent

 R53 the Defendant can consent to judgment at any time after service of
summons except in

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(a) in matters affecting status e.g matrimonial matters

 The consent to judgment has to be in writing and signed by the defendant

personally or by his/her legal practitioner.

 If the consent is signed by the defendant him/herself then the defendant’s

signature must be verified by affidavit and the affidavit is to be by the
person other than the defendant himself.

It can be verified that the signature of the Legal Practitioner acting for the
defendant.

 The requirements of R54 are compulsory. If not followed the consent is

invalid.

Washaya v Washaya 1989 (2) ZLR 195.

The terms of an apparent settlement were dictated in open court by the

council for the applicant with the agreement of the respondent’s
counsel. Judgement by consent was entered in terms of apparent
settlement. It later turned out that the counsel for the respondent had
no authority to settle the matter. He had simply presumed that his
client would ratify his action.

HELD: When the client applied for rescission of the judgement the
court held that the consent was not binding on the client because the
provisions of R54 were not followed. The judgement was rescinded
and the costs de bonis propis were awarded to Legal Practitioner who
had consented to judgement without the client’s authority.

If the consent is filed in a proper form, then judgement by consent will be

met through the chamber application R55. R56 gives the court authority
to set aside a judgment given by consent and its own good and cause
shown.

Georgias & Another v Standard Chartered Finance Zimbabwe Limited

1998 (2) ZLR 488 (S)

When considering an application for rescission of a judgment entered

by consent, the court should have regard to:

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(1) the reasonableness of the explanation proffered by the applicant of

the circumstances in which the consent judgement was entered;
(2) the bona fides of the application;
(3) the bona fides of the defense on the merits of the case which prima
facie carries some prospect of success. A balance of probability need
not be established.

Godza v Sibanda & Anor HH-254-13 (Uchena J)

Novation is an agreement between a creditor and a debtor in relation to

an existing obligation, whereby the old debt between them is
extinguished and a new obligation is created in the place of the old
one. The parties in such an agreement are the creditor and the debtor.
However, where the old agreement has been incorporated into a court
order the parties cannot novate it. A court order has the same effect as
a court’s judgment even if it was granted by consent. The parties must
apply for an amendment to or variation of the court order if they want
to depart from its terms.

Judgment in default and Application for Rescission of Judgment

Default Judgment

If the claim is a debt or liquidated demand and there is no appearance to defend

has been entered the plaintiff can make a chamber application for the judgement
R.57.

If the claim is not for a debt or liquidated demand then the procedure if there is
default to appearance, the procedure is set out in R58. The plaintiff must file and
serve her declaration that has not yet been done. If the defendant remains in
default after service of the declaration then the plaintiff may proceed to make a
court application for default judgment by setting the matter down for hearing in
terms of R223(1). The court will then consider the matter except that where it’s a
claim for damages the court will require evidence as to the quantum of damages.
R60. The evidence to be quantumed can be by way of an affidavit and not oral
evidence. The affidavit should be filed within a specified time limit as follows:-

(i) if the matter is set down for hearing in Harare then the affidavit must be filed
by 10.00 am on the Friday immediately preceding the Wednesday on which
the case is set down for hearing. Unopposed applications are heard on
Wednesday in Harare.

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(iii) if in Byo then the affidavit must be filed by 10.00 am on Wednesday

immediately preceding the Friday on which the case is set down for hearing.

See Knight NO v Harris (1962 (2) SA 317 (SR).

The plaintiff issued summons against the defendant claiming 6000 pounds for
damages suffered as a result of the negligence of the defendant. The damages
arose from the damage to the plaintiff’s car as a result of a collision of the
defendant’s car. The summons and declaration were served by affixing copies
to the principal door of the defendant’s residence. There was no appearance
to defend by the defendant so the plaintiff set the matter down for judgement.
The plaintiff made evidence regarding the quantum of damages but gave no
evidence in relation to the issue of liability (cause of action). The question
raised was whether it was proper for the court to grant judgement without
hearing any evidence substantiating the cause of action.
Held: The predecessor to current R60 does not suggest that the court should
dispense with the hearing of evidence on the cause of action. It would
ordinarily be unwise for a court to do so where the action is for damages
arising out of a motor accident because of the possible existence of complex
issues of whether or not there was contributory negligence.

N.B. The predecessor of R60 stated that the court may dispense with evidence
without specifying what evidence may be dispensed with. The current R60
states that the court may grant judgment or make an order without hearing
evidence except in cases for damages in which case only evidence is to
quantum of damages (-issues of liability not provided).

Dunlop v West 1974 (2) SA 642

The plaintiff a minor sued assisted by father. Plaintiff was suing a defendant
minor assisted by father for damages of $60 000. The claim arose from
injuries sustained in a car accident. The plaintiff was a passenger in a car
driven by the defendant. The car veered off the road and collided with two
trees. The plaintiff was reduced to a ‘human cabbage’ seriously injured. The
defendant entered appearance to defend and defaulted at trial. The issue was
that the plaintiff led evidence on quantum and sought judgment without
addressing issues of liability.

Held: Under the rules as they were at that time the court had no discretion to
dispense with evidence as to liability (res ipsa loquitor – was it as a result of

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negligence). It was held it was not because there was other evidence on what
actually happened. There was a young girl a passenger in the court who had
not been called. It was held that the court must hear evidence as to liability
and the case was postponed to give required evidence.

In situations where there is default of plea the plaintiff must first of all bar the
defendant due to a procedure called “barring” after giving notice of intention
to bar. Once the defendant has been barred then the procedure is the same as
for R59 – set down.

If the defendant is in default at trial in terms of R59A the court may proceed to
grant default judgment without hearing any evidence at all if it’s a claim not
for damages if its for damages it will hear evidence on issue of quantum R60.
If the plaintiff is in default, the plaintiff’s claim will be dismissed in terms of
R61. In terms of R62 the court may actually absolve the defendant.

ZEDTC v Ruvinga (1) HH-307-12

(Bere J)

The applicant had been sued by the respondent for losses arising out of erratic
power supplies. The matter was in due course set down for a pre-trial
conference. Before the conference, however, the judge gave a directive
that the parties convene on their own for a round table discussion, and,
with the concurrence of the two legal practitioners, had the matter
postponed for a second pre-trial hearing a few days after that. Not only
was the applicant not represented at the round table discussion, it was not
represented at the postponed pre-trial conference, nor had it sought a
further postponement. The given reason, which was not made entirely
clear in the affidavit deposed to by the applicant’s legal practitioner, was
that the applicant needed the services of an expert witness who was
apparently unavailable. At the pre-trial conference, the judge struck out
the applicant’s defence and plea and referred the matter to the unopposed
roll for proof of damages by the respondent. The applicant sought
rescission of judgment in order to pave way for the reinstatement of its
plea. The respondent raised, in limine, the issue of whether the applicant’s
legal practitioner was competent to depose to the founding affidavit in the
application. It also raised the issue of whether the applicant was in wilful
default.

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HELD: In order to succeed in having an order made in default of appearance

set aside the applicant must show good and sufficient cause. The
explanation tendered by the applicant must negative any wilful default on
the part of the applicant. In the context of default judgment, “wilful”
connotes deliberateness, in the sense that the applicant must have had full
knowledge of the set down date and of the risks attendant upon default,
and freely took the decision to refrain from appearing, whatever the
motivation of that decision may have been. There is nothing like an
automatic postponement when a matter is set down before a judge. A party
desiring a postponement must advance cogent reasons for a postponement
and seek the court’s indulgence in that regard. Only when the court agrees
with the submissions of a party seeking postponement would the court
accede to such an application. It was certainly not enough for the
applicant’s legal practitioner to decide not to attend court on a date that he
had agreed to and to delegate his junior to handle the desired
postponement.

66. RESCISSION FOR DEFAULT JUDGMENT

A party against whom a default judgment has been granted has the right to
leave to apply for the setting aside of such judgment. The procedure for
doing so is set out in the following cases;

In the case of Mushoto v Mudimu & Anor HH-443-13 (Chigumba J)

said that;
There are three separate ways in which a judgment in default of one party
may be set aside. This can be done in terms of r 63 of the High Court
Rules, or r 449(1)(a), or in terms of the common law. An applicant is
at liberty to elect to use whichever one of those three vehicles best
suits the circumstances of the case. Whichever one he chooses, the
court will have to consider the question of length of time that will have
elapsed since the judgment sought to be rescinded was granted. To
qualify for relief under r 63, a litigant must show that:
• Judgment was given in the absence of the applicant under these rules or
any other law;
• The application for rescission was filed and set down for hearing within
one calendar month of the date when the applicant acquired knowledge
of the judgment;
• Condonation of late filing has been sought and obtained where applicant
fails to apply for rescission within one month of the date of knowledge
of the judgment.

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• There is “good and sufficient cause” for the granting of the order. “Good
and sufficient cause” has been construed to mean that the applicant
must (a) give a reasonable and acceptable explanation for his default;
(b) prove that the application for rescission is bona fide and not made
with the intention of merely delaying plaintiff's claim; and (c) show
that he has a bona fide defence to the plaintiff's claim.
To qualify for relief under r 449(1) (a) a litigant must show that:
• the judgment was erroneously sought or erroneously granted;
• the judgment was granted in the absence of the applicant or one of the
parties; and
• the applicant's rights or interests were affected by the judgment. In
order to qualify for relief in terms of the High Court’s common law
power to rescind its own judgments a litigant must show that:
• the court’ discretion that it is being asked to exercise is broader than the
requirements of both rules 449 and 63; and
• whether, having regard to all the circumstances of the case, including the
applicant’s explanation for the default, it is a proper case for the grant
of the indulgence.
The question is, what sort of error will suffice to bring an applicant
squarely within the ambit of r 449(1)(a)? Is it an error of fact, an error
of law, or both? An “error” in common and ordinary parlance, is
defined as a mistake, fault, blunder, slip, slip-up, inaccuracy or
miscalculation. The law is settled on the issue of if or when and
whether the court ought to grant rescission of its own judgments in
terms of rule 449. A party against whom default judgment had been
granted is entitled to place before the correcting, varying or rescinding
court facts which had not been before the court granting the default
judgment. It is not necessary for a party seeking relief under r 449 to
show "good cause". If a court holds that the default judgment was
erroneously granted, it may be corrected, rescinded or varied without
further enquiry. Rule 449 is one of the exceptions to the general
principle that once a court has pronounced a final judgment or order it
is functus officio and has itself no authority to correct, alter or
supplement it. Mistakes of fact are not precluded, although the
mistakes must not be trivial or petty clerical ones. The mistake must
have been made on the part of the party seeking the judgment in
default, or of the judge who grants it, and the applicant ought to show
that he was prejudiced as a result, or that there was a miscarriage of
justice. In other words, despite having a good defence on the merits,
judgment was given against him in error, as a result of such mistake.
Any fact which was not brought to the attention of the court at the time

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judgment in default was given may be placed before the court dealing
with an application to rescind judgment in terms of r 449. It would be
a proper exercise of the court's discretion to rule that, even if the
applicant proved that the rule applied, the application could not be
heard after the lapse of a reasonable time. Rule 63 has strict time limits
which must be adhered to and a litigant who falls foul of the time
limits will not be heard unless condonation is first sought and
obtained. The phrase “good and sufficient cause” is seemingly wide
ranging and all encompassing. The explanation for the default must be
reasonable and/or acceptable. The applicant must show that he has a
bona fide defence to the claim. On the other hand, the court’s common
law discretion to rescind its own judgments is wide and requires that
regard be had to all the circumstances of the case, including the
explanation for, and the length of the delay in bringing the application,
and the prospects of success of the applicant in the main matter. Rule
63 is more in tandem with the court’s common law discretion to
rescind its own judgments. This is because, when regard is had to the
wording of r 63, that “A party against whom judgment has been given
in default, whether under these rules or under any other law”, it
becomes clear that r 63 recognizes the possibility that judgments may
be rescinded under other laws which may not necessarily fall under the
rules, such as the common law discretion that the court has to rescind
its own judgments.

Banda v Pitnuk HH 164/93, 1993 (2) ZLR 66

Applicant sought rescission of a default judgment which was opposed

by the respondent. The applicant filed an answering affidavit to the
respondent opposing affidavit on the afternoon preceding the date
which the matter was to be hear. The respondent’s Legal Practitioner
objected to the late filing of the affidavit. The respondent
subsequently withdrew the opposition for the late submission to the
late filing and the explanation for the delay was that the applicant’s
Legal Practitioner had renounced agency on the 7th of July 1993 when
the matter was to be heard on 14th July 1993 thus giving him
sufficient time to prepare himself to conduct the case on his own. The
court strongly censored the conduct of the LP and the mater resume
the former LP came back. On the resumed hearing mero motu (own
initiative) raised an issue on whether the application should have been
made under R449(1) instead of R63 which is the rule on rescission of
default judgment. The reason for the subjection is that there was an

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appearance to defend by the applicant which had been duly signed by

the registrar but had not been duly served by the plaintiff.

Mubvimbi v Maringa and anor 1993 (2) ZLR 24

The practice of having summons of notice of intention to bar certified

by a person other than a legal practitioner is not compliance with the
provisions of rule 41 of the rules of the high court. An application for
rescission of default judgment must be made no later than a month
after the affected person became aware of the judgment. If there is a
delay beyond that time, an application for condonation must be made
and an explanation for the delay must be given. An application which
attributes blame for the delay to the party’s legal practitioner will
usually be unveiling; non-compliance in such circumstances is willful.

V Daya & Co (Pvt) Ltd & Anor v Savanna Tobacco(Pvt) Ltd

(Mathonsi J)

The applicants sought rescission of a default judgment obtained against

them. After issue of the summons, they had signed an
acknowledgment of debt in respect of the full amount claimed by the
respondent and undertook to pay the debt at an agreed rate per month.
In spite of this undertaking they did not pay the monthly sums agreed;
they paid only one amount, which was considerably less than the
agreed monthly rate. The grounds for rescission were that they were
not in wilful default and had a defence to the claim. Held: Nowhere in
the world can it be a defence to say that a debtor should be allowed to
pay in instalments. To say that the applicants negotiated a settlement
after receipt of the summons did not even begin to explain the default.
It was as unreasonable an explanation as it was dishonest. To say that
the applicants should be allowed to pay the debt they acknowledged as
owing in monthly instalments did not come anywhere near presenting
a bona fide defence. It put to question the bona fides of the entire
application for rescission of judgment. This kind of litigation must be
discouraged at all costs and legal practitioners who indulge in such
egregious departure from acceptable behaviour risk the sanction of
costs de bonis propriis being visited upon them.

Kaiser Eng (Pvt) Ltd v Makeh Entprs (Pvt) Ltd HB-6-12

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(Ndou J)

The court has both a statutory and a common law power to reverse a
default judgment that has been granted in error or under circumstances
that indicate some irregularity. An error on the part of the court, where
the judgment would not have granted had the court been fully of
certain facts, would be grounds for rescission. Where a default
judgment was induced by certain non-disclosures and
misrepresentations made by the respondent in its papers, the judgment
was granted in error and should be rescinded.

DEFENDANT DEFAULT AT TRIAL.

Mpehlani v Expert Panel Beaters & Spray Painters (Pvt) Ltd 1993
(2) ZLR 212 (SC)

The plaintiff claimed damages from the defendant for negligent

repairs to the car. The defendant entered appearance to defend
and filed a plea in which he denied negligence and defaulted at
trial. Counsel for the plaintiff led evidence on quantum of
damages and not on liability despite the trial judge’s indication
that this is necessary as per the case of Dunlop v West supra).
The trial court dismissed the claim and the plaintiff appealed to
the SC. The SC held that negligence was put in issue by the
defendant’s plea and therefore had to be proved. The appeal
was dismissed.

Rescission of default judgement-trial

Uzande v Katsande 1988 (2) ZLR 47 (HC)

Default judgment had been entered against the

applicant in favour of the respondent because of the
former’s non-appearance at the court on the date set
down for trial. He sought rescission of judgment
alleging that his legal practitioner, who had, before the
trial date renounced agency, had mis-informed him of
the trial date. It was common cause that the application
that the matter fell to be determined under the common
law governing restitution in integrum.

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Held: that an allegation by a litigant that he was

unaware of a pending trial would justify restitution only
if he could establish “a supremely just cause of
ignorance free of all blame whatsoever” (voet 2.4.14)
the first hurdle is to show that prima facie he was
blameless. In the present case, his allegations, if true
would establish a “supremely just cause for his
ignorance”. The second hurdle is to establish on
balance of probabilities the truth of the allegations

10.4.5 Uncontested divorce order

Everything said on default judgment does not apply to divorce, judicial separation, and
nullity of marriage and restoration of conjugal rights. If you have matrimonial claim and
there is no appearance to defend – what one does depends on the type of summons used –
either ordinary or special summons.

Where special summons Form 30A are used you simply set the matter and the matter is to
be heard on the date specified in the summons without any reference to the defendant.

If you use ordinary summons one is required to take the following steps:-
(i) file and serve your declaration if you have not already done so.
(ii) if there is still no response do a notice to plead in terms of R27 2(1)(a).
(iv) The notice of trial if there is no response to notice to plead. This is the notice that
you are setting the matter down for hearing. The notice will contain the actual
date which the matter is to be heard. The notice must be served personally on the
defendant. Apply for substituted service if you can’t do so.

See Le Roux v Le Roux 1957 R& N 831 SR

The plaintiff sued the defendant for a final order of divorce. The defendant was in
default. The plaintiff was unable to effect personal service of the notice of trial because
the defendant moved from place to place. The plaintiff sought to testify that she had seen
the defendant and informed him of the date of set down.

Held: The plaintiff’s evidence could not substitute proper service of the notice of set
down because she was an interested party and she had been informed in a casual manner.
The matter was postponed indefinitely sine die to allow proper service.

The notice of plead and of trial can be served together in a combined document called
notice to plead or trial.

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If you want for proceedings to be quicker the defendant can waive the time limit required
for filing the documents.

Issues relevant either using general and special summons.

(a) Consent Paper – parties should agree on the ancilliary issues i.e maintenance,
property sharing. The consent paper must be filed together with the papers for the
hearing of the divorce and it will be incorporated into the court order.
N.B One can’t consent to divorce.

(b) Service of papers on a person named to have committed adultery. O35 R273 (1),
(2)
See Cloete v Cloete 1951 SR 121
The plaintiff sought divorce against the defendant on the grounds of adultery.
The person in whom the defendant was not cited as co-defendant but mentioned
by name in the declaration.
Held: The declaration and summons should have been served on the named
person to give him an opportunity of appearing for the court and clearing his
name.

See: De Salis v De Salis 1957 R & N 663

The plaintiff sued the defendant for divorce on the grounds of adultery and
cruelty. The defendant entered appearance to defend and counter claimed for
divorce on the grounds of cruelty. The defendant subsequently withdrew the
defence and counter-claimed. The plaintiff declaration alleged that the defendant
had committed adultery with one H.

Held: The declaration was not served on H therefore plaintiff would not proceed
to have the matter heard. However evidence given of improper association of
plaintiff with 3 men was held to constitute cruelty. Divorce was therefore granted
on the grounds of cruelty.

The person who is named for adultery can actually waive not have papers served
on her.
See Mayhew v Mayhew (1972) RLR 55.
The plaintiff brought an action for divorce in which he sought condonation of his
own adultery with a named woman. The woman had supplied an affidavit in
which she admitted that she had committed adultery with the plaintiff and stated
that the plaintiff intended to marry her and she waived her rights to service of the
relevant documents. The waiver was accepted.

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See Kettle v Kettle 1972 (2) RLR 130

(c) Uncontested matters

Draft order – type of order you want the court to order. If the court agrees with it,
it grants order in terms of the draft.

(c) Affidavit of Evidence: R277B allows the plaintiff to give their evidence in the
sum of an affidavit. There is a time limit to file affidavit.
(i) if matter set down in Harare file at 10.00 am on a Friday immediately
preceding the Wednesday in which the matter is to be heard.
(ii) Byo file at 10.00 am on Wednesday immediately preceding Friday in
which the matter is to be heard.
- The affidavit must be accompanied by the following documents:

 Marriage certificate
 Consent paper if any.
The court may still insist that he plaintiff give oral evidence and the court may
postpone the matter.

67. Further procedure when action contested

11.1 Appearance To Defend

07 R48-49

The form used is form No. 8

The appearance to defend is entered by the defendant personally or through
his/her legal practitioner. The appearance to defend must contain the title
(heading i.e in HC of Zim), no of action (case no); address for service which
should be within the radius of 5km f the court of registry, postal address of the
defendant, date of entry of appearance to defend (Dated at ….); signed by the
L.P or by the defendant himself.

Once the appearance is taken to the registrar, it must be served to the plaintiff
and according to R49. It must be served within 24 hours of entering of
appearance to defend. Failure to enter appearance in terms of R50 be deemed
to be barred (automatically barred). However the automatic bar does not
apply where there is a defective appearance to defend.

The court decided on the authority of Herbstein & Van Winsen 3rd ed pg
242 and the case cited therein that the irregular appearance to defend did not

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entitle the plaintiff to a default judgment. The proper remedy had been to
postpone the matter inorder to allow the defendant to serve the appearance to
defend to the plaintiff . The plaintiff had to pay for these added costs.

Held failure to enter appearance to defend does not result in automatic

barring if there is defective appearance.

R52 deals with withdrawal of the action by the plaintiff after appearance to
defend. According t R52(1) the defendant shall be entitled to his or her taxed
costs and also the undertaking to pay such costs should be incorporated in the
notice of withdrawal. This sub-rule does not apply if the action is being
withdrawn with the defendant’s written consent. Where there is an
undertaking to pay the taxed costs and they are not paid within 12 days of
demand by the defendant, according to R52(2) the defendant may continue to
make chamber application for judgement for the taxed costs.

Pine Long Investments (Pvt) V Vallance & Anor 2009 (2) ZLR 33 (H)

A notice of intention to defend, consequent upon the service of a

summons will be irregular if the defendant having filed the original
notice with the Registrar fails to serve a copy on the plaintiff or his
legal practitioner. In the event of failure to serve the notice in this
manner, the plaintiff will be entitled to assume that notice of the
intention to defend has not been given. If however, the plaintiff does
so and moves for judgment, the court will not grant judgment, but will
order the defendant to pay the wasted costs occasioned by his
omission. Rule 50 provides the sanction (barring) for failure to serve
the notice in terms of r 49. The irregularity in this case did not warrant
the punishment of having the notice of appearance struck off and that
it be expunged from the record. Such a relief would be too drastic in
the view of the fact that the notice was entered timeously

11.2 Defendant’s plea:

Plea on Merits

68. Ordinary Plea

A plea is a defendant’s answer to the plaintiff’s declaration/particulars of claim.

The plea must set out the defendant’s defense and it must deal with the allegations
of facts made in the declaration or summons. The defendant either admits

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allegations or deny it or confess and avoid. A confession and avoidance is when

the defendant admits admission by alleging further facts which justifies the
admitted facts or makes him not liable. Where there is an admission the
defendant is bound by that and it cannot be withdrawn except with the leave and
permission of the court. If the defendant seeks withdrawal of the admission the
court will require evidence of the circumstances in which it came to be made

Huntly-Silburn v Levien 1937 TPD 199

Exception in this rule is in a damage claim. In a damages claim it is not

necessary to deny the damages claimed or their amount. According to
R117 the damages shall always be an issue unless expressly admitted.

Where a defendant is raising several grounds of defence which are based

on separate facts then each defence must be separately stated R116(2).
The defendant is not allowed to set out inconsistent defences unless they
are in the alternatives. If a denial results in the matter taking longer than
was necessary thus incurring extra-costs and the court is of the view tat the
fact denied should have been admitted then the defendant may have to pay
extra costs R118.

The plea must be filed within ten (10) days of the service of the plaintiff’s
declarations R119 where the plaintiff serve his declaration together with
the summons on the time is 10 days is given to file plea.

69. Special Plea

Special plea is a plea that does not raise a defence on the merits but sets
out some special defence. The purpose of the plea is either to delay the
proceedings or to put an end to the proceedings (quashing).

Difference between special plea and an exception with an exception the

defence raised must appear ex facie the declaration or summons or
pleadings excepted to – you may not introduce any matters outside
declarations or summons. With a special plea the defence raised may be
established by evidence outside the declaration the counter-claim.

Two categories of special plea are:

(a) dilatory – to delay the proceedings until some temporary bar to the
claim has been removed.

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(b) Declinatory – to quash or put an end to the proceedings.

N.B The other name for dilatory plea is plea in abatement.
Declinatory – plea in bar

 Declinatory Plea (in bar)

(a) Plea of res judicata – same matter have been decided in another
court of competent jurisdiction.

Wolfender v Jackson 1985 (2) ZLR 313 (SC)

Appellant’s claim against respondent for maintenance of her child

had been dismissed by a maintenance court on the ground that th
respondent was not the child’s father. Appellant then constituted
proceedings against respondent in magistrate court for damages for
seduction, alleging in her particulars of claim that as a result of the
seduction she had given birth and thereby incurred certain out of
pocket expenses. Respondent’s plea in abatement that the issue of
seduction and birth of child was res judicata between the parties
was upheld and appellant’s claim dismissed. On appeal

Held; requirements for exception in rei judicatae which is form of

estoppel are that the previous proceedings relied must have been
between the same parties and that the same question must arise.
The additional requirement mentioned by Voet that there must be
the same cause of action, means parties are estopped from
disputing any issues necessarily decided by the court in reading its
judgment
in its previous proceedings.

(iii) – the matter is cut of time – claim can no longer be brought

because lapse of time – Prescription Act 8:07

DEFINATION OF “DEBT’ UNDER PRESCRIPTION ACT

Ndlovu V Ndlovu And Anor 2013 (1) Zlr 110

The applicant sought a declaratory order to effect that the

purported sale of his house to the first defendant was unlawful and
void and for an order restoring possession of the house to him. The
application was made well over the years after the first defendant
had taken possession of the house. The only issue was whether the

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claim had prescribed in terms of the Prescription Act [chapter

8:11]

Held that it is only “debt”, as defined in the act, that can prescribe.
A claim arising from a debt must be ‘by reason of obligation” on
the part of the debtor arising from statute, contract, delict or
otherwise. A declaratory order is a remedy to secure the public
interest of certainty or correct legal position. Such remedy can-not
prescribe. The applicant’s claim is based on the alleged nullity of a
sale transaction and did not arise from a “debt” as defined in the
act. Accordingly, prescription did not apply.

In the case of Gumbo v Sunganayi Motorways (Pvt) Ltd 1988(2)

ZLR 83 (HC) it was held that In terms of section 15 (1) of the
prescription act no 31 of 1975, prescription begins to run as soon
as a debt is due. Section 28 of the prescription act (chapter 1)
applies to the calculation of periods of prescription in terms of the
prescription act. Where a debt becomes due on a particular day that
day is excluded from reckoning but the last day of prescription
period is included. Debts often become due at the same time as
they arise, but this is not necessarily so. In the case of a claim for
damages for injuries caused by the defendant’s negligence, the
debt would not become due until it had been quantified and
demand made to defendant.

Pickering V Syfn Holdings Limited 1980 (1) ZLR

The plaintiff was involved in a motor accident on 3 rd April 1977 in

the course of which a passenger was injured. The passenger sued
him for damages and the insurer repudiated liability claiming that
the plaintiff had breached warranties in his proposal form.
Judgment was given against him. The plaintiff sued defendant a
firm of insurance brokers whom he had appointed to obtain his
motor insurance. He claimed that they had failed to obtain from his
medical practitioner the necessary information to complete his
proposal correctly and had in the consequence filled the form on
his behalf incorrectly. As a result he had claimed sufficient
damages arising from the passenger’s successful suit against him.

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Summons in the present case were served on the 9 th of January

1981. The plaintiff’s insurer had repudiated liability on the 8 th of
June 1977 and the passenger had advised the plaintiff of her claim
against him on the 8th of June 1978. The defendant filed a special
plea alleging that the plaintiff’s claim was prescribed as the
defendant’s breach became of mandate of agency had become due
when insurer repudiated liability.

HELD: dismissing the special plea with costs that a debt arises
from a breach of contract can-not become due before loss has been
caused by breach. Although the insurer had in effect told plaintiff
that it would in future reject liability for a claim made against him
there would be loss to the plaintiff only when there was a
disclosure of the plaintiff’s claim for indemnity and this could only
occur when the injured passenger had actually formulated and
made her claim against him. As this was done on the 8 th of June
1978, prescription could not have started to run before that date.

Carinus v Dutoit 1992 (2) ZLR 71

Plaintiff’s action against the defendant had been withdrawn

after summons had been issued because the plaintiff’s
lawyers had a conflict of interests. The plaintiff then took
the case to another firm of lawyers. The original action was
reinstated or resuscitated with the express consent of the
defendant. The consent to the reinstatement signed by the
lawyers of both parties was filed. The defendant pleaded
that the action had prescribed between the withdrawal of
the action and its reinstatement.

The court dismissed this plea. As the original action had

been reinstated, the present action was simply a
continuation of the original action under the process
previously issued. In terms of section 2 (a) of the
prescription act, 1975prescription had been interrupted by
the issuing of the original summons and therefore the claim
was not prescribed.

HOW PRESCRIPTION SHOULD BE PLEADED

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MAKGATHO V OLD MUTUAL LIFE ASSURANCE

COMPANY ZIMBABWE LTD 2015 ZLR 5 (S)

The defense of prescription must be raised in pleadings as there

may be need for the other party to explain the reason for the delay.

LIS PENDENS.

Lis pendens refers to a special plea raised by the defendant that the matter
is being determined by another court with competent jurisdiction, on the
same cause of action and between the same parties.

In the case of Mhungu v Mtindi 1986 (2) ZLR 171 (S) the court held that a defence
of lis pendens will only succeed where there is a dispute between the same
parties, the subject is the same and where the dispute is founded on the same
cause of action

The case of Diocesan Trustees for Diocese Of Harare V Church Of The

Province Of Central Africa 2009 (2) ZLR 57 (H) held that

The plea in abatement of lis alibi pendens is raised by a party that is able
to establish the following prerequisites;
(a) The litigation is pending
(b) The other procedings are between the same parties or their privies;
(c) The pending proceedings are based on the same cause of action, and
(d) The pending proceedings are in respect of the same subject matter.
However, even if a party satisfies all the prerequisites, the court still has
discretion to order or refuse a stay of proceedings on the grounds of lis
alibi pendens, and in exercise of that discretion it will have regard to the
equities and to the balance of convenience in the matter. The exception is
available even where the matters consist of more than one suit.
Considerations of convenience and equity must underpin the exercise of
any discretion, whether or not to allow the defence of lis pendens. The
case which is allowed to proceed must not necessarily be that was
instituted first. The question is whether justice will not be done without
the double remedy.

N.B There is no prescription under customary law.

General claims – 3 years
Loans from state – 6 years
Road Traffic Act – 2 years to sue insurer

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Eagle insurance Co Ltd v Grant 1989 930 ZLR 278

It was held that a claim under section 25 of the road traffic act becomes
prescribed upon expiry of two years from the date on which the claim
arose while under section 28 of the interpretation act time is reckoned
exclusively of the first day and inclusively of the last day. This is only a
general rule and is subject to the provisions of any particular enactment. In
respect of claims under section 25 of the road traffic act, the cause of
action accrues on the day of accident causing damage and prescription
begins to run on that date.

Police Act - 8 mnths

Ngoni v Minister Of Home Affairs 2015 (2) ZLR 304

“Section 70 of the police act states as follows:

Any civil proceedings instituted against the state or a member in respect of

anything done or omitted to be done under this act shall be commenced
within eight months after the cause of action has arisen, and notice in
writing of any such civil proceedings and the grounds thereof shall be
given in terms of the state liabilities act (my emphasis)”

(iii) Lack of jurisdiction.

Read Mvami Pvt Ltd v Standard Finance Ltd 1976 (2) RLR 257
Owen Smith v Owen SmithB 1981 ZLR 514
Flood v Taylor 19978 RLR 230.

Dilatory Plea

This refers to such special pleas that have an effect on delaying the proceedings

(i) lis alibi pendens – some matter is pending in another court.

(ii) No locus standi - person who has instituted proceedings has no capacity
to sue
Read: Edwards v Woodnutt N.O 1968 (4) SA 124

In the case of Homodza v Chitungwiza Municipality HH-38-14

presided over by Takuva J

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The applicant resigned from her employment with the respondent

on medical grounds. She was advised in writing of what her
terminal benefits were. Portion of those benefits was paid and the
applicant then brought legal proceedings for the recovery of the
balance. The respondent filed an appearance to defend and
subsequently a special plea, to the effect that the High Court had
no jurisdiction to determine the matter, as issues relating to non-
payment of terminal benefits and arrear salaries were specifically
within the purview of the Labour Court, as these matters were
provided for in the Labour Act [Chapter 28:01]. The applicant
argued that that the High Court had inherent jurisdiction to deal
with the matter since the Labour Act did not specifically preclude
it from determining a claim for non-payment of terminal benefits
properly quantified and acknowledged by the employer. Further,
there was no employer/employee relationship or dispute that is
provided in terms of the Act, as the cause of action was clearly
premised on a document acknowledged by the respondent
reflecting the quantified amount owed to the applicant. This
document amounted to an acknowledgement of debt. By signing it,
the respondent signified its intention and willingness to be bound
by the terms of the document.

HELD: while the matter had its origins in labour law, these had
been superseded by the acknowledgement of debt, which formed a
separate cause of action based purely on the law of contract. There
was no labour dispute, other than the respondent’s intransigence in
refusing to pay the amount owed. There was no provision in the
Labour Act that would allow the applicant to approach the Labour
Court directly seeking a similar remedy she was now seeking.
Accordingly, the High Court had jurisdiction.

ACTUAL PROCEDURE for filing Pleas

R137 (1)(a) – plea in bar or abatement
R137(2) provides that the plea shall be in the appropriate Form No. 12 and you file it
with the registrar and serve a copy on the other side R138.

70. Exceptions

Either party can except to the other party’s claim or defence. It its an exception to the
plaintiff’s claim it will be on the basis that the claim does not disclose cause of action or

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its so vague and embarrassing so that the defendant does not know what claim he has to
answer. An exception to the plea is that the plea does not disclose a defence or its so
vague and embarrassing that the plaintiff does not know what the defendant’s defence is.

The purpose of excepting is to destroy the cause of action or force an amendment so that
the pleading clearly and properly reflects the cause of action or defence.

A pleading may fail to disclose the cause of action or defence.

(i) an essential element of the claim or defence has been omitted. The question of
what is essential element is a matter of substantive law i.e. negligence, vicarious liability.
(ii) where it raises a cause of action or defence which is unacceptable at law.

Lane v Eagle Holdings (Pvt) ltd SC 126/85

It was an appeal from Magistrates Court. The plaintiff had claimed payment of
$2000 being the balance of the bonus which defendant agreed to pay the plaintiff
in respect of services rendered as managing director of a subsidiary company of
the defendant. The defendant excepted to the plaintiff’s claim on the basis that
the agreement to pay the bonus contravenes Emergency Powers (Control of
Salary and Wage Increases) Regulations of 1981 and was therefore illegal and
enforceable. The exception was granted in the magistrates court and the
defendant appealed in the SC.

Held on appeal that it was not apparent from the plaintiff’s summons that the
bonus claimed represented an increase of the plaintiff’s earnings and that the
increase in earning was of such a magnitude as to offend against the regulations.
For that reason the summons was not excepiable and the appeal was allowed with
costs – what excepted must appear on the documents.

When a plea is vague and embarrassing it means that it is such that the plaintiff or
defendant can’t tell by reading it what the cause of action is or defence is. The vagueness
and embarrassment must go to the root of the cause of action. If the vagueness and
embarrassment does not go to the root of the cause of action or where there is a cause of
action or defence is clothed or there is some vagueness or incompleteness in the manner
in which it was set out which results in embarrassment to the other party the remedy is to
apply to strike out or to seek further particulars.

Matewa v ZETDC HH-304-13

(Mathonsi J)

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The defendant excepted to the plaintiff’s summons on the grounds that it did not
disclose a cause of action, as it did not specify whether the claim arose from a
contractual obligation or a delictual one. It argued that the averment in the
summons that the defendant’s actions were wrongful and unlawful was not
enough to found a cause of action and that in order to succeed in a suit for
patrimonial loss under the Aquilian action the plaintiff must plead and prove that
the defendant committed a wrongful act which resulted in actual loss.

HELD The determination of whether a claim is excipiable or not cannot be

premised on proof of an averment. Proof relates to evidence which is the province
of a trial and not an exception. The essence of any claim is located in the
pleadings, whose function is to inform the parties of the points of issue between
them, to enable them to know in advance what case they have to meet, to assist
the court define the limits of the action and to place the issues on record. To that
extent pleadings are required to be drawn in summary form, must be brief and
concise and must state only relevant facts and not evidence. It is the duty of the
court, when an exception is taken to a pleading, first to see if there is a point of
law to be decided which will dispose of the case in the whole or in part. If there is
not, then it must see if there is any embarrassment, which is real and cannot be
met by the supply of particulars. Unless the excipient can satisfy the court that
there is such a point of law or such real embarrassment, then the exception should
be dismissed. A pleading is excipiable on the ground that it does not disclose a
cause of action only if no possible evidence led on the pleading can disclose such
cause of action.
(2) The courts are increasingly being called upon to adjudicate over exceptions
which are devoid of merit and appear intended to delay proceedings. Invariably
excipients are approaching the court, frequently praying for a dismissal of claims,
as in casu, when the proper remedy would be for the plaintiff to be directed to
amend the impugned pleading. Where an exception of this nature is upheld, the
plaintiff should be allowed to amend the pleading.

Whether exception can be used to raise objection of jurisdiction

In the case of National Employment Council For The Construction Industry V

Zimbabwe Nantong International (Pvt) Ltd The High Court upheld an objection to
its jurisdiction taken by way of exception. On appeal

HELD; that as a general rule, exceptions taken by a defendant must be limited to

objections or defenses that arise ex facie the declaration itself. These would
include averments that the declaration or part thereof does not disclose a valid
cause of action or is vague and embarrassing. On the other hand, where the point

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taken constitutes a special defense, such absence of jurisdiction, res judicata or

prescription, the procedure to be followed is by way of special plea. These are the
instances where the defense relied upon is not evident ex facie the declaration and
involves the averment of some new fact or facts to be proved with fresh matter.
The procedure by way of special plea enables the plaintiff to rebut the defense
raised by replication and adduction of further evidence where necessary.

HELD FURTHER that in exceptional cases where a special defense taken is

apparent ex facie the declaration its self, the court may allow the matter to be
decided on exception. This is subject to the qualification that the plaintiff has
nothing to adduce in rebuttal and will not be prejudiced by a decision being taken
on exception.

Read: Salzman v Holmes 1914 AD 152

The plaintiff’s declaration contained several allegations that the defendant had uttered
defamatory words of the plaintiff. Para. 7 of the declaration read: “on or about the 25 th of
January 1909 at B aforesaid the defendant in the hearing and presence of and speaking to
one Herbert G King of and concerning the plaintiff and complaining to the said Herbert G
King of plaintiff’s conduct towards him made use of false, malicious, slanderous words;
“there pointing a sport on the band of Kafir river, I was pulled off my horse and was
nearly killed (meaning by plaintiff) and there a native woman was murdered (by plaintiff)
and my man Holstein was told that his grave was already dark for you (by plaintiff) if he
crossed the river”.

The defendant denied para. 7 in his plea but he went on to plead as follows: “with further
reference to para. 7 of the declaration the defendant admits that he did on or about the
time mentioned in the presence and hearing of plaintiff make use of the said Herbert G
King of words more or less as alleged but said that the said words do not give the whole
of the conservation nor its clear and true meaning.” The defendant continued in h is plea
that in speaking as stated the defendant merely referred to the unpleasant associations
connected with the place and its immediate vicinity in consequence of what had
transpired that day and neither intended nor did infer or impute anything to plaintiff as
alleged. The plaintiff excepted to the part of defendant pleas as uncertain, obscure, vague
and embarrassing. The court a quo was of the view that the plaintiff should have
proceeded by way of applying to strike out that portion of plea and order that it be struck
out. The defendant appealed.

Held: The plaintiff was correct to except because if the offending paragraphs of the plea
were intended as a special defence, they did not comply with the ruels in that the
defendant did not admit, deny or confess and avoid anything. The court went on to say

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the words more or less might mean anything and defendant should have explained
unpleasant circumstances referred to in his plea.

Judge of Appeal Innes gave his view of the distinction between exception and application
to strike out:

“The distinction between exception and application to strike out is clear. An exception
goes to the root of the entire claim or defence as a case maybe. The expient alleges that
the pleading objected to taken as it stand is legally invalid for its purpose. Whereas
individual sections which do not comprise on entire claim or defence but are only a
portion of one must if objected to be attached by a motion to expinge application to strike
out.”

According to Innes C J the offending paragraphs if intended to be part of plea of denial

they were speculous and if meant for special defence were insufficient. The conclusion
was that these either be excepted or struck out.
Appeal was dismissed.

 Procedure for excepting

O21 R137 (1)(b)
Form No. 12 is used.

Application to strike out

O21 R137 (1) (c)
R141 what should be struck out is any matter which is argumentative, irrelevant matter.

Green v Latz 1966 RLR 633

Superflous material can be struck out, vague and embarrassing material where it does not
go to the root of the cause of action or defence; inconsistent of contradicting matter, any
matter which tends to prejudice or embarrass the other party any matter which tends to
delay the trial of the action R141(a).

Purpose of applications to strike out is to have the matter struck out so as to clarify the
pleading so that it properly reflects the case which the plaintiff or defendant has to
answer.

Form 12 is used for procedure to apply to strike out.

Read Tekere v Zim Papers (Pvt) Ltd 275 1986 (1) ZLR 275
It’s a defendant’s claim against the plaintiff )18.

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The claim in reconvention does not necessarily have to arise out of the same facts as the
plaintiff claim. The rules of the claim in re-convention are the same as the declaration
mutatis mutandis R121(2). The defendant can also incorporate allegations of facts
contained in the plea or declaration into his claim in re-convention R122.

Hepker v Woncon Invstms (Pvt) Ltd & Ors HH-19-16

Musakwa J

The plaintiff (respondent) issued an endorsed summons in terms of r 13() of the

High Court Rules. The summons was accompanied by a declaration. Appearance
to defend was then filed on behalf of the defendants (applicants). Subsequently
they requested for further particulars to which the plaintiff responded. They again
sought further and better particulars to which the plaintiff responded. They then
wrote to the plaintiff, pointing out that the filing of a declaration was superfluous
since he had opted to file an endorsed summons. They intimated an intention to
apply for the striking out of those parts of the summons that were inconsistent
with the particulars furnished. The plaintiff replied that there was nothing to
prevent the defendants from pleading and filed a notice to plead and intention to
bar. The defendants then filed an application to strike out. The application to
strike out was in the form of a statement which contended that the plaintiff’s
declaration should be struck out as being superfluous.

HELD: an application to strike out should be in the form of a court application or

chamber application, as required by r 226. The form of such application is
stipulated in r 227. An application to strike out will not be granted unless the
applicant shows that it will be prejudiced in the conduct of its claim or defence.
While the plaintiff needlessly filed a declaration accompanying an endorsed
summons, the defendants had not led evidence showing in what way it they had
been prejudiced in the conduct of their defence. That the defendants would
needlessly incur costs in pleading to the additional document was neither here nor
there. The plaintiff would, in the event of succeeding in his claim, be restricted to
costs of preparation of the endorsed summons only
Claim in reconvention must be bound together filed together with the defendant’s
plea R121(1). If the plantiff’s action is stayed, discontinued or dismissed the
defendant may still proceed with the claim in reconvention R123. Normally
judgement on the claim in reconvention and on the plaintiff’s claim must be
pronounced at the same time R120(1). The reason is that in terms of facilitating
execution the two judgments can be set off. Where (the judgment) the claims can
be set off the court can incorporate the set off in the judgement R120(2).

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In appropriate circumstances provided good cause shown it would be necessary

for the plaintiff’s claim and the claim in reconvention to be tried separately R124.
This apply when the two claims are totally unrelated. The court could actually
suspend the execution of the first judgment to be granted pending the outcome of
another matter.

See Van der Berg and Partners Ltd v LC Robinson and Co. Ltd 1952 SR 148

71. Defendant’s claim in reconvention

Instead on defending the claims put up in the summons through a plea, the
defendant to a claim can issue a claim in reconvention which is alternatively
known as a counter claim. In such procedure the defendant is actually
instituting an independent claim against the plaintiff. In this regard, the
plaintiff becomes the defendant in reconvention whilst the defendant becomes
the plaintiff in reconvention. Just like in the main claim, the defendant in
reconvention will be obliged to file and serve his or her plea rebutting the
allegations set forth in the claim in reconvention, consent to judgment e.t.c

a. REPLICATION O19

A replication is not compulsory. It is where the defendant raised new facts in his plea. A
replication will be required where the defendant’s plea is one of confession and
avoidance. R126.

If it is to be filed must be filed within 12 days of the date of service of the plea R125. If
the plaintiff does not intend to file a replication he can deliver a letter to the defendant
notifying him that he does not wish to file replication and he is joining issue with the
defendant. It should be delivered within 12 days of the service of the plea R130.

Plaintiff’s plea to the Defendant’s claim in reconvention – The plaintiff follows the same
rules as in defendant claim in reconvention R127.

A defendant’s replication to the plaintiff’s plea to the defendant’s claim in reconvention.

That follows the same rules as the plaintiff’s replication

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10.5.6 Subsequent pleadings

b. REJOINDER

The defendant may choose to file a response to the plaintiff’s replication and it’s the
rejoinder. It should be filed within 12 days of the service if the replication R129. If the
replication raises new facts which have not been raised in previous pleadings there is
need to rejoinder.

c. CLOSURE OF PLEADINGS 0 16

Pleadings can be closed prematurely when the party is barred. R107A

Pleadings are also closed if either of the party joined issues and which any pleading of the
opposite party without adding any further or special pleading to it.

A defendant can also join issue after receiving the plaintiff’s replication because we may
not wish to file a rejoinder. Pleadings can also be closed if there is a written agreement
signed by the LPs of both parties indicating that the pleadings should be considered as
closed. The agreement will be filed with the registrar R107(c).

N.B If none of the circumstances apply and the parties consider that the pleadings be
disclosed then the parties should make chamber application for an order declaring that the
pleadings have been closed R108. The judge will make an order as the deem fit.

72. Significance of Closure of Pleadings

Parties cannot proceed to the discovery of documents without of pleadings R160. In

special circumstances you have leave of the judge to proceed discovery of documents
without of documents R160.

The parties cannot proceed to pre-trial conference before closure of pleadings R182. The
parties can’t proceed to set the matter down for trial without closure R214.

In terms of the law closure of pleadings means that the claim can now be transmitted to
the heir of the plaintiff in the event that the plaintiff dies after the closure of pleadings
and provided that the claim is not personal to the plaintiff i.e claim for divorce. The
parties rights are regarded as frozen (litis contestatio).

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See Jankowiak & Anor v Parity Insurance Co. 1963 (2) SA 286

The plaintiffs were husband and wife and had been injured in a collision between a motor
vehicle driven by the wife by the one driven by Forest. They instituted proceedings
against Forest’s insurer. The parties joined issue on the 2 nd of June 1962. The husband
died on the 4th of June 1962. The wife was the executrix of the husband’s estate. She
applied to be substituted for the husband in relation to the husband’s claim. The
defendant agreed to the substitution in relation to specific damages i.e medical expenses,
hospital expenses and loss of earnings and not in relation to general damages which were
for pain and suffering because claim was personal to the deceased and therefore not
transmissible to the estate. The parties brought the issue to court for determination.

Held: The claim for general damages was transmittable to the estate of the deceased. It
stated that closure of pleadings results in litis contestatio which is freezing of the parties
rights.

73. OTHER COMMON PROCEDURE ARISING DURING CONTESTED

ACTIONS

74. DISCOVERY OF DOCUMENTS – O24

O24 R160 – discovery is initiated by a notice to make discovery which is a written notice
requiring party to make discovery of all documents relating to any matter in question or
in issue which happen to be in his possession or is still in his possession or control. The
notice can be served by either party and the time limits for responding is 24 days
excluding public holidays and weekends.

N.B The purpose of discovery is to prevent what is called trial by ambush – springing a
surprise on the other party. The procedure for making discovery is that deliver an
affidavit in form No. 18 and attach a schedule of documents and that schedule will be
divided into two parts. The first part will contain documents which you object to produce
(if it contains privilege information i.e communication between lawyer and client,
covering state privilege, statements by witnesses – for the purpose of litigation existing or
contemplated – discovery must be made with the bona fide intention to the LP inorder to
obtain advice or institute proceedings (legal professional privilege).

In the case of Morgan Tsvangirai versus Registrar General (Elections) HC 469/2003 The
court in this case dealt with the law relating to discovery. It said that order 24 of High
Court Rules deals with discovery of documents. It sets out in some detail what should be
discovered, the effect of non-disclosure of documents further discovery of documents,
inspection of documents and other related matters. The court quoted with approval the
quotation in Herbstein and Van Winsen in “The Civil Practice of the Supreme Court of
South Africa” 4th ed. at p 582 which described the purpose of discovery as follows:

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“Discovery is a procedure whereby a party to an action may discover what documents

relating to the matters in issue between them are in the possession of his opponent.
Generally speaking he is entitled to have disclosed to him the nature of these
documents and to inspect them and take copies of them.”
The judge endorsed the quotation by saying that the purpose of discovery is to ensure
that no party to any proceedings is taken by surprise at trial as all documents relating
to the matter between them would have been disclosed. It is also clear from the
passage quoted above that a party is entitled to request that the other party disclose
the nature of documents in their possession as long as they are relevant to the dispute
between them. The requesting party need not know the form of the documentation or
the content of such documents. It is for the party who has been asked to effect
discovery to swear on oath in an affidavit whether or not he does have such
documents, whether he had them but no longer has them and whether they are
protected in any way. The importance of discovery affidavits has been repeatedly
stressed in the courts and particularly the need to discover all documents which are
relevant to any matter between the parties.
The court further dealt with the test to be applied to determine the relevance of
documents to be discovered the court reffered to the words of BRETT LJ in the case
of Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co. (1882)
11 QBD 55 in which he said that
“It seems to me that every document relates to the matter in question in the action
which, it is reasonable to suppose, contains information which may – not which
must – either directly or indirectly enable the party requiring the affidavit either to
advance his own case or to damage the case of his adversary. I have put in the
words ‘either directly or indirectly’ because, as it seems to me, a document can
properly be said to contain information which may enable the party requiring the
affidavit either to advance his own case or to damage the case of his adversary, if
it is a document which may fairly lead him to a train of enquiry which may have
either of these two consequences.”
The court refered to the test quoted with approval. It added that the test was
extremely wide and includes not only documents which are directly relevant but
also those that may indirectly assist the party seeking discovery. The court further
stated that the test appears to be in conformity with the wording of Rule 160 of
the High Court Rules which is crafted as follows:
“A party to a cause or matter may require any other party thereto, by
notice in writing, to make discovery on oath within twenty-four days of all
documents relating to any matter in question in such cause or matter which
are or have at any time been in the possession or control of such other
party.

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It is clear therefore from the authorities cited that the applicant is entitled
to request full and complete discovery by the respondents and the
respondents are obliged to make full discovery.
The court also further dealt with the instances in which further discovery
can be applied for. It stated that
“The applicant in making this application proceeded in terms of Rule
162 of the High Court Rules which relates to a request for further
discovery where a party is not satisfied that there has been full
disclosure by the other party. The question which arises in this case
however is in what circumstances can a court compel further discovery
of documents. In the case of Federal Wine and Brandy Co. Ltd v
Kentor 1958 (4) SA 735 at 749 it was held that a discovery affidavit is
considered conclusive unless it can be shown from the discovery
affidavit itself or from documents referred to in the discovery affidavit
or from pleadings or admissions made by the party making the
discovery affidavit or from the nature of the case and documents in
issue that there are reasonable grounds for believing that the party has
other relevant documents in their possession or power.
Kerwin v Jones 1957 R & N 432, 1957 (3) SA 181
Boyce v Ocean Accident and Guarantee Co-operation Ltd 1966 (1) SA 544
Association of Rhodesian Industries & Ors vs Brookes and Or 1972 (2) SA 687
(state privileges)
(see Part 2 notes).

Once a party attach discovery of documents and the other party think the discovery is
incomplete he can make a note of further discovery R162. If the party assist that they do
not have the documents they have to state on oath on the affidavit, Where the claim of
privilege exist it can be challenged in terms of R177. The court of the judge can actually
inspect the documents.

Once the documents are disclosed and not privileged give a notice to allow to inspect the
documents using Form 19. The notice basically calls upon a party who makes a notice to
deliver a response within 5 days by way of a notice in Form No. 20 specifying the
following:-
(i) the place where the documents may be inspected. For parties represented by LP
the usual place is LP’s office.
(ii) the period during which the documents may be inspected. Each period should not
be less than 5 days and should be on not later than 3 days from the date of
delivery of the notice.
In the case of bankers books or books of accounts on constant use for the purpose of any
business in case of inspection the place is their usual place of custody.

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R164(1(a) was inserted by SI 80/00 – Form No. 20 specifying the place where documents
will be inspected.
R164(2) – place in LP’s office or usual place of custody of books of accounts.

 Where one receives Form No. 20 inspect the documents during normal hours between
the period specified R164 (3).
 If a party fails to produce a document for inspection when required to do so, he will
not be allowed to use it at the trial unless the court orders otherwise on good cause
shown R164 (4).
 If a party fails to make discovery to make inspection, you make a chamber
application for an order to make compliance with the notice to inspect R165 (1).
 If a party is ordered to make discovery in terms of R165(1) and still do not comply
with the order, then the party in whose favour the order was made can make a
chamber application for the dismissal of the party’s claim or striking out of the
defence if it’s the defendant who is failing to comply with the order. The judge
dismissing the claim or strike out defence may proceed to give default judgment
against the defendant. If it’s a claim for damages then the court will lead evidence as
to quantum either by affidavit or oral (R165(2).

 A party who requires another to produce a document at the trial can give them a
notice in terms of Form. No. 21 R166(1). The notice must be given at least three days
before the hearing. However the court may allow the notice to be given during the
course of the hearing R166(2). The court may also order the production by any party
of any documents in his power or control relating to the matter in question and the
order is made during the course of the proceedings R167. R168 deals with failure to
produce the documents at the hearing of the proceedings or has been ordered to
produce that the hearing by the court and fails to do so – the court may dismiss the
claim or struck out the defence of the defendant and gives default judgment. This is
subject of whether there has been evidence either orally or affidavit to quantum the
amount if its for damages.

 Where a party in a pleading or affidavit filed during the course of proceedings makes
reference to any document the other party may require him or her to produce such
documents within 10 days and also to permit him to take a copy thereof. R169(1) as
amended by SI80/00. The notice is in form No. 22.

A party who fails to comply with the notice Form No. 22 then he will not be allowed
to use that document in the action of proceedings except with the leave of the court
but any other party may use the document R169(2).
Make a chamber application to compel production of the document R169(3). If the
party is ordered to produce the document for inspection and making of copies and
they require to comply with the order then they can be a chamber application to
dismiss the claim or strike out defence followed by default judgment. R169(4) and
evidence as to quantum of damages orally or by affidavit.

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R171 service of an order or notice to make discovery on the LP shall be sufficient

notice unless the party against whom the order was made shows that he had no
knowledge or notice of the order in R171.

It is an offence for a LP to fail to give notice to make discovery to the client and is
liable to attachment R172.

75. PRE-TRIAL CONFERENCE (026) (Curtailment of Proceedings)

The purpose of the Pre-Trial conference is to attempt to settle the matter out of court
and if that fails to reach an agreement on many issues as possible to curtail the trial;
to define the real issues in dispute so that the parties and the court are clear.

In the case of Sithole v P G Industries (Zimbabwe) Ltd. t/a African Lumber

Company (Pvt) Ltd SC 2/04 The court was asked to decide on a constitutional
matter in which the applicant alleged that his right to fair hearing had been
infringed in contravention of section 24 of the then constitution of Zimbabwe. It
had the opportunity to comment on the purpose of a pretrial conference. It stated
that the purpose of a pre-trial conference is set out in r 182(2) of the Rules, which
reads as follows:

“At a pre-trial conference the parties shall attempt to reach agreement on

possible ways of expediting or curtailing the duration of the trial and on
the following matters –
(a) the obtaining of admissions of fact and of documents;

(b) the holding of any inspection or examination;

(c) the exchange of reports of experts;

(d) the giving of further particulars reasonably required for the purpose of
the trial;

(e) plans, diagrams, photographs, models and the like, to be used at the
trial;

(f) the consolidation of trials;

(g) the quantum of damages;

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(h) a definition of the real issues and the manner in which any particular
issue may be proved;
(i) an estimation of the probable duration of the trial;
(j) the preparation of correspondence and other documents to be handed in
at the trial in the form of a paged bundle with copies for the court and all
the parties; and, if it is practicable to do so, the parties shall attempt to
reach a settlement of all or any of the matters in dispute between them.”

R182 – there are three ways in which the PTC can be convened
(i) by agreement between the parties where they hold the PTC themselves at
mutually convenient time and place Rule 182 (1)
(ii) where the parties by consent agree that the PTC be held before a judge in
chambers. The date and time is fixed by the registrar in consultation with the
parties R182 (3).
(iii) Can be convened in terms of the rules if the judge instructs the registrar to
convene a pre-trial conference before a judge in chambers at a time specified
in the notice of the registrar and the rule require the registrar to give
reasonable notice R182(4). This can be actually done at any time during the
proceedings regardless of whether the parties had done the pre-trial
conference themselves. However if the notice is given before the parties
convene the PTC it shall not be necessary for them to do so R182(5).

 However be aware that for matters that are before the HC in Harare there is a special
practice Note 1 of 1995.

 Some of the issues are in R182(2) which can be discussed at PTC i.e obtaining of
admission of facts and documents; the parties can also discuss the holding of any
inspection or an examination, the exchange of the experts reports, giving of further
particulars for the purpose of trial and can agree on a deadline as to when these
should be furnished; discuss the issue of whether there are any plans, diagrams,
photographs at the trial and if so who is going to put them together, discuss
consolidation of trial – applies where the defendant is sued by many plaintiffs, can
also discuss the issue of quantum of damages if the defendant is denying negligence,
estimation of the probable duration of the trial, no of witnesses to be called, the
complexity of the facts, discuss issue of preparation of correspondence and the
documents which are to be used at trial in one bundle and pagenate them, defining of
the real issued to be decided at the trial. The issue of an interpreter can also be
discussed.

If the parties held the PTC themselves then at the conclusion of the PTC they must draw
up the minute of the PTC which should summarize the issues discussed and to be signed
by the parties or their LP R182 (7).

If it is held before a judge then the judge would do the following;-

(i) record the decision taken at the PTC and any agreements reached by the parties;

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(ii) he may make an order limiting the issue for trial to those not deposed of by
admission or denial.
(iii) He must record the refusal of any party to make an admission or reach an
agreement and the reasons thereof. If it turns out that the reasons were
unreasonable then the party will be awarded costs R182 (10).

If the parties can not agree on any issue in R182(2), any of the parties may make a
chamber application to a judge for a direction in regards to a matter in dispute R182(8).
If the parties manage to reach a settlement on any of the matters in dispute then a judge
may make an order embodying the terms of settlement that is an application by the
parties (chamber) R182 (9).

If the parties cannot agree on how to hold a PTC or if they agree to hold themselves but
do not agree on the date can make a chamber application for direction on how to proceed
R182(6).

If the party fails to comply with the direction given by a judge in relation to the holding
of a PTC or with a notice served by the registrar from a judge to convene PTC as per Rue
182(4) then a judge may dismiss the parties claim or strike out the defence. It can be
done either on oral application or chamber application R182(11).

R183 allow a judge to consult parties in chamber for discussion.

R184 says that a court giving judgement that the trial of the action must take into
consideration the provisions of R182 in relation to making of an order as to costs. If the
court is of the view that party has been unreasonable in making an admission or reaching
an agreement then the court may order such a party to pay additional cots for such refusal
even if they are the successful party in the action (R184).

Special Procedure for Harare: NI March 1995

All PTCs in Harare are held before a judge in chambers. However the parties can request
a judge to allow them to hold the PTC themselves if they believe that PTC before a judge
would not serve any useful purposes because the legal or factual issues are very complex
or because the prospects of settlement or agreement are very remote. Reasons should be
given for their belief.

The procedure is to file a notice (once in position to hold a PTC) to attend the PTC with
the registrar and in that notice leave the date and the time blank. The notice is
accompanied by a concise summary of the evidence led at the trial including a list of their
evidence. The notice should also be accompanied by a draft PTC minute listing the
issues what you perceive to be determined by court, admission, estimation of duration of
trial and other issues in R182. The Registrar will inset the date and the time in the PTC.
Take the notice to the other party and serve it on them together with the copies of
summary of evidence and draft PTC minutes. Then file proof of service with the
registrar.

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The party who receive the notice for the PTC and accompanying documents should also
file their summary of evidence at least 5 days before the date of the PTC. If they dispute
the draft PTC minute or wish to add anything further then they must file their own draft
PTC. The date set for the PTC, a party should attend either in person or by a rep familiar
with the facts and duly authorized to make decisions on behalf of the party together with
the LP. A LP can apply for their client to be excused from attending the PTC in person
for good cause shown. It’s only granted in special circumstances.

At the PTC the judge will actively seek to call the strengths and weaknesses of active
parties and to reach an agreement on the matter referred to in R182(2). The judge’s
intention will either be to reduce the issues between the parties and assist the parties to
settle the matter out of court.

The judge who presides at the PTC will not preside at the trial (bias).

If a party is a self actor serve the relevant notices on them by registered post at the
address of service and provide proof of posting as proof of service. If the party is a self
actor the judge may condon their failure to provide a summary of evidence or draft PTC
minutes. The nature of the case will be ascertained at the PTC.

A judge may postpone the PTC to a later date if he is of the view that there are some
issues to be clarified and such clarification will lead to the resolving of the matter or
narrow the issues. The PTC will still be before the same judge and another judge.

At the end of the PTC the judge will draw up the minutes. It is set down for 45 mins on
Thursdays and Fridays.

Godknows Jonas versus Rhona Shawlyn Mabwe HH 72-16 the court held that
“My reading of Order 26 r 182 (11) is that the Pre-Trial Conference Judge has a
discretion to dismiss a party’s claim or strike out his defence, or make some other
appropriate order where the party fails to comply with any direction given by the
Judge as prescribed in r 182, or where the party fails to comply with a notice
issued in terms of r 182. In the circumstances of this case, there was no direction
issued in terms of r 182. The failure by the applicant to attend the PreTrial
Conference at the set down date and time constituted a failure to comply with a
notice given in terms of Order 26 r 182 (4). ‘Default’ in the legal context has been
described as a failure to do something required by law, usually failure to comply
with mandatory rules of procedure”

a. CONSEQUENCES OF FAILURE TO ATTEND PRETRIAL

CONFERENCE-

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Masama v Borehole Drilling (Pvt) Ltd. 1993 (1) ZLR 116 SC.

In that case the applicant’s legal practitioner had failed to attend a pre-trial
conference. This was despite the fact that respondent’s legal practitioner had
informed him in writing and had also attached a copy of the notice of set down.
Default judgment was then granted as a result

76. SET DOWN

Note 1/95 – trial dates can be allocated at PTC – in terms of the rules of court is open to
any day that is not a Sunday or public holiday R281 at the working hours are 8 – 1 pm
and 2 – 4 pm on each business day. For the court there are what are known as vacation
days and are published by the calendar which fixes which days are vacations and which
are not. A contested matter can’t be set down during a vacation unless its extremely
urgent.

After PTC request the registrar to prepare cause list in Form 26A. Form 26A require the
following: the number of days required for trial, who are the plaintiff’s LP, would LP be
actually be representing the plaintiff and is it the same for the defendant. Confirm for
any discoveries. As soon as dates are available the registrar will allocate dates for trial in
terms of R215. The date can be changed on good cause shown but the parties should be
consulted. The parties can change the date but have to apply to a judge.

If the parties are represented the notice is served to the LP and if not by registered post to
the address of service or last known address. As a matter of constitutional law the matter
should be held within reasonable time.

If the parties are represented the notice is served to the LP and if not by registered post to
the address of service or last known address. As a matter of constitutional law the matter
should be held within reasonable time.

Pickering v Zim Newspapers 1991 (1) ZLR 71.

The applicant issued summons for defamation on the 25 th of January 1990.

Pleadings were closed on 9th of August 1990, the HC was held and there was
application for set down. The applicant sought an urgent set down of the matter
because the defendant was continuing to publish defamatory allegations against
him and this had a detrimental effect not only on him and family but also in public
confidence in the banking sector. He applied in terms of S18(9) of the
Constitution. He also said that the defendant would suffer no prejudice if the
matter was heard as a matter of urgency. He said the matter was unlikely to be
held in 1993 if the normal proceedings were followed. The respondent applied
for cancellation of the application alleging that the lack of facilities for the
hearing of civil trials could not defeat the applicant’s constitutional right,
submitted that matters that that of the applicant should be set down within 1 years

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of the commencement of the proceedings and within 6 months after application

and any delay beyond that time is unreasonable.

The application cannot be equated to a any ordinary commercial claim and the
applicant was entitled to vindicate his name as soon as possible in response to the
application he suggested the matter be heard on the 29 th of October 1990 and be
heard at any time between the 12th and the 16th of November but those days had
not been taken by the applicant.

Held: The applicant had not established that the trial could not be heard before
1993. The applicant had not established that the trial in 1993 would infringe
S18(9) of the Constitution given to the fact that allowance must be given to
institutional shortcomings. The applicant was in no worse position than other
litigants and special preference for his matter would violate the constitutional
rights of the other litigants.

The application was dismissed with costs.

77. TRIAL - O49

Trial is open to the public S49 of the High Court Act. Proceedings are in English but
court can choose the trial to be held in camera.
Hayes case
The duty to begin depends on who has the burden of proof. It its on the plaintiff, the
plaintiff adduces evidence first R437 (1). If on the pleading the burden is on the
defendant then defendant adduces evidence first R437 (2). Where the burden or proof is
on the plaintiff on same issues and on the defendant on others then the plaintiff will
adduce evidence first on those issues on which the burden of proof is on him. The
plaintiff will then adduce evidence on all issues. The plaintiff will then adduce evidence
on those issues not previously addressed or dealt with R437(3),(4).

If there is doubt or dispute as to who has the burden of proof then the court has the
discretion to determine which party shall begin.

The opening address (plaintiff)

By the plaintiff R438(2). The purpose is to give a summary of the facts which are going
to be proved by evidence. At this stage there are no arguments.

16.1 Presentation of Evidence

 Witness or other parties themselves should be outside the court until their time to give
evidence has come
 Guard against inadmissible evidence.
 The court in a civil trial cannot call a party to give evidence without the consent of
the parties. However the court can recall a party who has testified to clarify certain
aspects of the case. Parties can also recall witnesses and if the other party objects

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make an application to recall and its done when the parties has closed the case so that
you reopen R437(5).

Haldhla v President Insurance Co. 1965 (1) SA 614

The Appellant was one of a group being conveyed in a lorry insured by the Respondent
on a trip to a church meeting. The owner of the lorry had charged the party the estimated
expenses in respect of the petrol and oil. The appellant’s pro rata share was two shillings
and sixpence which he agreed to pay. In an action for damages sustained as a result of
bodily injuries received when the lorry overturned a constable, who had investigated the
accident, had handed a plan and a key thereto. The key showed the registration number of
the lorry to be TAB 3581 while the registration number on the lorry was TAB 3541. At
the close of the plaintiff’s case the defendant stated that on the question of liability it had
only two points to argue, (1) that it had not been found that the vehicle involved was the
lorry referred to in the declaration; and (2) that the evidence did not justify a finding that
the appellant was being carried for reward. Plaintiff was granted an adjournment to
consider his position and on resumption he made application (1) to hand in a report of the
accident by the owner of the vehicle in which it was clear that the motor vehicle involved
was TAB 3541 AND (2) to recall the constable to testify that he had made a mistake in
the key to the plan. Both applications were refused and the Court declared absolution
from the instance.

Held – a trial court in its discretion has the power to recall a witness who has already
given evidence even after the defendant has closed its case.

Held further – that the trial court erred in not allowing the constable to be recalled to
correct what was a slip of the open.

The court can initiate an inspection in loco.

See Hebstein: Civil Procedure 3rd ed 556.
If examining own witness do not ask leading question. These questions suggest answer.

78. Examination in Chief

No leading questions.
 X-examination by the defendant
 Re-examination
At the conclusion of the plaintiff’s case they close their case and the defendant can
actually apply for absolution from the instance. This is where the defendant argues that
case presented by the plaintiff is insufficient to put him to his defence (no prima case). If
there is no such application the next stage is the opening of defendant’s address R438(3).
The defendant will also call his witnesses who will go through the same processes set out
in the plaintiff’s case.

Standard Chartered Finance Zimbabwe Ltd V Georgias And Anor 1998 (2) Zlr 547

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The plaintiff issued summons claiming from the defendants jointly and severally,
payment of certain amounts which it claimed were due and owing by them. The
defendant opposed the claims and made a claim in reconvention for US$3 512 170.10.
The basis for the counter claim was that the defendants had concluded a contract with a
company operating in Botswana (Sinatla) to supply 97 triaxle interlink trailers for a unit
price if US$36 207.94 each. In January 1993, an employee of Standard Chartered
Finance, acting in the course and scope of his employment, had phoned the Managing
Director of Sinatla and told him that the defendants were in financial difficulties. As a
result of that conversation, Sinatla withdrew from the contract. As a consequence, the
defendants suffered the damages that they claimed. The defendants’ claim in
reconvention was set down for hearing. After the close of the defendants’ case, the
plaintiff moved for absolution from the instance

Held - In considering an application for absolution from the instance, a judicial

officer should always lean in favour of the case continuing. If there is reasonable
evidence on which the court might find in favour of the plaintiff, the case should
continue.

N.B X-examination is not compulsory – don’t do it if there is no issue to challenge.

After the defendant present his case he will close his case and the applicant will do this
closing address. The closing address starts with the plaintiff followed by the defendant
and finally the plaintiff will reply to what the defendant has said. If in the reply the
plaintiff cites new cases the defendant may be allowed to respond to such. The closing
address must be oral.

See. Transvaal Industrial Foods Ltd v V.B.M.M. Process Pvt Ltd 1973 (1) SA 627.
This was an appeal from TPD. The main argument for counsel of the appellant was the
submission that the trial judge had committed a serious prejudicial irregularity in that he
had directed counsel to submit their closing arguments in writing he had also proceeded
to decide the matter without considering the written arguments.

Held: Generally arguments for the litigants in a trial should be delivered orally in open
court and not in writing to the judge in his chambers. Oral argument is far more effective
than written substitute. Consequently neither the court nor the litigants should normally
be deprived of the benefit of oral arguments in which counsel can fully indulge their
forensic ability and persuasive skill in the interest of justice and their clients. A trial
court should therefore not direct that the arguments be delivered in writing except in
special circumstance and only after discussion with counsel. P628.

Conclusion is that the court a quo had committed a serious irregularity in denying the
litigants an opportunity to address the court. The court then considered to deal with the
matter on the merits and dismissed the appeal with cost

16.2 Postponement (Adjournment of Trial Proceedings R445)

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Adjournment can be at the instance of the court. The first thing to do is to

approach the other side and ask for consent to postponement but if they do not
consent make an application to the court for postponement. The court will take
the following into consideration; IN THE CASE OF Midkwe Minerals (Pvt) Ltd v
Kwekwe Consol Gold Mines (Pvt) Ltd & Ors S-54-13 Ziyambi JA, Chidyausiku
CJ & Mutema |AJA concurring) said that the grant or otherwise of a
postponement is in the discretion of the court. A party seeking the grant of a
postponement or other indulgence at the hearing must come prepared for a grant
or refusal of its request. A legal practitioner must be prepared, in the event of a
refusal by the court to grant a postponement, to proceed with the hearing if so
ordered. To appear before the court totally unprepared and totally ignorant of the
merits of the case smacks of negligence on the part of the legal practitioner.

Madzimbamuto v LandnerBurke NO & Ano. 1 1966 RLR 228

The applicant applied on notice of motion for an order of habeaus corpus in

respect of her husband who was in detention in Gwelo prison. In her notice of
motion served on the respondent on the 24 th of February 1966 the applicant called
upon the respondent to file her opposing affidavit by the 4 th of March 1956. The
affidavits were not filed and still not filed at the time of hearing 14 th march 1956.
The solicitor general who was appearing on behalf of the respondents sought
postponement of matter for further investigations of legal issues and filing of
affidavits. Counsel was sent overseas to research on many of the books not
available in local libraries. The applicant opposed application for postponement
and as an alternative sought to have an order to compel the respondents to file
their affidavits on a specified date. He also gave the court an indication of the
proposed nature of contents of such affidavits.

HELD: the rule do not provide for an order to disclose the contents of the
respondents affidavit.

HELD: Although the granting of a postponement is an indulgence of the court, it

is normal to grant a postponement provided that the application for a
postponement is bona fide and the party applying for such postponment is
prepared to pay the wasted costs and there is no substantial prejudice to the other
party, pg. 231.

Conclusion: issues were sufficiently complex and prima facie case to allow the
postponement to allow filing by affidavit.
Issue of prejudice by postponement, the court noted that the respondents were
prepared to release the applicant’s husband from prison without admitting the
unlawfulness of the detention. However the husband would still be restricted to
the area of …..

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Held: The matter was to be postponed and the respondent ordered to pay wasted
costs and to file their affidavits by 28 April 2006.

Leapman & Anor v Barrow 1971 (1) RLR 40 GD

On the day of the trial of the action, the defendant applied from the bar for a
postponement sine die (without specifying a date). Two grounds of postponement
were given:

(b) it was alleged that the plaintiff had filed his discovery affidavit late
(c) the plaintiff was also alleged to have filed his plea to the defendant’s claim in
reconvention late.
The plaintiff’s discovery affidavit was filed on 16 August 1971. The trial was set
down for hearing on 18 August 1971. The plaintiff’s discovery affidavit
disclosed 42 documents of which almost 10 of them were not in the defendant’s
discovery affidavit. In addition there was an indication that the plaintiff had not
made full discovery.

Held: The defendant was prejudiced by the late discovery because he denied him
an opportunity to inspect and take copies if necessary of the disclosed documents
and also to prepare evidence in response to the documents. Therefore the
postponement was granted.

A similar situation would not arise at the present rules because discovery must be
completed before trial dates are allocated.

Cunningham v Cunningham 1958 R & N 655

The applicant who was the respondent’s ex-wife brought an application for the
increase of he amount of maintenance payable to her by the respondent under an
existing court order through an administrative which is the office of the
applicant’s attorney the fact that the applicant’s opposing affidavit had been filed
escaped everybody’s notice until a day or two before the hearing. Applicant’s
counsel sought postponement of matter to enable investigation of the respondents
opposing affidavit to see whether it might be possible to adduce evidence which
would show the facts in the respondent’s affidavit to be wrong.

Two contentious issues was whether or not the respondent was in areas (ii) the
financial circumstances of the respondents.

HELD: The issue of whether or not respondent in areas had no bearing on the
application. On issue of respondent’s means it was said that it was a matter
peculiary within the respondent’s knowledge and it was difficult to see how the
applicant would produce contradictory evidence. The court also noted that the
matter could not be postponed subject to the conditions that the applicant pays the
wasted costs because the applicant was appearing i.f.p (in forma pauperis) the
court also said that there was no indication that there was important evidence

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which the applicant sought to give. The court was of the view that the applicant
was on a fishing expedition.

Conclusion
It would be an injustice to the respondent to postpone the matter. The application for
postponement was refused.

Hungwe J in the case of Zaranyika v Zvoma & Anor HH-222-10 said that
“After the parties have led their evidence, but before judgment is handed down
the court has a discretion as to whether to allow a party to re-open its case and
lead further evidence. The grounds on which the court may take this course are:
(a) that the evidence tendered could not have been obtained with reasonable
diligence for use at the trial; (b) the evidence must be such as is presumably to be
believed or apparently credible; (c) that the evidence would, as far as can be
foreseen, form a determining factor on the result; and (d) conditions since the trial
must not have so changed that the fresh evidence will prejudice the opposite
party.”

17 JUDGMENT

There are basically two types of judgment for plaintiff or defendant or it can be
absolution from the instance.

17.1 Absolution from the instance.

It can be granted in two different circumstances

(i) under R437(1) – it can be granted at the close of the plaintiff’s case were the
defendant applies for it.
(ii) it can be granted at the conclusion of the trial and the court is of the view that the
evidence presented does not justify giving judgment in favour or either party. The
plaintiff not succeeded in establishing his fact neither has the defendant succeeded
in his defence.

In the case of Supreme Service Station(1969) Pvt Ltd v Fox and Goodridge 1971
(1) RLR 1 The appellant who was the applicant sued the responded in the
magistrates court for the costs of work and labour done and materials supplied in
repairing a motor-car. At the close of the plaintiff’s case which defendant
successfully applied for absolution from instance. The plaintiff appealed against
the decision. It was common cause that the car did not belong to the defendant’s
company but to Fox personally. Fox had signed a form applying for credit in
which he bound the company as co-principal debtor. The account remained
unpaid for several months and the managing director of the plaintiff thought it
desirable to obtain the signature of Goodridge who was Fox’s director and then
applied for credit. Goldridge refused to sign the form alleging that Fox had no
authority to sign the form alleging that Fox had no authority to bind the credit of
the company and also that the care was Fox’s personal car. Invoices for the work

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performed were put in as exhibits at the trial and customer’s name was given as
Fox and Goodridge (Pvt) Ltd. In deciding the application for absolution from the
instance to magistrate came to the conclusion that no reasonable court could give
judgement for the plaintiff and that is why he granted absolution from the
instance.
On Appeal
Held: The magistrate erred in failing to distinguish application for absolution
from instance at the close of the plaintiff’s case and application for absolution at
the conclusion of the trial. The test given by the court:

(i) where the is an application for absolution at the end of plaintiff’s case the
rest to be adopted in deciding to grant on granting absolution is whether or
not a reasonable court might grant judgment for the plaintiff. The court
may take into account that a reasonable court might make a reasonable
mistake of fact. The court must also take into account that the defendant
had not given evidence to refute the plaintiff’s evidence and if the defence
is something perculiarly within the knowledge of the defendant and the
plaintiff has made out some case to answer the defendant must not be
allowed to cause an injustice by seeking absolution from the instance. In
other words the plaintiff must not be lightly deprived of his remedy
without first hearing the defendant.

(ii) Absolution from instance at end of trial” the test is whether the court
could or ought to grant judgement in favour of the plaintiff.
Conclusion
There were facts indicating that Fox had authority to bind the defendant’s company the
facts which a reasonable court might grant judgment for the plaintiff. The appeal was
allowed for that reason.

If a party does not show up for trial the court will grant default judgment.

17.2 Correction and alteration of judgment r449

Munyimi v Tauro S-41-13

(Garwe JA, Chidyausiku CJ & Omerjee AJA concurring)

(Judgment delivered 26 September 2013)

It is a general principle of our law that once a final order is made, correctly
reflecting the true intention of the court, that order cannot be altered by that court.
Rule 449 of the High Court Rules 1971 is an exception to that principle and
allows a court to revisit a decision it has previously made but only in a restricted
sense. Where a court is empowered to revisit its previous decision, it is not,
generally speaking, confined to the record of the proceedings in deciding whether
a judgment was erroneously granted. The specific reference in r 449 to a judgment

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or order granted “in the absence of any party affected thereby” envisages a
situation where such a party may be able to place facts before the latter court,
which facts would not have been before the court that granted the order in the first
place. Once a court holds that a judgment or order was erroneously granted in the
absence of a party affected, it may correct, rescind or vary such judgment or order
without further inquiry. There is no requirement that an applicant seeking relief
under r 449 must show “good cause”. A distinction should be drawn between a
case where a court mero motu decides to rescind or vary an order and one where
such an order is sought on the basis of an application. In the former case, or where
an oral application is made from the bar, the error should appear on the record. In
the latter, where a written application is made by a party whose rights are affected
by an order granted in its absence, the court would have before it not only the
record of the proceedings but also facts set out in the affidavits filed of record.
Such facts cannot simply be ignored and it is not irregular to adopt such a
procedure in seeking rescission. In fact, it might be necessary to do so in cases
where no error could be picked up ex facie the record itself. As to what constitutes
an “error”, such an error would exist where the judge was unaware of facts which,
if he had been aware of them, would have made it highly unlikely that he would
have found it permissible or competent to make an order against a party.
Examples include (a) a default judgment being granted against an applicant who
had filed an appearance to defend court but which appearance had not been
brought to the attention of the judge; and (b) a false return of service being filed
by the Deputy Sheriff indicating that service had been effected personally, when
in fact no such service had been effected.

18 BARRING 012

When does a party become barred? - O7 R150

 If a defendant fails to enter appearance to defend is automatically barred.

 O12 R80 – this is where a party has failed to file his declaration, plea, request for
further particulars, replication or other response to plea. The bar is not automatic but
give a notice of intention to bar Form NO. 9. In the notice you call upon the party to
file their pleadings or other response within 5 days of the date of service of the notice
failing which they will be barred. This applied even when they want to accept.

City of Harare v Minister of Local Government Rural and Urban Development v

V & P Investment (Pvt) Ltd & Deputy William Aitken SC 195/92.

On the 6th of February 1990 the defendant were served with a request for further
particulars to be plaintiff’s declaration. The particulars were provided on the 12
March 1990, on 3 April 1990 and 10 May 1990 respectively. The defendants
filed identical exceptions to the plaintiff’s declaration. The first defendant’s
exception was set down for hearing on 23 June 1990. The second exception was
not set down for hearing because the determination of the first defendant’s
exception would dispose of the matter. The issue was then raised at the hearing

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that the exception was filed out of time and it was the response form counsel that
an exception is not a pleading under the rules and was not subject to the procedure
for barring. The matter was taken on appeal and the appeal court said an
exception is a pleading and subject to the barring procedure.

 Once a party receives a notice of intention to bar he should respond by filing the
required pleadings. If they do not respond then proceed to bar them by filing a copy
of notice of intention to bar with the registrar and the copy will be endorsed as
required by form No. 9.

 The effect of the bar – R83 gives the effect when a party is barred the registrar wold
not accept for filing any pleading or other document from that party. That party shall
not be permitted to appear personally or by a legal practitioner within the subsequent
proceedings in the action or suit. The only exception is when they file pleadings for
purposes of applying for the removal of the bar.

18.1 Removal of the Bar

It can be done by consent. Form No. 10 is used to file a notice of removal of bar. If the
other party refuses to consent make an application for removal of bar R84. The
application can be made either as a chamber application or as an oral application at the
hearing of the action or suit involved (R84).

Garwe JA states as follows in Grain Marketing Board v Muchero 2008 (1) ZLR (S)
commenting on the new R84;

“it is clear…that, once a party is barred, the matter is treated as unopposed unless
the party so barred makes an application before the court for the upliftment of the
bar. It is also clear that, in making the application to uplift the bar, the party that
has been barred can either file a chamber (not court) application to uplift the bar
or, where that has not been done, the party can make an oral application at the
hearing. The practice of the High Court,….is that only un very few instances have
oral applications to uplift the bar been entertained by the court. this is because, in
such a case, the applicant must explain the reason for the delay, and thereafter
convince the court that he has a bona fide defence on the merits”

William Bain & Co Hldgs (Pvt) Ltd v Chikwanda HH-290-13

Mafusire J

An application for the uplifting of the automatic bar in default of appearance to

defend is made in terms of r 84 of the High Court Rules 1971. The rule does not
set out any guidelines or parameters on how the judge’s or court’s discretion
might be exercised. However, an applicant for the removal of the bar has to show
good and sufficient grounds for the bar to be uplifted. Not only must there be a
reasonable explanation for the default, but also the applicant must show that he

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has a bona fide defence on the merits. What constitutes wilful default and a bona
fide defence depends on the merits of each case. Wilful default can be said to
occur when a party freely takes a decision to refrain from appearing with full
knowledge of the service or set down of the matter. It is akin to a waiver by the
party of his rights. In practice, wilful default is seldom clear-cut. In most cases, it
is a question of the degree of negligence by the defaulting party that the court is
called upon to weigh and to determine whether or not that negligence amounts to
wilful default. In coming to a conclusion, there is a certain weighing of the
balance between the extent of the negligence and the merits of the defence

Standard Bank of SA Ltd v Kircos 1957 R & N 144.

The application for the removal of a bar for failure to file a plea timeously was
supported by an affidavit by the applicant’s attorney. Much of the affidavit was
mere opinion on the merits of the applicant’s case. It was held that in the absence
of special circumstances, it is the client himself who should make the affidavit
because it is he or she who knows the facts upon which the case is founded.
When the time came it will be for him or applicant to establish her claim.
Postponement will be granted to allow the applicant to file a proper affidavit.

What is it that the applicant must establish to succeed in having bar removed?

Petras v Petra SC 71/91

The plaintiff brought an action for divorce against the defendant. The defendant
entered appearance to defend but failed to file his plea and counter-claim
timeously. The defendant was barred. The defendant applied for removal of the
bar (uplifting of the bar). The application was dismissed by the High Court on the
ground that there was no reasonable explanation of the failure to file the plea
timeously and the proposed defence had no merits. The defendant appealed to the
SC.

Held: An application for removal of the bar must satisfy the following
requirements:
(i) the applicant must give good reasons for the default;
(ii) the applicant must set out facts on which he relies on for the defence so
that the court can form an opinion from the merits and bona fide of the
defence.
The SC concluded that the applicant’s default was intentional or at least reckless.
The defence had no merits. The appeal was dismissed with costs.

79. Wilful default and a bona fide defence

What constitutes willful default and a bona fide defence depends on the merits of
each case. In Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 (S),
the Supreme Court, in the judgment by McNally JA, held that willful default

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occurred when a party freely takes a decision to refrain from appearing with full
knowledge of the service or set down of the matter.
It should be stressed out that the concept of willful default may be quite easy to
define on paper but somewhat difficult to identify in practice. It is seldom clear
cut. In most questions it is a degree of negligence by the defaulting party that the
court is called upon to weigh and to determine whether or not that negligence
amounts to willful default in any given case.
In the Zimbank case the learned judge of appeal put it as follows;

“The willfulness of a default is seldom, if ever clear-cut. There is almost

always an element of negligence, and the question arises whether it was
gross negligence and whether it was so gross as to amount to willfulness.
And in coming to a conclusion there is a certain weighing of the balance
between the extent of the negligence and the merits of the defence.”

N.B Prior to 2000 it was only a defendant who could be barred but now both can be
barred.

7/05/04

19 FURTHER PARTICULARS – O21 R137(1)(d)

Further particulars can be requested for two different reasons:

1. to enable the party requesting particulars to plead;

2. particulars can be requested for the purpose of preparing for trial.
3. It can be requested by either party.

For the purposes of pleading

IMF Management Services (Pvt) Ltd v Sicom Spa (Zimbabwe) Ltd 1991 91) ZLR
509 (SC)

The respondent instituted an action against the appellant with the service of a
specially endorsed summons. After giving the appellant several reminders that its
plea was overdue, the respondent delivered a notice of intention to bar. Only then
did the appellant react with the filing of a plea and claim in reconvention. The
respondent served a request for further particulars to the claim in reconvention.
There was no reply to the request prompting the respondent to give a notice of
intention to bar in respect of the failure to furnish further particulars. This threat
did not evoke a response and so a copy of the notice was filed with the Registrar
of the High Court. Three weeks later the appellant queried with the respondent the
validity of the bar, and wrote informing the Registrar that it was now in a position
to provide further particulars and that in its opinion the notice of intention to bar,
and the subsequent bar, were invalid. As this contention was strenuously resisted

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by the respondent, the appellant instituted notice of motion proceedings, seeking a

declaratur in its favour, failing which an order uplifting the bar.

Held- A pleading is a document which contains distinct averments or

denials of averments. Further particulars when filed, form part of
pleadings in respect of which they are provided but neither the particulars
themselves nor the request thereof constitute a pleading in their own right.
A party faced with failure by its opponent to respond to a request of
further particulars does not have available to it the procedure of barring
the defaulted party but must move the court for an order to compel
delivery of particulars.

80. What is the degree of particularity?

Zimbabwe Online (Pvt) Ltd v Telecontract (Pvt) Ltd HH-206-12

(Mutema J)

The function of particulars, required to enable a party to plead to his opponent’s

pleading, is to provide a more precise, albeit fuller, statement of the issues which
will arise on the trial. The supply of such particulars will of necessity, limit the
generality of the allegations in the pleadings and will prevent the party so
supplied from being taken by surprise at the trial. Where another party’s claim or
defence is not sufficiently clear, a party may request further particulars of the
claim which will enable him to plead. Particulars are intended to define the issues
and prevent a party from being taken by surprise at the trial. Only those
particulars which are strictly necessary will be supplied and not where disclosure
of evidence is sought, or where the request is fishing expedition or to gain time or
to assemble material for cross-examination or where particulars relate to a
statement of law. There is a tendency on the part of practitioners to abuse the
further particulars procedure by making unnecessary and unduly lengthy requests
for information before pleading, thereby clouding the real issues between the
parties. The particulars to which a litigant is entitled are particulars of matters in
respect of which the onus is on the opponent.

Citizen Pvt Ltd v Art Printing Work 1957 (3) SA 383

There was no application for an order compelling the plaintiff to supply further and better
particulars. These are requested when the party is unsatisfied with the particulars. The
plaintiff’s claim was for printing work done and paper stationery and printer supplies sold
to the defendant. Details of each invoice for the amount charged were annexed to the
declaration. The defendant requested further particulars and was supplied with particulars
which were denied. The particulars sought were detailed information on how the plaintiff
have arrived at its charges. For example on 42% to cover overheads and the defendant
wanted to know the following in respect of its charge:

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(i) wanted to know how much was allowed for the cost of
(a) salaries, description and number of employees
(b) other office expenses stating what they are]
(c) how much was allowed for advertising stating how much and what proportions of
the total advertisement expenses is desired for printing overheads.
(d) How much was allowed for depreciation other than depreciation of printing
machine and state what is meant by depreciation and how it is calculated.
(e) What was meant by overhead rent and how it differed from other rent
(f) The defendant wanted to know the details of the interest claimed
(g) Details of the bank charges.

Held: “It should be remembered that it is a fundamental principle of all pleadings that
the statement of material facts should be in summary form. Even where the pleading is
not defective by reason of the omission of any material fact the court will order
particulars if it considers that as a matter of fairness they should be given. The procedure
however was not designed to enable one party to ferry out inquisitorial forays upon his
adversary; nor should it be regarded as a challenge to the suttle and overcurious … I
have studied the present request, its complexities and magnitude will not fail to impress
the most reasonable litigant. I am satisfied that the applicant should not as a matter of
fairness be given the information for which he asks.” P386.

Application was dismissed with costs.

Time Security Pvt Ltd v Castle Hotel Pvt Ltd 1972 (3) SA 112

The plaintiff sued the defendant in the magistrates court for payment of $85,63 being an
amount allegedly due by the defendant to the plaintiff for services rendered. The services
were, providing a security guard for the defendant’s premises. The defendant pleaded to
the summons as follows: the defendant states that it was quire entitled to terminate the
contract because the security guard supplied was not carrying out his duties properly and
not providing real security at all. The plaintiff requested further particulars to the
defendant’s plea
(a) the plaintiff wanted full details of the alleged failure by the security guard to carry
out his duties properly;
(b) the plaintiff wanted details of what was meant by the allegation that the security
guard was not providing any real security.
The defendant refused to furnish the particulars on the ground that they were not
necessary to enable the plaintiff to plead. The plaintiff applied to the magistrate court for
an order compelling the defendant to supply them. The application was dismissed and he
appealed to Appellate Division. The SC started to define what is meant by ability to
plead or prepare for trial.

Held: Ability to plead or prepare for trial means the ability properly to plead or prepare
for trial. A litigant is not to be put in the position either of pleading in the dark or
preparing for trial in the dark. No hard and fast rule can be laid down regarding the
particularity required. Each case must be judged on its own merits.

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Held: On the issue of purposes of pleading “a litigant must not be put in the embarrassing
position of being forced to resort to bare denial by the lack of particularity. A denial
which in the light of the particulars supplied at a later stage he might well be obliged to
withdraw or qualify. He should be in the position honestly to deal with the matter and
either to admit or deny an allegation in the light of particulars furnished” pg. 114.

Held: Plaintiff was entitled to the particulars sought because the plaintiff being a
company could not be expected to supervise all its employees. It was incumbent upon
the defendant to inform the plaintiff of any failure to perform his duties by the security
guard. The plaintiff also needed to know in what ways the guard was not performing his
duties e.g did he not report on duty at all or did he report for duty and then fail to perform
the duties.
Appeal was allowed with costs.

Trinity Engineering (Pvt) Ltd v CBZ 1999 (2) ZLR 417

The respondent issued summons claiming various payments from the applicant. The
applicant made various requests for further particulars which it claimed were necessary to
enable it to plead to the summons. The applicant’s first request was when it entered
appearance to defend and the respondent complied. This was followed by a request for
further and better particulars and the defendant complied although it had to amend the
amount in question. The applicant filed yet another request for further and better
particulars as the third request and the respondent filed the further and better particulars
requested. On 2 March 1997, the applicant filed an application compelling the respondent
to comply with its first request. The application was dismissed with costs on the basis that
the respondent had filed the particulars requested. This particular application, was then
filed, seeking an order that the respondent comply with the third request.

Held- A defendant is entitled to request and be supplied with particulars when the
plaintiff’s declaration is lacking uncertainty and particularity. The facts which the
plaintiff may be required to state are facts which fill in the picture of the plaintiff’s cause
of action. A defendant is not entitled to request further particulars for the purpose of
enabling him to ascertain whether he has a defence or to formulate such a defence.
Applications for particulars should not amount to a series of interrogatories to the other
party.

Their functions (that is the request for further particulars) is to fill in the picture of the
plaintiff’s cause of action with information sufficiently detailed to put the defendant on
his guard on what he is to meet and to enable him to prepare for trial.”

Carlo Franchi vs Dixon A. Mohammed HB-17-05

“When asking for further particulars, the applicant is required to show that without such
requested particulars he will be embarrassed in attempting to plead and that he must make
plain to the court the precise embarrassment which he alleges he will suffer

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Zimbabwe Online (Pvt) Ltd vs Telecontact (Pvt) Ltd 2012 (1) ZLR 197 (H)

MUTEMA J

“Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd
ed at page 310 state that the function of the particulars required to enable a party to plead
to his opponents pleading is to provide a more precise albeit fuller, statement of the issues
which will arise in the trial. The supply of such particulars will, of necessity, limit the
generality of the allegations in the pleadings and will prevent the party so supplied from
being taken by surprise at the trial. … Mary Welsh, Civil Practice Handbook (1996) at
pp 8 – 10 says that where another party’s claim or defence is not sufficiently clear, a
party may request further particulars of the claim which will enable him to plead.
Particulars are intended to define the issues and prevent a party from being taken by
surprise at the trial. Only those particulars which are strictly necessary will be supplied
and not where disclosure of evidence is sought, or where the request is a fishing
expedition or to gain time or to assemble material for cross-examination or where
particulars relate to a statement of law. …. In Purdon vs Muller 1961 (2) SA 21 (A)
OGILVIE-THOMPSON JA, dealing with the detailed further particulars which had been
requested therein, cautioned against the tendency on the part of practitioners to abuse the
further particulars procedure by making unnecessary and unduly lengthy requests for
information before pleading, thereby clouding the real issues between the parties.”

19.1 Procedure (Form No.12) R137 (2)

Once there is a request for further particulars one must respond within the time limit and
thereafter the time for filing the next pleadings will be calculated according to R142(a)
whether the particulars are supplied voluntarily or an order to supply file within 12 days
form the day of compel of supply.

If the party refuse to comply the defendant should file their plea within 12 days of date of
refusal R142 (b).

If there is refusal and an application is made to compel the time is calculated from the
date the court refused to grant rant the application R142(c).
Request for further and better particulars if the particulars supplied are insufficient
(Citizen (Pvt) Ltd) R141(b) gives the court power to furnish further particulars.

R143 – further particulars for the purpose of trial. Form No. 13 is used.

20 APPLICATION TO STRIKE OUT

Order 21 r 137 (1) (c) provides that a party may apply to strike out any paragraphs of a
pleading that should properly be struck out. Rule 140 provides that-

(1) Before-

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(a) Making a court application to strike out any portion of a pleading on any
grounds; or
(b) Filing any exception to a pleading;
the party complaining of any pleading may state by letter to the other party the
nature of his complaint and call upon the orher party to amend his pleading so
as to remove the cause of complaint.

Form
Rule 137 (2) provides that application to strike out shall be in Form 12. This is the form
for an exception.

In his 3rd edition of Beck on Pleadings in Civil Actions, the position regarding
applications to strike out is as follows;

“Exceptions and motions to strike out are alike in this; that neither does nor can
introduce any fresh matter.”

Therefore, in an application to strike out, the pleadings have to be interpreted as they

stand without taking into consideration any matter outside the pleadings.

Gloria Nyaradzo Nyahuma v Corporate Twenty Four Hospital Group (Private) Limited
and Anor HH483-15

Alleging professional negligence, the plaintiff sued the defendants for damages for shock,
pain and suffering in the sum of $120 000-00, future expenses $10 000, medical expenses
of $4 252-83, transport and communication costs of $101-202 and costs of suit.

MATHONSI J: While it is true that r140(1) is a directory provision, a practice has

evolved in this jurisdiction for legal practitioners to first dispatch a letter of complaint to
the other legal practitioner calling upon him to remove the source of complaint and
putting him on terms to do so, before filing an exception. Professional etiquette therefore
demands that it be done and r140 (1) lays the foundation for such conduct to be adhered
to. This is particularly so bearing in mind that in the majority of cases, an exception does
not dispose of the matter but would, if upheld, invariably result in the offending pleader
being given an opportunity to amend the offending pleading to bring it in line with the
attendant order for costs of course.

The above shows the trend that has developed as a result of practice regarding
applications to strike out as well as exceptions.

21 OFFERS AND TENDERS IN SETTLEMENT – 022

Basically in terms of R144 a party to proceedings may make a written offer to settle
either in whole or in part at any time within the course of the proceedings R144(1) . The
offer can be made without prejudice – without admitting liability R144(3).

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R144(4) specifies the content of the offer. The offer must be signed by the person
making it or by his or her legal practitioner. The offer must also set out all the terms and
conditions on which it is given. The offer must also indicate that it is made in terms of
R144.

Once a written offer is made you must given notice of the offer to the party whom you
are giving the offer. R146(1) – the notice must state whether the offer is being made
without prejudice and it must also state whether the offer is being made in respect of both
the claim and costs or being made in respect of the claim only. Also state whether the
offer is accompanied by an offer to pay all or part of the costs and therefore any
conditions subject to which the costs will be paid. The same rule also apply in the case of
a tender.

A tender is a tender in performance of a specific act R145 (1). The performance can
either be in whole or in part R145(1). R145 (3) you can also make it without prejudice.
The details required are the same as in the offer i.e signed by the parties, LP R145(4).

Once an offer or tender has been made the person to whom it is made has a period of 15
days to accept it or reject. If accepting they do so by filing a written notice with the
Registrar indicating that they are accepting R146(1) and must be served on the person
made the offer or tender and proof of service must be filed with the Registrar R147 (3).
Once the 15 day period has expired the tender or offer can no longer be accepted unless
the offeror or person who makes tender gives consent or the court on application orders
that it may be accepted R147(2).

Where the offer or tender does not include costs the person who accepts the offer or
tender may make a court application to pursue the costs R147(5).

If there is an offer or tender made without prejudice the fact should not be disclosed to
the court before judgement R149(a) Par (b) required the Registrar to remove any
references to the offer or tender from the file. After judgement the fact can be disclosed.
The fact is considered for the purposes of costs. If the plaintiff unreasonably rejected the
tender or offer in settlement even if they succeed they will be penalised in costs. If don’t
succeed they can be penalised on paying the costs on a higher scale R150(1).

R150(2) allows the court to reconsider the question of costs if it had made a decision on
the issue without being aware that there was an offer or tender in settlement. This
reconsideration is made on application by any party to the proceedings within 5 days of
the decision on the issue of costs.

22 SUMMARY JUDGMENT

It’s a procedure which allows the plaintiff who feels that the defendant has entered
appearance to defend to delay proceedings (no bona fide defence) to apply to court for
judgment.

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Chrismar Pvt Ltd v Stutchbury & Anor 1973 (1) RLR 277.

There was an application for summary judgement. The Plaintiff’s claim was for
accelerated performance by reason of an allegedly implied term of the contract of the
defendant partially imperformed obligations as the purchaser under a written deed of sale
o f a general dealer investment business as a going concern. The defendant’s defence that
he had cancelled the contract and had intended to counter-claim for cancellation of
contract and restitution. There was extensive correspondence between the parties
attorney in which the defendant’s defence on counter claim were provided and these were
that a resolutive condition of the agreement was not timeously fulfilled and also that the
plaintiff had failed to deliver the subject of contract of sale (ii) The defendant alleged that
have been induced to enter into contract by material and fraudulent misrepresentation.
The defendant were denying the alleged implied terms on which the plaintiff was relying
on performance. There was application for summary judgement by plaintiff.

Held: The special procedure for summary judgment was conceived so that a malafide
defendant might summarily be denied except under honorous conditions the benefits of
the fundamental principle on audi alteram parten (principle of natural justice to hear both
sides of the case.) So extraordinary or evasion of a basic tenet of natural justice would
not be resorted to likely and it is well established that it is only when all the proposed
defences to the plaintiff’s claim are clearly inarguably both in fact and in law that this
drastic relief will be afforded to the plaintiff pg. 279.

Held: The defendant had raised factual and legal issues which were highly arguable.
The application for summary judgment was ill conceived since the plaintiff was aware of
the proposed defences. Application for summary judgment was dismissed.

22.1 Procedure O10

The application for summary judgment is a court application and can be made at any time
before a pre-trial conference is held. Court application will be supported by affidavit
made by the plaintiff or any other person who an swear positively to the facts and in the
affidavit, the deponent of the affidavit will do he following; verify the cause of action and
the amount claimed if any; state that his order belief there is no bona fide defence to the
actioR64(2).

The deponent to the affidavit may attach documents to the affidavits verifying the cause
of action or support the belief that there is no bona fide defence to the action R6(3) – it is
a restatement of decision in Beresford Land Plan v Urquahart 1975 (1) RLR 263, 1975
(3) SA 619.

Once an application has been made the defendant has several options.
(1) judgment which may be given against him/her in the action R66(3)(a) whatever
security given must satisfy the registrar that it is adequate
(2) to satisfy the court by affidavit or with the leave of court by oral evidence that he
has a good prima facie defence R66(1)(b).

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 Affidavit can also be by defendant or anyone else who can swear positive to the fact –
with personal knowledge of the facts.
 What is meant by good prima facie defence?

(i) a question of law can be a good prima facie defence. Shingadia v Shingadia 1966
RLR 285. The plaintiff claimed summary judgement on an agreement which required
him and another to act jointly in claiming relief. The plaintiff and the other claimant
were brothers and they were also partners in the business. The other claimant who
was supposed to have been joined was deceased at the time. The defendant argued
that the plaintiff should have joined the executor of the estate of the deceased as co-
plaintiff.

Held: Summary judgment should not be granted when any real difficulty as to the
matters of law arises. However the court can still grant summary judgment if satisfied
that the point of law raised by the defendant is really arguable.

Held: The defendant had put forward a triable and arguable issue. The plaintiff sought
to amend the summons to cure the defect but the amendment was refused because it was
not proper to make it at that stage. Application for summary judgment was dismissed
with costs.

Hughes v Lotriet 1985 (2) ZLR 179 (H)

The claim was for $3000 being money lend and advanced to the defendant. The
defendant had pledged certain musical instruments as security for the loan. The
defendant entered appearance to defend and the plaintiff applied for summary judgement.
The defendant raised two defences in opposing summary judgment. (i) he was wrongly
cited as defendant. The money had been lend and advanced to the company named
International Music Enterprises (Pvt) Ltd for which he was a director (ii) the plaintiff was
in breach of a contract entered into with the company and wanted to counter claim and
value of claim was actually $5 300 for recovery of assets.

Held: First defence contradicted the written loan agreement which was annexed to the
plaintiff’s affidavit. Even if it was the company then the defence should not succeed
because if he acted as agent of the company then he had not disclosed his principal and
signed the agreement. The counter claim could not succeed because there will be no
claim can arise from the pledge until the principal obligation has been discharged.
Summary judgement was granted.

Lincoln Shop (Pvt) Ltd v Axis Internationl and Wonder Chizema HH 54/94
An application for summary judgment and claim based on two lease agreements and
plaintiff was seeking arrear rentals totalling $19 288. The second defendant had signed
the leases on behalf of the first defendant and he also bound himself as co-principal
debtor. The plaintiff attached the following documents in support of its application for
summary judgment.

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(i) copy of the lease agreement

(ii) an acknowledgement of debt in respect of part of the arrear rentals
(iii) a letter to the plaintiff by the first defendant managing the premises in which he
indicated willingness to vacate the premises and pay the arrears and sign an
acknowledgement of debt in respect of the arrears. The defendant’s defence was
that the agreement of lease attached was not the one he signed and that he had no
authority to bind the company.

Held: The defendant had not denied liability but was merely raising technicalities (were
missing pages of the lease agreement). The defendant had no bona fide defence and
summary judgment was granted.

Rex v Rhodian Investment Trust (Pvt) 1957 R & N 723 1957 (4) SA 631.
The claim was in the plaintiff’ s summons represented an alleged balance of a loan made
by her in July 1955 to a company named Somerset Holdings (Private) Limited for
repayment of which loan defendant company had bound itself as surety and co-principal
debtor. On the 7th August, when serving on defendant company’s attorneys notice of an
application, for a minor amendment of the summons, plaintiff’s attorneys, in writing,
requested defendant’s attorneys to intimate before 4 p.m the following day failing such
intimation, the letter stated that application for summary judgment would be made. With
the intimation not being made, the plaintiff gave notice of intention to apply for summary
judgment.

Held- In summary proceedings, the merits of a defence are not fully investigated or
debated. The plaintiff need not establish his claim-all he has to aver is a belief that there
is no defence and as pointed out by Herbstein, J, in Wright v McGuinness 1956 (3) SA.
184 (C) at p187, it is not intended that plaintiff should go into details. The defendant in
return has not to establish his defence on the probabilities, all he need allege is facts
disclosing a defence and sufficient, if pleaded and accepted on trial, to establish a
defence.
Good prima facie defence means that the defendant must allege fact which if he can
succeed in establishing them at the trial would entitle him to succeed in his defence.

Wilson v Hoffman & Anor 1974 (1) SA 44

The claim was for goods sold and delivered. The defendant’s defence was that some of
the goods were defective and had to be repaired at an estimated cost of $1 613.30. There
was an argument by plaintiff’s counsel that this estimation was not an averment of fact
and therefore do not entitle the defendant to a defence.

Held: The phraseology urged by the defendant should not be placed under a microscope.
A mere want of particularity in making an averment that discloses the defence sought to
be relied on is an ordinarily fatal to the defendant’s case provided that the facts are there
good if proved to be a good defence.

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Held: The defence have raised a legitimate issue for trial. The facts of the defendant’s
counter-claim was less than the plaintiff’s claim would not make it unacceptable to the
defence to summary judgment.

Rheeder v Spence 1978 (1) SA 1041

The plaintiff claimed $4500 being money lend and advanced to the defendant. The
defendant’s defence was that at the time that he loans were made he and the plaintiff were
having an affair and living together as husband and wife. It was agreed that he would
repay when “he could afford and also when it was convenient to do so. The plaintiff’s
alleged that the condition of repayment was vague and unenforceable and therefore the
defendant had no good prima facie defence had no a good prima facie defence.

Held: The defendant had raised a triable issue that even though the condition was vague
it could be established by evidence at trial.

Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor

HH-64-10

(Makarau JP)

The test to be applied in summary judgment applications is clear and settled. The onus
resting on a defendant resisting summary judgment has been described as amongst the
lightest that the rules of procedure cast on litigants. He does not have to prove his
defence. He must merely allege facts which, if he can succeed in establishing them at the
trial, would entitle him to succeed in his defence. The defence so set up must, however,
be plausible and bona fide. Obviously implied in this test, but oft overlooked by legal
practitioners, is that the defendant must raise a defence. The facts alleged must lead to
and establish a defence that meets the claim squarely. If the facts that he alleges,
fascinating as they may be and which he may very well be able to prove at the trial of the
matter, do not amount to a defence at law, the defendant would not have discharged the
onus on him and summary judgment must be granted. To defend a claim arising out of a
contract of sale, the purchaser must attack either the existence of the agreement itself or
the fact that the goods sold were not delivered to him. If other defences are raised, they
must be raised explicitly. It is not the function of the court to put words into the
defendant’s mouth and thereby establish a possible defence on his behalf when the
defendant fails to do so in his opposing affidavit

Oak Holdings (Pvt) Ltd v Newman Chiadzwa SC 50/86.

The plaintiff sued the defendant for payment of $92 950.00 du under an 1.0.u note signed
on behalf of the defendant by its managing director. The plaintiff applied for summary
judgment. The defendant’s defence was that the i.o.u not signed on behalf of the
defendant by its managing director. The plaintiff applied for summary judgment. The
defendant’s defence was the i.o.u not a question was to the knowledge of both parties and
fictitious document. He said it had been created for the purpose which was later
abandoned. She gave full details of the alleged purpose. The defendant went on to say

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that when the purpose was abandoned it was agreed that the i.o.u note should be
destroyed and that the plaintiff had actually destroyed the document in the presence of the
defendant which he fraudulently presented as i.o.u note. The judge in the HC was of the
view that the defence raised by the defendant was so improbable in the facts that it could
not be good prima facie defence. Summary judgment was granted and appealed to the
SC. The SC disagreed with the approach of the HC on the question of defence and stated
that applications for summary judgment are not decided on a balance of probabilities
however strong. Unless the court is satisfied that the plaintiff’s case is clearly
unanswerable it is not entitled to grant summary judgment. The defendant’s defence was
disclosed in the affidavit “replete with details” (full of details) and “by no means so far
fetched at it can be dismissed out of h and as an obvious fabrication.” Appeal was
allowed with costs.

R67 limits the evidence that can be presented at the hearing of the application of
summary judgment. The plaintiff is restricted to the affidavit which would have been
made in support of the application and neither party may cross examine any party who
gives evidence wither orally or by affidavit. However there are an exception in a proviso
to R67. These are:

(h) the court may permit evidence to be led in respect of any reduction to the
plaintiff’s claim R67(a).
(i) The court may ask questions of any person who gives oral evidence for the
purpose of elucidating or clarifying what the defence is or for the purpose of
determining whether that the time the application was instituted the plaintiff was
or should have been aware of the defence R67(b).
(j) The court may also permit the plaintiff to supplement his affidavit to deal with
either or both of two specific issues.

(a) any matter raised by the defendant which the plaintiff could not reasonably be
expected to have dealt within his first affidavit – where plaintiff was taken by
surprise.

Jena v Nechipote 1986 (1) ZLR 29(SC)

Gubbay JA, remarked as follows:

“All that a defendant has to establish in order to succeed in having an application for
summary judgment dismissed is that ‘there is a mere possibility of his successes; ‘he has
a plausible case’; ‘there is a friable issue’; or, ‘there is a reasonable possibility that an
injustice may be done if summary judgement is granted”.

Shingadia v Shingadia, 1966 RLR 285

The plaintiff claimed summary judgment on an agreement which required him and
another to act jointly in claiming relief. Plaintiff had not so joined this party. Defendant
opposed the claim on the ground that the agreement precluded plaintiff from suing alone.

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The court held as follows:

“Accordingly, summary judgment should not be granted when any real difficulty as to
matter of law arises, but it has been held that, however difficult the point of law is
satisfied that it is really unarguable, judgment will be granted”

The application was dismissed.

CABS v Magodo (HC 10619/13)

The applicant brought an action for summary judgment in terms of rule 64. It was their
argument that the defendant has no plausible defence.

HELD: A court will grant summary judgment only in a case where the applicant has
shown that the respondent has no arguable case or in other words, a genuine dispute
regarding any material fact and that it is entitled to judgment at law. Where the evidence
available does not support the absence of a genuine dispute regarding any material issues,
summary judgment may be declined

Kingstons Ltd v D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (5)

“In summary judgment proceedings, not every defence raised by a defendant will succeed
in defeating a plaintiff’s claim. What the defendant must do is to raise a bona fide
defence, or a plausible case, with sufficient clarity and completeness to enable the court
to determine whether the affidavit discloses a bona fide defence. The defendant must
allege facts, which if established, would enable him to succeed. If the defence is averred
in a manner which appears in all circumstances needlessly bald, vague or sketchy that
will constitute material for the court to consider in relation to the requirement of bona
fides. The defendant must take the court into his confidence and provide sufficient
information to enable the court to assess his defence. He must not content himself with
vague generalities and conclusory allegations not substantiated by solid facts. … The
proviso to R 67 of the High Court Rules 1971 is therefore to be restrictively interpreted.”
The restrictive interpretation is meant to prevent a plaintiff in summary proceedings to
dispense with the provisions of the main rule itself which bars him from adducing
evidence except through his original affidavit. The real purpose of the proviso is not to
enable a plaintiff to proffer a reply to respondent’s affidavit otherwise, summary
judgment proceedings would degenerate into a court application.

Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H)

MAKONI J stated that:

“The law of summary judgment is settled in our jurisdiction. It is a drastic remedy in

which the plaintiff, whose belief is that the defence is not bona fide and entered solely for
dilatory purposes, should be granted immediate relief without the expense and delay of a
trial. It has far reaching consequences, as it effectively denies the defendant the benefits

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of the fundamental principle of the audi alteram partem rule. It can only be granted to the
plaintiff when all proposed defences to the claim are clearly unarguable, both in fact and
in law. The defendant does not have to establish his defence on the probabilities. All he
needs to do is to allege facts, which disclose a defence. These facts, if pleaded and
accepted at the trial, must be sufficient to establish a defence.”

Nedlaw Investments & Trust Corp Ltd v Zimbabwe Development Bank S-5-00.

What the authorities state quite simply is that relief by way of summary judgment is of an
unusual kind that is meant to grant a plaintiff with an apparent clear right a speedy means
of relief against a delaying or recalcitrant debtor. The court therefore has a discretion
whether or not it will enter summary judgment. That is a stringent power whose exercise
must be watched, strictly in order to see that the plaintiff has brought himself to within
the scope of the provisions of the rule. However, this does not mean that every
unsubstantial technicality raised by the defendant must be given effect. Rather, the
proper approach is that care must be taken to see that the plaintiff has, in accordance with
the terms of the rule made out a cause of action to which the defendant can have no
possible defence.

See Lincoln Shop (Pvt) Ltd v Axis Internatinal HH 54/94

MWP Enterprises (Pvt) Ltd v V.A.M Machado (Pvt) Ltd HH 139/93

The plaintiffs were allowed to file supplementary affidavit.

 R70 the court may give leave to defend either unconditionally or subject to conditions
i.e the giving of security.
 R73 deals with a situation where there are co-dependants and the court can make a
decision that one defendant is entitled to pay and the other not. In that case the court
will give leave to defend to the defendant entitled to defend and then enter summary
judgement.
 Where the defendant show that has good prima facie defence on part of the claim and
the court cold give leave to defend on that part of the claim.
 R72 – the costs of application of summary judgment if unsuccessful – the court gives
the defendant room to defend and decide who will pay the costs for summary
judgment.
 The general order is costs in the cause means that the decision on who is to pay is
deferred until the matter is finalised. Whoever succeeds will recover the costs of
proceedings to the application for summary judgment.
 The court may reserve the question of costs. The decision as to who is to pay for the
costs of unsuccessful summary. Judgment shall be deferred and reserved by the court
usually where the case is complex or not clear.
 In terms of R72(b) if in the opinion of the court the plaintiff knew that the defendant
relied on a contention which would entitle him to unconditional leave to defend, the
court will order the plaintiff to pay the defendant’s costs on a LP and client costs.

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(Higher scale to penalise somebody) and also order that the action be stayed until the
plaintiff has payed the costs. Interpretation of the provision see:

The court said that the rule contemplates that in appropriate cases the court may order a
stay of action until costs are paid.

Held: there was a no reason to find that the plaintiff attempted to harass the defendant or
had been guilty of approbrious (blameworthy conducts) conducts other than the plaintiff
had sought to gain an advantage over the defendant by compelling him to make sworn
disclosures of his defence.

Held: the plaintiff had merely taken an over-songuire (over optimistic) Application
dismissed with cost on party to party scale.

Plaintiff to pay costs on a party to party scale. R72(b) – applied where the plaintiff knew
that the defendant was relying on over-songuire view of a case.
Rheeder v Spencer (supra)

16 DISMISSAL OF ACTION

It is obviously the reverse of summary judgment. In that case it is the defendant who
alleges that the plaintiff’s claim is of no substance and should be dismissed in a summary
manner. 011.

The defendant can apply for dismissal of plaintiff’s action on the ground that it is
frivolous or vexatious R75(1). The application is a court made by a defendant or by a
person who can swear positive to the statement stating that he believes that the claim is
frivolous or vexatious and stating out reasons for his belief.

R75(3) the deponent of the affidavit may attach to his affidavit documents verifying his
belief that his action is frivolous or vexatious. Thereafter the procedure is the same as for
court applications as an order 32 of the HC Rules.

16.1 What is meant by frivolous or vexatious?

Rawden v Edwards 1968 (2) RLR 212

The procedure was intended to apply actions which were manifestly groundless or
improbable and no decision on the probabilities of the case should be given.

Wood No v Edwards 1968 (2) RLR 212

The plaintiff sued the defendant for wages which he alleged were due to him by the
defendant. The defendant was the trustee of the plaintiff’s insolvent state. The defendant
had employed the plaintiff as a manager of the insolvent estate at a salary of £124/month.
They were shortfalls in the payments made to the defendant totalling £844. The
defendant admitted the claim but sought to set it off by claims due to him by the plaintiff
for monies received and not surrendered to the estate and also tax costs for previous

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proceedings instituted by the defendant against the plaintiff which were unsuccessful.
The defendant admitted receiving the money but denied submitting them to the estate.
He also admitted that he owed the tax costs but argued that it was inequitable to set them
off for earlier claim for wages. The defendant applied for dismissal of plaintiff’s action
as being frivolous or vexatious.

Held: The same principles apply as in summary judgment. The plaintiff had no
possibility of succeeding in is claim because the trustee who was the defendant was
entitled to set off. The plaintiff’s claim was dismissed as being vexatious and the
judgement of absolution from the instance was granted. However the defendant was not
awarded his costs because the court said that he was partly to blame for the
misunderstandings leading to the litigation.

Wright v Banda HH 30/94

The defendant sought dismissal of the plaintiff’s claim for defamation on the ground that
it was frivolous or vexatious. The case involves a report which was prepared by the
defendant which the plaintiff claimed was defamatory of him and had resulted in his
being fired. The defendant was raising a defence of qualified privilege. It was held that
the purpose of the application for dismissal of plaintiff’s claim as frivolous or vexatious
is to provide the defendant an opportunity of terminating the process of litigation without
going through the rigours and costs of trial in a situation where the plaintiff has no
reasonable prospects of success. Pg. 1.

In order to resist the application for dismissal the plaintiff needs to show that he has
raised triable issues and that his case has a possibility of success. He does not have to
demonstrate a certainty or even a likelihood of success at a future trial but only that his
case is not hopeless. Pg 6

R75(1) the defendant may make the application after he has filed his plea.

16.2 Powers of the Court

The court will dismiss the application by the defendant unless it is satisfied that the action
is frivolous or vexatious. When the court dismisses the application then the action
proceeds as if no application for dismissal has been made R79(1).

This power applies whether the plaintiff has given evidence or not even if the plaintiff
does not respond to defendant’s application.

If the court is satisfied that the claim is frivolous or vexatious it may dismiss the action
and enter judgment of absolution from the instance with costs. The use of the work may
indicate discretion.

Where the court is of the opinion that the defendant has no grounds for alleging that the
action was frivolous or vexatious it may order that the defendant pay the plaintiff’s costs
of a legal practitioner and clients scale. R79(3). If there is more than one defendant and
the court is of the view that the action is frivolous or vexatious against one defendant and

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not the other, the court may order that the action be dismissed and judgment of absolution
from the instance entered in respect of the defendant against whom the action is frivolous
or vexatious but the plaintiff would be at liberty to proceed with the action against the
other defendant or defendants . R79(4).

17 AMENDMENT OF PLEADINGS O20

In terms of R132 pleadings may be amended with the consent of all parties or if they fail
to have consent should be an application for amendment. The application can be made to
the court or to a judge at any stage during the proceedings including at the trial.

A plaintiff can amend the pleadings to include a new cause of action which has arisen
after the issue of summons R134(1). If the opinion of the court or judge such amendment
may change the action substantially then the amendment would be refused and the
plaintiff would have to institute a separate action.

Where the court has granted an amendment which introduces a new cause of action the
court shall fix the time for the defendant entrance of appearance to defend and for the
filing of all subsequent pleadings. R134 (2).

The purpose of amendment of pleadings is to ensure that the issues which the parties seek
to be decided at court are brought before the court.

Levenstein v Levenstein 1955 SR 91

When dealing with an opposed application to amend the pleadings the court has a very
wide discretion as emphasized in Shill v Milner 1937 AD 101 at 105.
“The object of pleading is to define the issues, and parties will be kept strictly to their
pleadings where any departure would cause any prejudice or prevent inquiry. But within
those limits the court has wide discretion. For pleadings are made or the court and not
the court for pleadings.

(b) Whether the amendment in respect of its scope or the time at which it is applied
for is likely to prejudice the opposite party or parties. If there is prejudice the
court will look at whether the prejudice can be cured by an appropriate order as to
the postponement and or costs.

Lamb v Beazley NO 1988 (1) ZLR 77

Before trial the plaintiff applied for leave to withdraw his declaration and further
particulars thereto and substitute a new declaration. The defendant opposed the
application. The plaintiff’s original claim was for an order directing the
defendant to render or account of the sale of flu cured tobacco belonging to an
insolvent and costs of suit. The plaintiff was claiming to have been the owner of
half of the tobacco crop that was sold. The defendant requested the particulars of
the alleged ownership. The plaintiff replied that he has paid the insolvent $28 000
fo half the crop which he gave as equivalent to 50 000 kg. The agreement was

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reduced to writing but not signed. The plaintiff had supplied a copy of the
unsigned agreement as part of the further particulars. The defendant’s defence
was that the agreement between the plaintiff and the insolvent was illegal in that it
contravenes section 44(1) of section 36(1) of the Tobacco Marketing and Levy
Act of 1977. The plaintiff amendment sought to allege that the tobacco was not
cured but was either still growing on the farm or had been reaped but not cured.
The plaintiff also sought to withdraw an unsigned written agreement. The
plaintiff proposed amendment would have the effect of removing the illegality of
the transaction between him and the insolvent. There was no explanation as to
why the original declaration had been filed.

Held: Generally an application to amend a pleading will be allowed unless it is

malafide or there is incurable prejudice. However the explanation must be made
timeously and an explanation must be given as to why the allegation was not
made when the pleading was originally drafted.

Held: Amendment sought by the plaintiff would introduce a new cause of action
which will call for a fresh plea from the defendant.

Held: The proposed amendments was designed to destroy one of the defences
raised by the defendant and was therefore prejudicial to the defendant.
The application to amend was dismissed with costs.

DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92.

‘This court has the greatest latitude in granting amendments, and it is very
necessary that it should have. The object of the Court is to do justice between the
parties. It is not a game we are playing, in which, if some mistake is made, the
forfeit is claimed. We are here for the purpose of seeing that we have a true
account of what actually took place, and we are not going to give a decision upon
what we know to be wrong facts. It is presumed that when a defendant pleads to a
declaration he knows what he is doing, and that, when there is a certain allegation
in the declaration, he knows that he ought to deny it, and that, if he does not do so,
he is taken to admit it. But we all know, at the same time, that mistakes are made
in pleadings, and it would be a very grave injustice, if for a slip of the pen, or
error of judgment, or the misreading of a paragraph in pleading by counsel,
litigants were to be mulcted in heavy costs. That would be a gross scandal.
Therefore, the Court will not look to technicalities, but will see what the real
position is between the parties.’

In the case of Lourenco v Raja Dry Cleaners and Steam laundry (Pvt) Ltd 1984
(2) ZLR 15 1(SC) the Supreme Court remarked that

“The main aim and object in allowing an amendment to pleadings is to do justice

to the parties by deciding the real issues between them

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In UDC Ltd v Shamva Gora (Pvt) Ltd 2000(2) ZLR 210H at 216, CHINHENGO J
remarked: ‘The approach of our courts has been to allow amendments to
pleadings quite liberally in order to avoid an exercise that may lead to a wrong
decision and also to ensure that the real issue between the parties may be fairly
tried.”

The respondent sued the applicant for $172 018.82, alleging that sum to be an
overpayment in respect of money owed by it to the applicant in terms of a loan
agreement entered into on 5 December 1991, a copy of which was attached to the
particulars of claim. The respondent alleged that the overpayment arose as a result
of it having paid some money in respect of other accounts it maintained with the
applicant and from the money so paid the applicant had wrongfully appropriated
the sum of $448 533.75 towards a different account. As a result of such wrongful
appropriation, the applicant was overpaid by the sum of $172 018.82. The
respondent’s claim was, in the alternative, based on the allegation that it had paid
the sum of $172 018.82 in the mistaken, but bona fide, excusable or reasonable
belief that the sum was due to the applicant. In the further alternative, the
respondent based its claim on unjust enrichment.

The court may at any stage allow either party to amend his pleading. The court
has to exercise its discretion judicially. The approach of our courts is to allow
amendments quite liberally. This liberality is only affected where the amendment
would cause considerable inconvenience to the court or prejudice to a party, or
where there is no prospect of the point raised in the amendment succeeding or
where the matters in the amendment are vague and embarrassing. There will be no
prejudice if the parties can be placed in the same position as they were when the
pleading was originally filed. If the pleading is clear and concise, the other party
must deal with it as it is. If the other party suggests that the facts stated are false
or cannot be proved, its remedy is to show this at trial.

Hwange Colliery Gasification Company versus Hwange Colliery Company

Limited HH 477/15

“It is important at this stage for due consideration to be given to purposes of

pleadings. It is settled by definition that pleadings should be concise and to the
point. The pleadings must inform the parties of the points and issues between to
enable each to know in advance what case they are faced with. By nature long
winding and argumentative pleadings are not only failing to comply with the rules
of the court but defeat the whole purpose of pleadings. Pleadings must be clear
and to the point. They need only identify the branch of the law under which the
claim or defence to it is made and should not contain evidence.”

Chifamba v Mutasa and Ors HH 16/08

MAKARAU J

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“the purpose of pleadings is not only to inform the other party in concise terms of
precise nature of the claim they have to meet but pleading also serve to identify
the branch of law under which the claim has been brought. Different branches of
the law require different matters to be specifically pleaded in the claim to be
sustainable under that action.”

Trans African Insurance Co v Maluleka 1956 (2) SA 273 AD

The plaintiff sued for herself and on behalf of her 5 minor children for loss of support as
a result of the death of her husband in a collision involving a vehicle insured by the
defendant. The summons did no set out that the defendant was being sued as insurer but
the plaintiff had set out his details in a petition to use i.f.p. (informa pauperis) which
have been served on the defendant. The defendant sought to have the summons struck
out as not in compliance with the rules which would make it impossible for plaintiff to
rescuscitate the claim due to prescription. The plaintiff sought to amend the summons.
The defendant contented that the amendment should not be allowed to defeat the defence
of prescription. He cited some English cases on the point. He alleged that the plaintiff
was now creating a new cause of action.

Held: Assuming that the SA practice was the same as the English one no new cause of
action was being introduced by the amendment. The defendant fully aware of the cause
of action from the petition to sue i.f.p.
The appeal was dismissed with costs.

If an amendment of a pleading amounts to withdrawal of an admission the court will

require an explanation as to how it came to be made and also why it is sought to resile
from it. It must not cause incurable prejudice it must not be malafide.

DD Transport (Pvt) ltd v Abbort 1988 (2) ZLR 92 SV

The plaintiff sued the defendant for payment of $7 650 being the damages
suffered through the negligence of the defendant’s employees when transporting
his boat trailer form Harare to Bulawayo. The plaintiff alleged that the conract
had been concluded with one King who represented the defendant. In his plea the
defendant denied that King had authority to conclude the contract. In his
replication the plaintiff alleged that King held himself out as having authority to
conclude the contract. The defendant in his rejoinder denied the entire transaction
between King and the plaintiff and put the plaintiff to the proof hereof. The
plaintiff LP protested that this amounted to withdrawal of an admission and
applied to have the offending paragraph of the rejoinder struck out. The
defendant applied to amend his plea by withdrawing the admission. An affidavit
from the LP who drafted the plea and rejoinder stated that he (LP) had no
authority to make the admission and had not appreciated the fact that the relevant
paragraph could be construed as an admission. The plaintiff filed a replying
affidavit in which he indicated with supporting copies of correspondence between
the parties that the defendant never had denied the transaction between plaintiff

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and King and the only issue being raised was that authority of King who represent
the defendant. The defendant did not respond to the plaintiff’s affidavit. The
application to strike out was granted and the defendant’s application to amend his
plea was dismissed. The defendant appealed to the SC and the SC said “the court
would not grant withdrawal of an admission without a reasonable explanation of
how it came to be made and why it is sought to resile from it” pg 98. “in addition
the application to amend must not cause incurable prejudice and must not be
malafide.”

Held: Although the court a quo was wrong to disbelieve the affidavit of the Legal
Practitioner the defendant has still not contradicted the evidence that it had
admitted the transaction between the plaintiff and King. Therefore the application
to amend the plea was not bona fide. Appeal was dismissed with costs.

18 APPLICATIONS: 032

Applications can be divided into two categories:

(a) court application – an application in writing to the court on notice to all interested
parties. R226 (1)(a).
(b) chamber application – an application to a judge in writing R226(1)(b).

N.B One can make oral application in certain circumstances R226 (2) provies that the
chamber application is not permissible unless the matter falls within the following
categories
(i) if the matter is urgent and cannot wait to be resolved through a court
application.
(ii) if the rules or any other enactment provides for the use of chamber application
(iii) if the relief sought is procedural or for a provisional order where no interim relief
is sought.
(iv) If the relief sought is for default judgment or for a final order in the following
circumstances.
(a) where the defendant or respondent as the case may be has had previous
notice that the order has been sought and is in default
(b) where there are special circumstances which justify the use of chamber
application (specify the circumstances) In al other circumstances the
application is a court application.

18.1 General Rules Applying to Court and Chamber Applications

 Basically all applications and the opposition of other documents should be legibly
written on A4 size paper and on one side only. R227(1)(a). If it is a long document it
should be divided into paragraphs and the paragraphs should be numbered
consecutively and each paragraph should contain where possible a separate
allegation. R227(1)(b). The whole set of documents for the application must e
numbered consecutively R227(1)(c). Numbering documents consecutively in a page
is called pagenating.

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 Application and notice of opposition should state the title of the matter and a
description of the document. R227 (2)(a) and also shall be signed by the applicant or
the respondent or by his or her LP R227(2)(b). And it should give an address for
service which should be within a 5km radius from the street in which the document is
filed R227(2)(c).
 An affidavit must be made by the applicant or respondent himself or by a person who
can swear positively to the facts. R227(4). An affidavit can also have its documents
verifying the facts stated in attachments as annexures and they are part of the affidavit
in which they are attached R227(4)(b).
 If a party requires an extension of the time within which to respond to the application
they can make a chamber application to the extension and the judge will make an
order as he thinks fit. R229. The respondent may file a counter application
(equivalent to counterclaim) R229(A).
 R229(b) gives the court or judge who is hearing an application the power to permit or
require any person to give oral evidence if its in the interest of justice to hear such
evidence. R229C allows the court to condon the use of incorrect form of application
unless they consider that some interested party has or may be prejudiced by failure to
use the proper form and that such prejudice cannot be remedied either by directions
to the service of the application or an appropriate order of the cost.

The need for certificate of urgency in urgent applications

General Transport and Engineering Pvt Ltd And Others V Zimbabwe Banking
Corporations Limited 1998 (2) ZLR 301

The preferential treatment of allowing a matter to be dealt with urgently is not only
extended if good cause is shown for treating a litigant differently from most litigants.
Where a party brings a chamber application for urgent relief, it is a procedural
requirement that the application be supported by a certificate by a legal practitioner
setting out with reasons the legal practitioner’s belief that the matter is urgent. The reason
behind such a certificate is that the court is only prepared to act urgently in a matter
where the legal practitioner is involved, if the legal practitioner is prepared to give his
assurance that such treatment is required. Before putting his name on such a certificate,
the legal practitioner must apply his mind and judgment to circumstances and reach a
personal view that the matter is urgent. He must support his judgment with reasons. It is
an abuse for a lawyer to put his name his name on the certificate without certainty that
the matter is of an urgent nature.

Gillespie J held- The extension of protection as a matter of urgency is available from this
court as a matter of discretion. “A party who brings proceedings urgently gains a
considerable advantage over persons whose disputes are being dealt with in the normal
course of events. This preferential treatment is only extended where good cause can be
shown for treating one litigant differently from most litigants. For instance if it is not
afforded the eventual relief will be hollow because of the delay in obtaining it.”

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It is a procedural requirement that a chamber application for urgent relief be supported by

a certificate by a legal practitioner “setting out, with reasons, his belief that the matter
is…urgent…

Dismissal for want of prosecution-whether rule applies in chamber applications

Permanent Secretary, Ministry of Higher and Tertiary Education v College Lecturers

Association of Zimbabwe and ors

A chamber application for the registration of arbitral award was filed by the respondents.
After filing an answering affidavit, no steps were taken by them to finalize the matter
despite applicant’s formal reminder. Three months after they filed their answering
affidavits, applicant approached the court seeking the dismissal of the application for the
registration of the arbitral award on the basis that it had not been prosecuted. In resisting,
the respondents argued inter alia that the procedure adopted by the applicant only pertains
to court and not to chamber applications.

Held; that an opposed chamber application is for all intents and purposes, a court
application. It is unthinkable that the drafters of the rules may have intended that an
opposed application would be allowed to be remain pending ad infinitum without any
recourse to the remedy provided for in r 236 (4)(b)

Held further that the remedy provided for in r 236 (4) is available to the applicant even
though the application was commenced as a chamber application

a. Court application

 The form used is form no. 29 and the application must be supported by one or more
affidavits setting out the facts on which the applicant relies (founding affidavit). It
can have supporting affidavits – these are affidavits from people who swear true facts
about facts alleged in the founding affidavit.
 If the application is not to be served on any person the form to be used is form 29B
with the appropriate modificaitons.

FORM 29

The applicants will file with the Registrar and serve a copy on the respondents.
Requirements for service is R231(1). If you do not serve an affidavit then you do not use
it is support of your application unless the court orders otherwise R231(2). Once the
application is served file proof of service with the Registrar (R41) in accordance with the
Rule 231(4).

If the respondent wishes to respond he should file the notice of opposition within a period
of 10 days exclusive of the day of service and one day of every additional 200 km R232.

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If the respondent fails to file the notice of opposition within the time limit he or she shall
be barred. R233(3) if the respondent wishes to respond he files a notice of opposition in
form 29 which is supported by one or more affidavits (Respondent Opposing Affidavit or
Replying Affidavit).

The applicant would have to respond to respondent opposing affidavit by an answering

affidavit. The answering affidavit must be filed at least 10 days before the date of
hearing of the application R234(1).

After answering affidavit nr other affidavits can be filed except with the leave of the
court or judge R235.

Next stage is to set down the application for hearing. Firstly if the respondent has been
barred then the applicant may proceeds to set the matter down without further notice to
him R236(1). If there is an opposing affidavit the normal procedure is to set down the
matter in terms of R223 (general set down for civil cases). Where the respondent has
filed a notice of opposition and opposing affidavit and after one month, the applicant has
neither filed an answering affidavit or set down matter for hearing the respondent has two
options:
(i) R223 the respondent may set the matter down for hearing
(ii) or make the chamber application to dismiss the matter for court of prosecution
R236(3). The same applies where the applicant had filed an answering affidavit
and after a month has not set the matter down for hearing R236(4).

The date of set down can be altered by a party either by application orally or make
chamber application R237. Where the matter is to be set down
the case authorities. R238.

The case of Nehowa v Barep Invstms (Pvt) Ltd HH-357-12 presided by Makoni J
stipulated that in motion proceedings, the parties proceed by way of filing affidavits viz
the founding affidavit, the opposing affidavit and the answering affidavit. These are the
foundation papers in which the parties lay the basis upon which they seek to rely. In
terms of r 235 of the High Court Rules 1971, after the answering affidavit has been filed,
no further affidavits may be filed without leave. Thereafter, if a party is to be represented
by a legal practitioner, it files heads of argument in terms of r 238. The heads of
argument must clearly outline the submissions the practitioner intends to rely on and
setting out the authorities, if any, which he intends to cite. Heads of argument constitute
persuasive argument, making reference to issues and evidence already placed before the
court by the parties at the founding stage. The courts are increasingly coming across
heads of argument which fall short of the definition prescribed in the rules of court. This
issue should be well established and trite, but the courts are increasingly being confronted
with heads of argument where annexures, which should have been part of the pleadings,
are attached to the heads. In some instances new issues in the form of facts, as distinct
from points of law, are raised in heads of argument. Any process filed in violation of the
rules will not take the parties’ case any further. It constitutes deceit on the part of any
party seeking to introduce further pleadings or evidence through the back door. A legal

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practitioner who pursues such a course of action prejudices his client, both by failing to
present evidence before the court at the appropriate stage and by failing to effectively use
the opportunity to present to the court heads of argument which will assist the client in its
cause. Annexures attached to heads of argument and containing evidence will be
disregarded as they are improperly before the court.

Hearing of the application – the order is that the applicant is heard first and the
respondent is heard thereafter responding to applicant’s application and then the applicant
replies but the court may order otherwise R239. The court will then grant the order is
finality. The court may grant the order applied for or it can dismiss the application in its
entirety or grant a variation of the order sought. The court may also grant a provisional
order rather than a final order. R240. The court will then make an appropriate order as to
costs.

Muzurengi V Muchekwa 1992 (1) Zlr 58

The provisions of r 232 c (1) and r 232 c (2) of the high court rules 1971, prescribe how
long in advance of the hearing, the heads of argument of the applicant and the respondent
should be filed must be strictly complied with. Under the rules, the applicant’s heads of
argument must be filed not less than five days before the hearing, excluding Saturdays,
Sundays and public holidays, and the respondent’s heads not less than 3 days before the
hearing excluding Saturday and Sundays and public holidays.

It is imperative that these rules be complied with because advance filing of heads of
argument allows the judge hearing the unopposed matter to study and consider before
hearing the points and authorities raised in the heads. This results in a more meaningful
hearing for concerned. It also signals that opposed matter is likely to proceed on the
appointed date.

The above is why Robinson J gives a stern warning to legal practitioners that if it is the
applicant’s legal practitioner who is out of time, the judge shall have no hesitation in
postponing the matter and if, as is almost invariably the case, it is the personal fault of the
applicant’s legal practitioner for not having prepared and filed and served his or heads of
argument in time, in ordering the applicant’s legal practitioner or firm of legal
practitioners, as the case may be, to pay the respondent’s wasted costs. On the other hand,
if it is the respondent’s legal practitioner who is responsible for not having prepared, filed
and served the respondent’s heads in time, then when postponing the matter and ordering
the respondent’s legal practitioners or firm of legal practitioners, as the case may be, to
pay the applicant’s wasted costs.

Industry Pension Fund v United Refineries Ltd & Ors HH-313-12

(Zimba-Dube J)

(Judgment delivered 31 July 2012)

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The ordinary rule with regard to affidavits is that three sets of affidavits are allowed in
pleadings, namely, supporting affidavits, answering affidavits and replying affidavits.
The court may in its discretion permit the filing of further affidavits in terms of r 235 of
the High Court Rules 1971. It is only in exceptional circumstances or if the court
considers such a course advisable that a fourth set of affidavits may be received. The
purpose of allowing a further or supplementary affidavit is to enable a litigant to file
additional information that he becomes aware of after the filing of the three affidavits as
required in terms of the Rules. There must be an application for leave to file such
affidavit. The party applying for the leave must provide a satisfactory explanation for the
failure to put the information or facts before the court at an earlier stage and for the late
filing of the affidavit. The explanation must be one that negatives bad faith or culpable
failure to act timeously. The court must also be satisfied that no prejudice will be caused
to the opposing party which cannot be remedied by an appropriate order as to costs. If
there is an explanation which negatives mala fides or culpable remissness as the cause of
the facts or information not being put before the court at an earlier stage, the court should
incline towards allowing the affidavits to be filed. Where a party makes an admission in
its pleadings, the admission is binding and it is unnecessary for the other party to prove
such admission. A party wishing to resile from such an admission may amend or
withdraw such pleadings in terms of r 189, which permits a withdrawal of an admission.
Where a party seeks to withdraw an admission he is required to apply to the court for
such a withdrawal. He must give a reasonable explanation of the circumstances under
which the admissions were made and the reasons for the withdrawal. The court in its
discretion may allow such amendment or withdrawal on such terms as it deems fit. If the
court is of the view that to allow the admission to be withdrawn will cause prejudice or
injustice to the other party to the extent that a special order for costs will not compensate
him, it will refuse the application. The court will have to be satisfied that the amendment
sought is a bona fide one. The question must always be posed: “Is the applicant acting
mala fide in seeking to withdraw his admission?”

b. CHAMBER APPLICATION

It should have a draft order. The appropriate form to use is Form 29B. It should be
supported by one or more affidavits unless the application falls within the provisions of
R241(2) where the chamber application is for default judgment in terms of R57 (for a
claim for debt or liquidated demand) and also where the facts are evident from the
records you don’t need an affidavit. If the application is to be served on an appropriate
party use Form No. 29 with appropriate modifications. The chamber application should
be served on all interested parties unless the respondent has had due notice of the order
sought or (applicant is only party to the application) you can’t make it ex parte unless:

R242(1) sets out the circumstances in which the application is made ex parte (i) if the
matter is uncontentious in that the applicant is the only person who can reasonably
expected to be affected by the order sought (ii) if the order sought is either a request for
directions or an order to enforce any provisions of the rule in circumstances where no
other person is likely to object. (iii) where there is a risk of perverse conduct in that any

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other person who would otherwise be entitled to notice of the opposition is likely to act
so as to defeat wholly or partly the purpose of the application prior to an order being
granted or served. (iv) where the matter is so urgent and the risks of irreparable damage
to the applicant is so great so that there is insufficient time to give notice to other parties
entitled to example a parent about to remove a child from jurisdiction. (v) where there is
any other reason acceptable to the judge why notice should not be given to parties
entitled to.

Ex parte applications require utmost good faith. The applicant should not mislead the
court by giving information which is inaccurate. R242(2) requires the applicant to make
exparte application to set out the reasons why he believes the mater should be heard ex
parte. If the applicant is legally represent a certificate from a LP is required which also
sets out the reasons that the matter falls within the provisions of Rule 242(1).

See Vanlear v Begley Bros 1957 R & N 902

ZIMDEF (pvt) Ltd v Minister of Defence and Anor 1985 (1) ZLR 146

The petitioner alleged that in accordance with a joint venture agreement entered to supply
defence materials to the Zimbabwe National Army (ZNA), it negotiated contracts with
the ZNA and on instructions from the second respondent, for a period of eight months
arranged for clearing and delivery of goods supplied to the ZNA. The first respondent
paid most of the money due to the joint venture, and balance outstanding amounting to
$60 466. The petitioner further alleged that it had been paid nothing in terms of the
partnership agreement. Therefore, the petitioner sued for leave for debatement of account
and payment thereof, attachment of the $60 466 and an interdict restraining the first
respondent from making final payment to the second respondent until the dispute has
been resolved.

SMITH J quoting LE ROUX J in Schlesinger v Schlesinger 1979 (4) SA 342 (W): The
utmost good faith must be observed by litigants making ex parte applications in placing
material facts before the court; so much so that if an order has been made upon an ex
parte application and it appears the material facts have been kept back, whether willfully
and mala fide or negligently, which might have influenced the decision of the court
whether to make an order or not, the court has a discretion to set the order aside with
costs on the ground of non-disclosure. It should, however, be noted that the court has a
discretion and is not compelled, even if the non-disclosure was material, to dismiss the
application or set aside the proceedings.

It appears that:

1) in exparte applications all material facts must be disclosed which might influence a
Court in coming to a decision;
2) the non-disclosure or suppression of facts need not be willful or mala fide to incur the
penalty of rescission; and

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3) the Court, apprised of the true facts, has a discretion to set aside the former order or to
preserve it.

A legal practitioner can file heads of arguments in terms of R243.

Set down depends on whether matter is urgent or not if urgent the Registrar will
immediately submit the papers to the judge who will consider the matter R244. However
there is a proviso to R244 that the judge may direct that any interested party be invited to
make representations in such manner and with such time as the judge may direct and the
representations will be on the issue on whether or not the applications should be treated
as urgent. Where the matter is not urgent the registrar will submit it to the judge in the
normal cause of events but without undue delay R245.

The powers of the judge:

 the judge may require the deponent of any other person who may assist in the
resolution of the matter to give evidence under oath or otherwise R246 (1)(a)
 the judge may require either party L.P representatives to appear before him to
present other arguments as the judge may require R246(1)(b). If the applicant is
requesting a provisional order then the judge will grant the provisional order
either in terms of the draft or a variation of that draft if he is satisfied that the
papers filed establish a prima facie case. The provisional order is sometimes
called rule nisi. Before granting a provisional order the judge may require
applicant to give security for any loss or damage which may be caused by the
order 246(3). R247 sets out the contents of the provisional order. Firstly it shall
be in Form 29C it shall specify the parties upon whom the provisional order to be
served together with the application and supporting documents. If the services is
not together to be effected in terms of the rules then the order shall specify how
service is to be effected i.e by advertising in a local newspaper. The order shall
specify the time within which the respondent and other interested shall file notice
of opposition if they oppose to the relief sought. Once the provisional order has
been served the matter will then proceed like a court application.

Specific provisions relating to Deceased Estates and Persons under Disability R248 and
249.

R250 requires that applications involving the performance of any act in a deeds registry
serve a copy of the application on the registrar of deeds. The service should be done at
least 10 days before the date of set down of the application. The purpose of service is to
allows the registrar of deeds to make a report on the matter if he considers it necessary of
if the court requires such a report.

Mutarisi v United Family Intl Church & Anor HH-445-12 (Zhou J)

A chamber application is urgent where it cannot wait to be resolved through a court

application. The urgency may arise where, if the matter is not determined urgently, there
is a risk of irreparable harm to an applicant or there is a risk of perverse conduct on the

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part of the respondent or its agents which would defeat or render hollow any order which
may subsequently be obtained by the applicant in connection with the dispute. The court
must be satisfied that if the matter is not heard urgently substantial injustice would result
to the applicant

81. APPLICATION FOR CONTRIBUTION TOW ARDS COSTS.

 This is a court application where one spouse may obtain contribution towards his or
her costs from the other spouse to enable him or her costs form the other spouse to
enable him or her to institute or defend divorce or other matrimonial proceedings. In
practice it is very rare for a husband to be the applicant.
 The rationale for the application is because of the reciprocal duty to support that the
spouses owe to each other. Criteria for deciding whether or not the applicant should
get contribution. The applicant must establish the following:-

(d) that she does not have the necessary means to find the proceedings
(e) that her spouse is able to make the contribution
(f) that she has a reasonable prospect of success to the claim if she is the plaintiff or
defence if she is the defendant. If the applicant has movable property which she
might reasonably be expected to sell then she will not normally be entitled to the
contribution.
See Landry v Landry 1970 RLR 134

Ansell v Ansell 1980 ZLR 416

The applicant applied by notice of motion to the Court for an order of

maintenance pendente lite at the rate of $200 per month, and for contribution to
her costs of bringing divorce proceedings on the ground of cruelty. The
respondent opposed this application and raised a counter-claim for divorce on the
ground of cruelty.

Held: Where the parties are applying for maintenance pendente lite or a
contribution towards costs, or opposing the same, they should at least produce
documentary evidence of their incomes. A mere assertion of income is
insufficient.
Where an applicant has movable property which she might reasonably be
expected to sell, she will not normally be entitled to a contribution to costs.
The applicant must also show that she has a reasonable prospect of success. If she
is the plaintiff, she must show a prima facie case.

 As to when the court will say she should sell her assets to the court will take into
account the relevant financial position of both spouses and then make a
determination of what is reasonable and just to the circumstances. In the event
that both spouses’ financial position is about equal but one party is possessed of
considerality more assets on the other then it will be inequitable for the court to

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compel the spouse with less assets to exhaust, the modest asset inorder to finance
the litigation.

Chinyamakobvu v Chinyamakobvu HH-181-14

Mawadze J

The requirements for an order for contribution towards costs are: (a) there must be
a subsisting marriage; (b) the suit in action must be a matrimonial one; (c) the
applicant must have reasonable prospects of success; (d) the applicant is not on a
financial position to bring or to defend the action without the contribution from
the other spouse and (e) the other spouse is able to provide the applicant with this
contribution. Items (d) and (e) above should be considered conjunctively: for an
award to be made it should not only be shown that the applicant lacks financial
means to bring or defend an action without assistance from a spouse, but also that
other spouse has the financial means to pay for such contribution

Jones v Jones HB-144-12

(Cheda J)

All costs, unless expressly otherwise enacted, are in the discretion of the judge.
However, that discretion must be judicially exercised. In our law a wife is
entitled to demand a contribution of costs from her husband towards a
matrimonial action. The success of that demand largely depends on the prospects
of success of her claim. The wife must show that she has a reasonable prospect of
success, but it is not necessary for her to convince the court that there is a balance
of probabilities in her favour. Our legal system is geared towards assisting those
who are financially less privileged to access financial assistance in order for them
to prosecute their claims or defend such claims. However, the courts should apply
a strict means test in order to determine some reasonable prospects of success. In
as much as a wife is entitled to be adequately funded by her husband in order to
prosecute her claim, factors like her own financial status should be taken into
consideration. The fact that the husband may be wealthy would not and cannot
entitle the wife to lavish spending or at the worst, destroy her husband’s financial
nest while hers is being cosily built. The applicant is expected to be honest with
the court. Any litigant who chooses to mislead the court by his or her conduct
must reap the fruits of such deceit.

Barras v Barras 1978 RLR 384

In this matter the respondent sued the applicant for a decree of divorce. The applicant
opposed the granting of any such decree and in turn is counter-claiming for a decree of
judicial separation. The trial action proceeded to the stage when pleadings were closed
and the pre-trial conference had been held. The applicant now applied on notice of
motion for maintenance pendente lite and a contribution towards the costs of the trial

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action. She claimed $200 a month as maintenance pendente lite. The respondent tendered
$75 a month. She also claimed $900 as a contribution towards her costs.

Held- In considering an application by the wife for maintenance pendente lite the court
has to make a value judgment based on the income and assets of the respective parties in
an endeavor to arrive at a figure which will enable the wife to maintain a standard of
living reasonably comparable to the standard that she maintained when she lived with her
husband and which figure is within the husband’s means.
The same principles applicable to granting a wife maintenance pendente lite apply to a
contribution towards her costs. It is proper to take into account the relative assets
possessed by both parties arriving at a conclusion where it is apparent that both parties
individually have the necessary funds to pay the costs. The court must look at the means
of both parties and try to determine what is reasonable and just.

a. The Procedure

It is a court application and include supporting affidavits. The court may award such a
sum as it considers necessary to enable her to place her case adequately before the court.
The court may order stay of proceedings until the contribution has been paid. The order
for contribution can be enforced by the usual means for enforcing the judgment for
payment of money. The costs of the application for contribution towards costs are
generally costs in the cause:

82. Application for Maintenance pendente lite

This is where one spouse may apply for an interim order for amendments against another
spouse or herself or himself of the children during the course of divorce or other
matrimonial proceedings and pending the making of a maintenance order for those
proceedings. The applicant is the wife. The basis of the application is the reciprocal duty
of support of spouse and as parents to children.
The basis for the application is the reciprocal duty of support of spouse and as parents to
children.

What does the applicant has to show to succeed?

(i) that she and her children have a right to support. The respondent is legally
obligated to support the children.
(ii) She and the children are not being maintained.
(iii) The respondent is in a position to maintain the applicant and the children. He has
the financial means to support.
(iv) She has reasonable choice of success in the main action.

a. Procedure

It’s a court application supported by affidavits and the list of expenses is to be attached
on your affidavits. This application is combined with application for contribution
towards costs but it does not necessarily mean that if the former is granted the later will

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be granted because one is lumpsum payment and the other is a recurring contributions
(maintenance). Usually the respondent with means will have a recurring obligation.

The applicant and the children are entitled to be maintained at a comparable standard to
the standard they were enjoying while living with the respondent provided it is within the
respondent’s means.
Barras v Barras (supra)

Daines v Daines and Another (1980) ZLR 141

The plaintiff instituted action proceedings against the first defendant for a decree of
divorce on the grounds of his adultery with the second defendant, alternatively on the
grounds of cruelty, for custody of the remaining child of the marriage-the other now
being a major-and for maintenance for herself in the sum of $300 per month. She also
claimed damages against the second respondent in the sum of $4000 for her adultery with
the first defendant.

Unlike maintenance granted to an applicant who is still married to the respondent and
who is entitled to be maintained as his wife, the quantum of maintenance granted to a
wife on divorce need not necessarily be such as to enable her to live at the same standard
as she enjoyed during the marriage; indeed if an ex-wife can support herself adequately
she may be

83. Application for Custody or Access pendente lite

This is where the applicant is applying for an interim order of custody or access of the
minor children pending the final determination of the matrimonial mater. The basis of
the decision is the best interests of the children. The court usually avoids unnecessary
changes of custody meaning that the parent who has defacto custody will remain with the
children until the matter is finalised. The application can be combined with application
for contribution towards costs and maintenance pendente lite.

84. Application for an urgent interdict.

An interdict is an order prohibiting or restraining someone from doing a particular act or

ordering someone to do a positive act to remedy an unlawful state of affairs for which
he/she/it is responsible.

Northern Farming (Pvt) Ltd v Vegra Merchants (Pvt) Ltd & Anor HH-328-

Mafusire J

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The applicant had sold maize to the first respondent on a credit term arrangement. The
first respondent had failed to pay in full, having paid about one third of what was due.
The credit term facility had an arbitration clause. At the time of the hearing the arbitration
proceedings had just been initiated. The applicant alleged that the first respondent was
disposing of the maize to third parties and receiving payment but was refusing or failing
to pay it. The second respondent was one of the third parties. It admitted owing money to
the first respondent in terms of their own contractual arrangements. The applicant sought
what it termed an anti-dissipation interdict to restrain the first respondent from disposing
of the maize held for it by another company pending the determination of its claim by the
arbitrator. The applicant said it feared that if the first respondent was not so restrained
any award in its favour by the arbitrator would be a brutum fulmen because there would
be nothing left to levy execution on, given that the first respondent was indigent.

HELD: (1) An anti-dissipation interdict is just an ordinary interdict to restrain the

disposal of assets. The name of the interdict and its essential content have been the
subject of some debate. It has been variously called a Mareva-type interdict (after the
term used in English law), an interdict in securitatem debiti and an antidissipation
interdict. The interdict prevents the respondent from dealing freely with his assets but
grants the applicant no preferential rights over those assets. In some cases, the interdict is
not sought to prevent the respondent from dissipating his assets, but rather from
preserving them so well that the applicant cannot get his hands on them. The normal
grounds for the grant of an interim interdict must be shown. The purpose of such an
interdict is to prevent the respondent from freely dealing with his own property to which
the applicant lays no claim, because justice may require such restriction in cases where
the respondent is shown to be acting mala fide with the intention of preventing execution
in respect of the applicant’s claim, even though there would not normally be any
justification to compel a respondent to regulate his bona fide expenditure so as to retain
funds in his patrimony for the payment of claims. The purpose of the interdict is not to be
a substitute for the claim but to reinforce it – to render it more effective. And the question
whether the claim is a satisfactory remedy in the absence of an interdict would normally
answer itself. In an application for this type of interdict, one of the major considerations
is whether the respondent would still have sufficient property to satisfy any judgment that
may eventually be given against him and whether the respondent’s continued disposal of
his assets is deliberately intended to frustrate any such judgment. In this case, the
evidence was that, in the face of a demand for payment, and in the face of its claim
having been submitted for arbitration, the respondent was still disposing of the maize but
without remitting anything to the applicant. Not only was arbitration not a remedy to
what the applicant feared, but also that there existed no other satisfactory remedy, the
first respondent having no source other than the maize from which to satisfy its
contractual obligations to the applicant.

(2) Although arbitration proceedings had been instituted, it was permissible, in terms of
article 9 of the First Schedule to the Arbitration Act [Chapter 7:15], for the applicant to
seek an interim measure of protection from the High Court where the arbitral tribunal has
not yet been appointed and the matter is urgent. Such measures include an order for the
preservation, interim custody or sale of any goods which are the subject-matter of the

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dispute, an interdict or other interim remedy and any other order to ensure that any award
which may be made in the arbitral proceedings is not rendered ineffectual.

a. Classification of Interdicts
There are two ways of classifying interdicts
(i) looks at what the interdict require someone to do
(a) prohibitory – the interdict prohibiting the person from doing wrong.
(b) mandatory interdict – interdict which orders someone to act to remedy a
wrongful state of affairs for which he/she is responsible.
(c) Restitutory – interdict which orders the person to restore possession of
property to a person who is unlawfully deprived of his property.

(ii) It is classified on whether the order is temporary or final

(a) a final interdict is order to secure a permanent end to an unlawful state of
affairs;
(b) temporary/interlocutory interdict is an order granted pendente lite inorder
to secure the rights of the applicant pending the outcomeo f either
contemplated or existing litigation.

Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd & Anor S-43-13

(Garwe JA, Malaba DCJ and Ziyambi JA concurring)

Generally, a court should not grant interim relief which is similar to or has the
same effect as the final relief prayed for. Interim relief should be confined to
interim measures necessary to protect any rights that stand to be confirmed or
discharged, as the case may be, on the return date. The practice of seeking interim
relief, which is exactly the same as the substantive relief sued for and which has
the same effect, defeats the whole object of interim protection. In effect, a litigant
who seeks relief in this manner obtains final relief without proving his case,
because interim relief is normally granted on the mere showing of a prima facie
case. Whilst no hard and fast rule can be laid down, there may well be cases
where a court would be justified in holding, in such a situation, that the
application is not urgent and that it should be dealt with as an ordinary court
application. There may also be cases where the court itself, as it is empowered to
do, may amend the relief sought in order to make it clear that what is granted is
interim protection, whilst the final order sought would be the subject of argument
on the return date.

b. Requirements for final interdict

(a) The applicant should establish a clear right clearly established in law
(b) Applicant should show that he has either suffered actual injury or has a reasonable
apprehension of injury.
(c) Applicant should show that there is no other ordinary remedy by which he or she
can be protected in the same way as by an interdict.

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See Setlogelo v Setlogelo 1914 AD 221 at 227

c. Requirements for Interlocutory Interdict

(a) a right which though prima facie established is open to some doubt. (b) and (c)
are the same as in final interdict.
(d) the injury must be irreparable
(e) the balance of inconvenience must favour the applicant

Flame Lily Investment Co (Pvt) Ltd v Zimbabwe Salvage and Anor 1980 ZLR 378

In an application for a temporary interdict pendente lite, the applicant must show;
1) A clear right on his or her part
2) Actual or reasonably apprehended injury
3) No other remedy which he can be protected with the same results
If the applicant’s rights are not clear, the requisites are different. The applicant must
show:
1) A right which, though prima facie established is open to some doubt
2) A well grounded apprehension of irreparable injury; and
3) The absence of an ordinary remedy
In considering the application, the Court will consider the prejudice to the applicant is
withheld, against the prejudice to the respondent if it is granted. This is called the balance
of convenience.

The Flame Lily case effectively creates four requirements for a temporary interdict, the
fourth one being the balance of convenience.

Neptune (Pvt) Ltd Venture Enterprises HH 127/89

N.B Authorities are the same as in final interdict and also Chikore v Nyamukapa & Ors
HH 267/90

Mutarisi v United Family Intl Church & Anor HH-445-12

(Zhou J)

The requirements for an interim or temporary interdict are: (a) That the right
which is the subject matter of the main action and which applicant seeks to protect
by means of interim relief is clear or, if not clear, is prima facie established,
though open to some doubt; (b) That, if the right is only prima facie established,
there is a well-grounded apprehension of irreparable harm to the applicant if the
interim relief is not granted and he ultimately succeeds in establishing his right;
(c) The balance of convenience favours the granting of interim relief; and (d)
That the applicant has no other satisfactory remedy. Where a clear right is
established an applicant for an interim interdict need not show that he will suffer
irreparable harm if the interdict is not granted. The applicant merely has to show

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that an injury has been committed or that there is a reasonable apprehension that
an injury will be committed. The words “clear” and “prima facie” in the context
of interdicts relate to the degree of proof required to establish the right alleged.
Whether or not an applicant has a right is a matter of substantive law; whether
that right is clearly or only prima facie established is a question of evidence. The
court has a general discretion to grant or reject a request for an interdict even in
circumstances where the applicant has established the requirements for interim
relief discussed above. The discretion must, of course, be exercised judicially,
having regard to all the facts and circumstances of the case. While a draft order is
only a draft and does not bind the court, it must be based on the case pleaded. It is
not a mere formality for applicants to file draft orders in application proceedings.
The draft order must properly assist the court as to the relief being sought by an
applicant.

Nyambi & Ors v Min of Local Govt & Anor HH-324-12

Zhou J

The requirements for an interim interdict are well settled, being these: (1) that the
right which is sought to be protected is clear; or (2) (a) if it is not clear, it is prima
facie established, though open to some doubt; and (b) there is a well-grounded
apprehension of irreparable harm if interim relief is not granted and the applicant
ultimately succeeds in establishing his right; (3) that the balance of convenience
favours the granting of interim relief; and (4) the absence of any other
satisfactory remedy. Where a clear right is proved, then the applicant interdict
need not show that he will suffer irreparable harm if the interdict is not granted.
The applicant merely has to show that an injury has been committed or that there
is a reasonable apprehension that an injury will be committed. The words “clear”
and “prima facie” in the context of interdicts relate to the degree of proof required
to establish the right and should strictly not be used or interpreted to qualify
“right” at all. The existence of a right is a matter of substantive law; whether that
right is clearly or only prima facie established is a matter of evidence. The court
has a general and overriding discretion whether to grant or refuse an application
for an interim interdict. That discretion exists even if the applicant has established
all the requisites for the interim relief. The discretion must be exercised judicially,
taking into account the circumstances of the case. Regarding the balance of
convenience, the court is enjoined to weigh the prejudice to the applicant if the
interim interdict is refused against the prejudice to the respondent if it is granted.

For a final interdict in so far as the right is concerned the interdict should not be
granted on application proceedings unless the facts as stated by the defendant
together with the admitted facts in the applicant’s affidavit justify the granting of
such an order.

See Stellenbosch Farmers v Stellenvale Winery 1957 (4) SA 234 – interlocutory

interdict.

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See Webster v Mitchell 1948 (1) SA 1186 WLD

The applicant was seeking an order restraining the respondent from alienating, dealing
with and racing a race horse pending the action to be instituted by him. The applicant
claimed ownership of the horse and the respondent was disputing the claim. The
applicant had allowed the horse to be registered in the name of the first respondent and
later on on the respondent’s wife.

Held: The right to be set out by an applicant for a temporary interdict need to be shown
by a balance of probabilities. If it is prima facie established though open to some doubt
that is enough pg 1189. The proper manner of approach is to take the facts as set out by
the applicant together with any facts set out by the respondent which the applicant cannot
dispute and consider whether having regard to the inherent probabilities the applicant
could on those facts obtain final relief at a trial. The facts set out in contradiction by the
respondent should then be considered. If serious doubt is thrown on the case of the
applicant he could not succeed in obtaining temporary relief for his right prima facie
established may only be open to “some doubt”.

Flamelily Investment (Pvt) Ltd v Zim Salvage and Anor ZLR 378.(in detail)

The applicant sold certain mining claims to the first respondent for $25 000
payable by a deposit of $10 000 and in 3 months instalments of $5000. The
agreement stipulated that the applicant was entitled to cancel the agreement notice
in the event of the first respondent’s fault. First respondent refused to accept
cancellation. First respondent defaulted and the applicant gave notice of
cancellation and asked first respondent to vacate mining claims. First respondent
refused to accept cancellation and alleged fraudulent misrepresentation. First
respondent said it was prepared to abide by the contract. The applicant sought a
temporary interdict to restrain the respondent’s from continuing with mining
operations pending the determination of its claims for cancellation of contract.

Held: The court set out the requirements for a final and temporary interdict. The
court was in line with Setlogelo case. The applicant had shown a prima facie right
and met the other requirement for a temporary interdict. The court also held that
since the balance of convenience issue had not been raised by the respondent, the
applicant was entitled to the relief sought.

On the issue of injury (apprehension or actual) there are two cases which
emphasizes that the injury should be of a continuing nature. If it’s a one off event
then the remedy for the applicant is remedies for injury suffered and not an
interdict.

See Performing Right Society (Ltd) v Berman & Anor 1966 RLR 209
The plaintiff sued the defendant claiming an interdict for infringement of copyright and
damages. The defendant had caused or authorized the performance of the plaintiff’s
musical works at a night club. The night club was subsequently closed when the liquor
licencing board refused to renew its licence.

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Held: this injury was of a continuing nature because the night club was now closed.

Held: the interdict sought by the plaintiff was a normal remedy for infringement where
the plaintiff’s rights and the breach of them are clearly established where the defendant
does not claim to be entitled to perform the musical works without a licence from the
plaintiff and where the defendant was not given an undertaking not to repeat the
infringement. For the plaintiff to succeed the circumstances should not be such that there
is no likelihood for future infringement occuring. The plaintiff foes not have to provide a
positive proof of likelihood of repetition of infringement.

Held: the defendants were likely to repeat the infringement and the interlocutory
interdict was granted.

Performing Rights Society v Butcher & Anor 1972 (2) RLR 362
The facts were almost similar to the above except that it was an application and the
second respondent was insolvent.

Held: The facts that the second respondent is now an unrehabilitated insolvent is no
reason for thinking that he will not commit similar future infringements nor is it an
obstacle to the granting of an interdict restraining him form indulging in such behaviour
pg. 365-66.

Remedy as a Requirement
See Reserve Bank of Rhodesia v Rhodesia Railways 1966 RLR 541
The applicant sought an interdict preventing the respondent from carrying any good in
transit from Zambia and vice versa until or unless the respondent made certain
arrangements about the receipt of moneys to which the respondent was entitled for
carriage of the goods. The proceedings were brought by petition (chamber application).
A rule nisi was granted but a temporary interdict was refused pending the return day.
Three days after the rule nisi was granted the Minister of Transport made an order under
Emergency Powers (control of goods and services) Reg. 1966 which achieved the same
objections as would have been achieved by an interdict. On the return date the
respondent argued that an interdict was no longer necessary because an alternative
remedy was available to the applicant.

Held: The interdict should not be granted because of the prerequisites to the granting of
an interdict that is the absence of similar protection by an ordinary remedy was not
satisfied. The court was also of the view that the Minister’s order was a more effective
remedy than the interdict and that the interdict sought might be an embarrasing conflict
between the Minister’s order. The application for an interdict was refused.

See Coleman v Bristow 1976 (1) RLR 97

An application for an interdict restraining the respondent form exercising certain hunting
rights on the applicant’s farm without the applicant’s permission. The parties had entered
into an agreement permitting the hunting but a dispute had arisen as to the number of

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animals which could be shot. The applicant was granted a rule nisi which operated as a
temporary interdict. The applicant argued that he was entitled to control the respondent’s
operations by virtue of a provision in the Parks and Wildlife Act of 1975. The parties had
entered into their agreement prior to the enactment of the Act. Respondent argued that
the applicant had the following alternative remedies:
(i) to apply to the Minister to act in terms of s66 of the Parks and Wildlife Act.
(ii) A claim for damages
(iii) Criminal prosecution

Held: these were not adequate remedies in terms of applying to the Minister the curt
noted the minister had not acted and it was not possible to know whether the applicant
would be successful in moving the minister to act. In respect to claiming of damages and
prosecution the court noted that these claims would not prohibit respondent from
infringing applicant’s rights.

Held: An attempt to prosecution has been unsuccessful. The interdict was granted.

Rights Requirements

See Gool v Minister of Justice and Anor 1955 (2) SA 682

It confirmed Webster v Mitchell
See Zim Music Rights Associaiton v ZBC HH 468/88
See Georgias v Zambezi Safari Ranch (Pvt) Ltd HH 71/90

On the issue of balance of convenience the court will look at who is more likely to be
inconvenienced by the granting of the interdict. If the respondent is to be inconvenienced
more than applicant the interdict will not be granted.

Procedures

(i) If applying for final interdict use court application and if its extremely urgent do it
ex parte.
(ii) With interlocutory interdict use court application and if extremely urgent use
chamber application ex parte
(iii) If you do it ex parte you do not get a final order but a provisional order
(temporary interdict) operates as a temporary-temporary interdict.

d. APPLICATION OF INTERDICT BY WAY OF EXPARTE

APPLICATION

Blue Bull Inc v Lennard Clothing Manufacturing (Pvt) Ltd 1984 (1) Zlr 49

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For an application of an interdict to be brought by way of exparte petition without

notice it is necessary that the matter be one of urgency or in which irreparable
harm may be done to the petitioner. The criteria for granting of an interdict are
well established and are

a) A clear right
b) Injury actually suffered or reasonably apprehended.
c) The absence of similar protection by any other ordinary remedy.

Test 2 1/6/04 2-4 pm Tuesday (optional)

85. PROVISIONAL SENTENCE 04

It is a procedure which is designed to enable the plaintiff who sues on a liquid document
to obtain relief without proceeding to trial. The purpose was clearly explained in

In Lesotho Diamond Works (1973) (Pvt) Ltd v Lury 1975 (2) SA 140 The plaintiff sued
the defendant for provisional sentence on two cheques backdated 25/01/94 for R2000 and
£600 respectively. Both cheques had been dishonoured because the defendant had
stopped payment. The defendant opposed the provisional sentence proceedings on two
grounds:
(i) the plaintiff being a peregrine had not furnished him with security
(ii) the diamonds that he purchased from the plaintiff for 5400 would have been
worth R11 500 of they were flawless but because were not flawless they were
worth R8 745 thus giving rise to a counter claim of R2 950. The plaintiff did no
deny the allegation that the diamond was flawless and did not reply to the
defendant’s opposing affidavit. The plaintiff’s counsel contented reply was
unnecessary because they were no indications that that counter claim arose from
the transaction to which the cheques related and the validity of the cheques had
not been challenged. Therefore he defendant had no probability of success in his
counterclaim.

Held: The two transactions were connected and this could be deduced from the
defendants’ affidavit. On the issue whether the defendant was limited in his defence to
challenging the validity of the cheques or he could establish the existence of a larger
challenge i.e challenge the transactions on which the instruments formed a part. The
court relied on Memel Board of Executors v Lardinar 1930 OPD 197, the procedural
methods of provisional sentences is no magic want where - with the disarm prospective
defendants or dispel all opposition thereto but it is a well recognised long standing and
often used mode of obtaining speedy relief where the plaintiff is armed with a liquid
document”. The purpose of provisional sentence is to avoid the “more expensive,
cumbersome and often dilatory machinery of an illiquid action.” P. 144. The conclusion
therefore defendant was entitled to raise the counter-claim as a defence and also the
defendant had established a probability of success.

Al Shams Global BVI Ltd v Equity Properties (Pvt) Ltd HH-237-13

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Zhou J

A summons for provisional sentence is issued where a plaintiff is the holder of a valid
acknowledgment in writing of a debt or a liquid document. The summons may be in one
or the other of two forms, Form No. 4 or Form No.5. It must call upon the defendant to
satisfy the plaintiff’s claim, or in default to appear before the court at the hour and on the
day and at the place stated in the summons to show why he has not done so, and to
acknowledge or deny the signature to the said liquid document or the validity of the
claim. Rule 25(1) of the High Court Rules provides that the defendant may file a notice
of opposition and supporting affidavit prior to the date stated in the summons; the
provision is not couched in peremptory terms. It therefore means that the defendant has a
choice as to whether or not to file a notice of opposition and opposing affidavit. Rule
25(2) provides that Order 32 shall apply, mutatis mutandis, to the service of a notice of
opposition and the filing and service of answering or further affidavits which may be
filed by the parties subsequent to the filing of the opposing affidavit. Where a notice of
opposition is filed, this does not mean that the matter will wait to be placed on the
opposed roll, although the filing of further affidavits after the opposing affidavit are to be
in terms of the provisions of Order 32.
It has previously been held that the practice of the High Court is to determine provisional
sentence matters on the date appearing on the face of the summons. Issues of
convenience to the court, which is essentially sitting as an unopposed court, can
effectively be overcome by the presiding judge standing the matter down to the end of the
roll for counsel to make their submission to court. However, r 223(1)(a) provides for the
setting down of uncontested cases for provisional sentence on the roll for unopposed
matters. There is no provision in the rules for contested cases for provisional sentence to
be set down on the same roll. The setting down of contested cases for provisional
sentence on the “unopposed” roll is, therefore, not in accordance with the provisions of
the Rules. It is not always apparent that the matter is to be opposed, because Forms No. 4
and 5 make no provision for the dies induciae within which the defendant must file a
notice of opposition and opposing affidavits, other than that it should be before the date
of the hearing inserted in the summons. The three courses of action available to the
defendant are (a) to satisfy the claim; or (b) to file opposing affidavits; or (c) to appear in
court on the date stated in the summons to admit or deny the claim. Where a defendant
chooses to appear in court on the date of the hearing to deny liability, it is only then that
the court becomes aware that the matter is contested. But if the plaintiff becomes aware
before the date of hearing that the matter is opposed, he should not set it down on the
unopposed roll.

F O Kollberg (Pty) Ltd v Atkinson’s Motors Ltd 1970 (1) SA 660.

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The court said, “the purpose of provisional sentence proceedings is to enable the plaintiff
to receive prompt payment without having to wait for the final determination of the
dispute between the parties.” 662.

a. Requirements to be Satisfied.
(i) The plaintiff must be suing on a liquid document
(ii) The defendant must be unable to adduce such counter proof or evidence as will
satisfy the court hat in the principal case the probabilities of success would be
against the plaintiff. The probabilities of success must be in favour of the
plaintiff.

b. What is a Liquid Document?

A liquid document is a document which contain the following characteristics:

(i) it must be signed by the defendant or authorized rep or be deemed in law
acknowledged by the debtor.
(ii) The document must send money – it must create an obligation to pay money.
(iii) The amount of the debt must be fixed and definite on the face of the document.
No extrinsic evidence would be allowed to prove the debt. There are certain
exceptions where extrinsic evidence would be allowed.
(b) extrinsic evidence may be allowed on ancilliary items which is ancilliary o he
obligation i.e bank cheques, insurance premiums etc.
See Prudential Building Society v Reynders 1941 WLD 29

(c) When payment of the debt is unconditional upon the happening of an event.
Evidence to prove that that event has happened can be provided by extrinsic
evidence. What must be conditional is payment of the debt.
See Rich & Ors v Lagerwey 1974 (4) SA 748 AD
The plaintiffs sued he defendant for payment of R5000 due in terms of a written
deed of sale. In the deed of sale the plaintiffs sold to the defendant the entire
issued share capital of a company called “Home Film Centre (Pty) Ltd. The
seller’s entitlement to the purchase price was conditional upon its fulfilment of
certain obligations as included holding of a meeting of directors and shareholders,
resignation of certain officials from the company, passing of the resolution and
delivery of certain documents in relation to shares. The plaintiffs applied for
provisional sentence which was applied in WLD. The defendant appealed
successfully to the TPD and the plaintiff further appealed. The defence raised by
the defendant was that the summons was defective because the plaintiff did not
allege that they had performed their obligations nor did they tender perfomance of
the same.

Held: Simple conditions precedent are not a bar to provisional sentence. All that
the plaintiff needs to do is to allege that the condition has been complied with or
that the event has happened. Once the plaintiff does that, the onus shifts to the
defendant to contradict the allegations made by the plaintiff.

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Examples of simple conditions were given as delivery or transfer of script; giving

of notice before payment by the debtor is due; where payment becomes due by
reason of the debtor’s failure to fulfil the terms of a contract such as failure to pay
interest on due date.

The court went on to give a general definition of simple: it connotes a condition

of event of a kind unlikely in the nature of things to give rise to a dispute or where
it is disputed is inherently capable of speedy proof by means of affidavit evidence
p. 755.

Mvemve v National Railways Of Zimbabwe 2015 (2) ZLR 338

The plaintiff was suing his employer for arrears salaries, bonus and other claims. In the
one letter, the employer accepted the claim for arrear salaries, but bemoaned financial
constraints and said bonus would be determined later. In the other letter, the employer
proposed to liquidate the arrears as shown in its records in substantial monthly
instalments. The plaintiff commenced provisional sentence proceedings based on two
letters. In its notice of opposition, the defendant objected to the provisional sentence
procedure on the basis that there was no liquid document. The plaintiff persisted with the
claim. The defendant sought dismissal of the claim and costs on a legal practitioner and
client scale.

HELD, first, that a liquid document must have a clear and unequivocal acknowledgement
of debt by the defendant. The acknowledgement must be for a definite sum of money.
The document must conclusively show that the defendant is acknowledging its indebtness
on a specified sum of money.

HELD: the defendant’s letters did not acknowledge any specified sum of money.
Therefore there was no clear and unequivocal acknowledgment of a specified amount due
to the plaintiff by the defendant.

Interfin Banking Corp Ltd (in liq) v Veanarcy (Pvt) Ltd HH-388-13

Mafusire J

In terms of r 20 of the High Court Rules 1971, the holder of a valid acknowledgement in
writing of a debt, commonly called a liquid document, may cause a summons to be issued
claiming provisional sentence on the document. A “liquid” document is one which
evidences by its own terms, without the need for extrinsic evidence, an unconditional
acknowledgement of indebtedness in an ascertained sum of money the payment of which
is due. In order to escape provisional sentence on a liquid document, the defendant must
satisfy the court on a balance of probabilities that it is unlikely that the plaintiff will
succeed in the principal case. Under r 21, a summons for provisional sentence shall inter
alia call upon the defendant to satisfy the plaintiff’s claim, or, in default, to appear before
the court to show cause why he has not done so, and to acknowledge or deny the

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signature to the said liquid documents or the validity of the claim. The provisional
sentence procedure is designed to afford summary relief to a plaintiff whose claim is
clear and based on a liquid document. The procedure provides a process whereby a
creditor who has sufficient documentary proof with a speedy remedy for the recovery of
money due without having to go through the expensive, cumbersome and often dilatory
process of an illiquid action. A creditor who has a liquid document is able to obtain an
enforceable provisional judgment speedily without having to wait for the final
determination of the dispute between the parties. A judgment granted in terms of this
procedure is founded upon the presumption of indebtedness evidenced by the document
which is truly liquid without requiring assistance of extrinsic evidence. Unlike the
summary judgment procedure, also an extraordinary remedy the judgment of which is
final unless appealed against, a provisional sentence, even though executable before trial,
remains provisional. The defendant against whom a provisional sentence is granted can
still have his day in court, if he so wishes. He may cause an appearance to be entered with
the registrar to defend the action, and must notify the plaintiff of such entry. If he fails to
do so within the stipulated time (one month), the provisional sentence immediately
thereafter becomes a final judgment (r 28). The provisional sentence may also become a
final judgment in terms of r 29 where the defendant appears in court and acknowledges
the claim, or files with the registrar in advance an acknowledgement of the claim over his
signature which is witnessed by his attorney or verified by affidavit. Where the defendant
enters appearance to defend the action, the summons stands as the plaintiff’s declaration,
and the defendant must file his plea within ten days after the entry of appearance.
Thereafter the matter proceeds as an ordinary action. The efficacy of the procedure
would be compromised if the summary nature of the proceedings were to be transformed
into a fully-fledged opposed motion matter by canvassing in much detail the merits of the
claim and the merits of the defence. This does not mean that in every situation where a
plaintiff produces a liquid document and claims provisional sentence on it, the court
cannot go behind that document. In appropriate situations it can. And the onus remains on
the plaintiff. In discharging the onus the plaintiff might derive assistance from various
factors. Thus, if the defendant does not deny his signature or the cause of action alleged
in the summons, that prima facie entitles the plaintiff to provisional sentence.

Conclusion
Appeal was dismissed because the document on which the plaintiff was suing was not a
liquid document (deed of sale). What was conditional was not the payment of the debt
but the debt itself.

c. Procedure in Terms of Rules R20

The plaintiff who has a liquid document has to claim provisional sentence R20. The
plaintiff uses a special summons for provisional sentence.
R21 gives the requirements of the summons. In terms of R22 the form used if form no. 4
and no. 5
Rule 23 – a copy of the liquid document should be served with the summons.
Rule 24 sets out additional requirements where the claim is based on a mortgage bond.

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Rule 25 gives the defendant a response to the summons of a provisional sentence. The
summons for provisional sentence actually calls upon the defendant to satisfy the
plaintiff’s claim or failing which to file papers to oppose the claim for provisional
sentence R25(1) file a notice of opposition and do in form 29A. which is supported by
one or more supporting affidavits indicating why provisional sentence should not be
granted. From then on, the procedure is the same as opposed applications and O32 shall
mutatis mutandis apply R25(2).

What is it that the defendant should establish

show that the probabilities of success are against the plaintiff.

Maimba v Nyagura HH 394/84

The plaintiff and the defendant entered into a contract for dale whereby the defendant
sold he plaintiff a residential property in Harare. The plaintiff was supposed to deposit
$3000 and thereafter pay monthly instalments of $140. The defendant was apparently
overpaid by a total of $2 429.00 to which was then added by a claim of $76 for legal
costs making a total of $2 505.99. The defendant signed an acknowledgement of debt
agreeing to repay that amount by an initial payment of not less than $500 and
subsequently monthly instalments of not less than $300. The defendant did not make any
payment and the plaintiff instituted proceedings for provisional sentence. The defendant
defence to the provisional sentence was that she had been mistakenly adviced by her
estate agent that she had been overpaid whilst she was owed $7 158.43 by the plaintiff.
She claimed the right to set off this amount against the plaintiff’s claim.

Held: set off was not possible because the plaintiff’s debt was long term whereas the
defendant owed was actually due. Such a set off would amount to a unilateral variation
of contract of sale.

Held: Once the signature on the liquid document is admitted the onus is on the defendant
to show that on a balance of probabilities there is a probability of success in the principal
action in his or her favour p. 4

Conclusion: The application for PS was granted because the defendant had not
discharged her onus.

There are exceptions for the principle that onus lies with the defendant (I) where he
denies the signature on the acknowledgement of debt the onus shifts on to the plaintiff to
prove the signature on a.o.d.

See

Donkin v Chiadzwa HH 217/87

The plaintiff issued summons for provisional sentence against the defendant for he sumo
f $10 000 due in terms of a.o.d. The defendant’s response was an affidavit in which he

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denied that the signature on the acknowledgment of debt was his or that he ever borrowed
money form the plaintiff. The plaintiff filed an answering affidavit with supporting
affidavits from witnesses who saw the defendant signing a.o.d.

It was stated that where the defendant denies the signature the onus should shift to the
plaintiff and the matter was referred to trial to resolve disputes on the papers.

In terms of R29 if the defendant acknowledges the claim either when he appears in court
for the provisional sentence hearing or by filing written notice to the Registrar the court
will give final provisional sentence judgment which disposes of he matter finally. If the
defendant is unsuccessful in opposing PS the court will give a judgment but within one
month after satisfying the judgment of the defendant voluntarily or within one month of
attachment made under a writ of execution the defendant may not satisfy the judgment
the defendant may enter appearance to defend. The matter will proceed as a contested
action R28.

If the defendant does not enter appearance to defend within one month the judgment
becomes final. R28.

 When the plaintiff want to execute the judgment given should provide security
even if the defendant demands security R31.
 In all other circumstances the court may order security by the plaintiffs in case it
may appear on trial that the debt or claim was not overdue. R30.
 R32 the nature of the security and the amount is fixed by the Registrar. Either
party may appeal against the decision of the Registrar to the court. R32.
 Where the judgement becomes final and security has been provided, security falls
away R28/32. If the judgment is granted and defendant enters an appearance to
defend, the provisional summons should stand as the plaintiff’s declaration and
the defendant shall file his plea within 10 days of entering of appearance and
thereafter the matter shall proceed as an ordinary action. Where P.S is refused the
court will order the matter to proceed to trial and the summons of PS shall stand
as an ordinary summons and the defendant will be required to enter appearance to
defendant within 5 days of the court’s judgment. Thereafter the matter will
proceed as an ordinary action unless the court gives other directions R34.

86. INTERPLEADER – 03

Interpleader proceedings can be instituted by an applicant who holds property or has

incurred a liability in respect of which there are two or more claimants and these
claimants are making adverse claims. Generally the parties to interpleader proceedings
are divided into two:
(i) deputy sheriff can institute interpleader proceedings in respect of property
attached by him and a third party alleges that the property is his and not of
judgment
(ii) debtor other claimants means any other person who is holding property or has a
liability for which they are facing adverse claims/

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 Purpose was explained in Bernstein v Visser 1934 CPD 270 @ 272. “interpleader is
a form of procedure whereby a person who is a stakeholder of other custodian of
movable property to which he lays no claim on his own rights but to which two or
more other persons lay claim may secure that they shall fight out their claim among
themselves without putting him to the expense and trouble of an action/actions”. Pg
272-3

Deputy Sheriff, Harare v Conview Energy (Pvt) Ltd & Anor HH-250-12

(Mathonsi J)

Following a judgment against the judgment debtors, a writ of execution, directing the
deputy sheriff to attach and take into execution movable property belonging to the
judgment debtors, was issued. The deputy sheriff duly placed under attachment
certain items of property, some of which were claimed by the claimant. The claimant
filed an affidavit, alleging that he was the owner of the items. The deputy sheriff
instituted interpleader proceedings in terms of Order 30 of the High Court Rules
1971. The claimant did not file any notice of opposition and or opposing affidavit, but
was represented by counsel at the court hearing. There, while conceding that no
opposing papers were filed, counsel argued that the claimant was entitled to be heard
as an interested party who had also submitted an affidavit to the applicant claiming
the goods. Held: It happens with alarming frequency that people who find their goods
being attached by the deputy sheriff merely submit an affidavit and documents to the
deputy sheriff laying a claim to such goods, then sit back and do nothing more. When
the deputy sheriff institutes interpleader proceedings, they do not bother to file
opposition; they only surface on the day of hearing, oblivious of their failure to
oppose the interpleader proceedings. The fact that a claimant has submitted an
affidavit to the deputy sheriff claiming the goods placed under attachment without
doing anything more does not confer upon such claimant the right to appear in court
when no notice of opposition and opposing affidavit have been filed. Where a deputy
sheriff has served a court application initiating interpleader proceedings, that
application commands the respondents (the claimant and the judgment creditor) to
file their opposition, if any. It also announces to them that, in the event of failure to
do so within the time frame given, the matter will be set down for hearing unopposed
and an automatic bar comes into effect. In casu, due to its failure to file a notice of
opposition and opposing affidavit, the claimant was, in terms of r 233(3),
automatically barred. Once either the claimant or the judgment creditor fails to file
opposition, the matter becomes unopposed for all intents and purposes and should be
set down for hearing on the unopposed roll.

a. Procedure

 Applicant would give the notice to the parties and the notice would state the nature of
the viability, property or claim which is the subject matter of the dispute and it will
call upon the claimants to deliver particulars of the claim in the form of a notice of

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opposition with supporting affidavit(s) it should also state that the applicant is
applying for the court’s decision as to his liability or the validity of the respondent’s
claim R207.
 The applicant would deliver with the notice an affidavit and in that affidavit state:
(i) they claim no interest in the subject matter in dispute other then the charges
and costs.
(ii) That they do not collude with any of the claimants
(iii) That they are willing to deal with or act in regard to the subject mater in
dispute as the court may direct R. 208
(iv) R206 gives duties of the applicant in relation to the subject mater pending
decision by the court. If the subject mater is merely the applicant will pay the
money to the Registrar who will hold the money until the matter has been
decided R206(1).
 Where the subject matter is any other thing capable of delivery the applicant shall
tender delivery of the thing to the registrar or take steps to secure the availability of
the thing in question as the Registrar may direct.R206.
 Where the conflicting claims relates to immovable property the applicant should
place the title deeds of the property available to him in the possession of the registrar
and also give an undertaking to the registrar that he will sign all the documents
necessary to effect transfer of the property as may be directed by the court R206(3)
 Once the notice and affidavit have been served on the respondent then the parties will
proceed in the same way as opposed applications R209.

b. Powers of the Court R210 (2)

(i) If a party is in default and they don’t appear at the hearing of an interpleader the
court will declare that person in default and all other persons claiming under him
barred. R210(1). In respect of other claimants who are there the court will
adjudicate on various claims after hearing such evidence as it sees fit. If the court
decides that it can’t decide the issue on paper then the court can order that any
claimant be made a defendant in an action already commenced in respect of the
subject matter in dispute or if there is no action concerned the court may order a
trial and the court will decide which claimant shall be the plaintiff and which one
should be the defendant.

How does the court make such decisions?

If its property attached by the deputy sheriff and the property was in the possession of the
judgement debtor then the court will usually order the third party who is claiming the
property be the plaintiff because it is assumed that prima facie that the property in
possession of the judgment belongs to the judgment debtor.

See Bruce NO v Josiah Parks and Sons (Pvt) Ltd 1971 (1) RLR 154
Bruce NO v de Rome and Anor HH 109/89
Greenfield NO v Blignaut 1953 SR 73

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It involved an impounded bull. The two parties claimed ownership of the bull and the
court was unable to resolve the matter on papers and ordered matter to go to trial. It
failed to decide who the owner was.

Held: Each party must be a plaintiff as they are. It made a complicated decision that one
party must seek declaration that the bull was his and the other party was to seek a
counter-claim that the bull was his.
If a defendant in an action institutes interpleader proceedings the proceedings will be
stayed until court makes the decision on the interpleader R211.

87. EXECUTION.

In the case of Chikwavira v The Sheriff & Anor HH-357-13 presided by Dube J
The applicant sought to have the sale in execution of his dwelling house set aside. His
grounds were that the sale was improperly conducted and that the property was sold for
an unreasonably low price. With regard to the first ground, he argued that the dates on
which the property was advertised were too close to the date of the sale, resulting in
many people who would have been prospective purchasers failing to come to inspect the
property and thus did not take part in the auction. The only person that inspected the
property and subsequently bought it was the second respondent, who was the only bidder.
He further argued that the property was inadequately and misleadingly described in the
advertisement. Among other things, the number of bedrooms was understated; a second
five-bedroom house on the property was described simply as a “cottage”; there was no
mention of the fact that there were two boreholes and two water tanks in the property;
and there was no mention of a large fowl run.

HELD: (1) The courts will not lightly set aside a judicial sale which has been confirmed
as this may discourage people from participating in judicial sales. The onus rests on the
applicant to show that the sale was improperly conducted or that the property was sold at
an unreasonably low price or any other ground.

2) Rule 352 of the High Court Rules places a duty on the Sheriff to advertise the property
at least once in the Gazette and once in a newspaper circulating in the district in which
the property is situated. The sale was advertised on three separate occasions over a period
of about 10 days. The rule does not specify when the advertisements must be made in
relation to the sale date. It places a duty on the Sheriff to advertise only once. That was
done.

(3) It is implicit from r 352 that the sale must be properly advertised. An advertisement
which inadequately describes the property is no advertisement at all. It will fail to comply
with the Sheriff’s mandatory obligation. The purpose of properly describing the property
is not merely to identify it. It is also to inform the public of what which is being sold,
with the aim of attracting the interest of potential purchasers to the auction, for it is in the
interests of the judgment debtor, and probably in the interests of creditors, that the
property to be sold should obtain as high a price as possible. In this case, a number of
relevant features of the property were omitted. The size and improvements on a property

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have a bearing on the value of the property. In these days of erratic water supplies, it is
important to inform interested parties of the existence of supplementary sources and
substitute water supplies in the form of boreholes. The existence of two boreholes on a
property is likely to generate more interest in the property than where there is one
borehole. The objective of informing the public of what was being sold with a view to
attracting the interest of potential purchasers to the auction was not achieved. The
provisions of r 352 are mandatory; a failure by the sheriff to describe the property
adequately or properly invalidates the sale. The sale should therefore be set aside. (4) It
was, accordingly, unnecessary to decide whether the price realised was unreasonably low.

a. APPLICATION FOR STAY OF EXECUTION

In the case of Chibanda V King 1983 (1) ZLR the court resolved that in an
application for stay of execution of judgment of the court, it is not enough
for the applicant merely to allege hardship. He must satisfy the court that
he may suffer irreparable harm or prejudice if execution is granted. One
way to do it this would be to adduce evidence that he now has sufficient
means to make payment on the due date but he must have a strong case to
present to the court. It must also be borne in mind that if the court were to
extend mercy, it would be doing it at the expense of a litigant who has
already established in court his right and title to what is being claimed.
Such mercy should rather be sought in the action itself before judgment is
given, not afterwards.

88. CIVIL IMPRISONMENT

This is a very drastic remedy which should be used as a last resort during the enforcement
of a judgment. The process is governed by Order 41 where r 368 provides the following;

(1) Where the sheriff or his deputy has made a return of nulla bona or not sufficient
goods on a writ of execution the judgment creditor may cause to be issued a
summons commanding the judgment debtor to pay the amount of the judgment
and, unless he does so, to show cause at a time and place stated why an order for
personal attachment shall not be decreed against him.
This is done through summons which must be in Form No.46
The court has to be satisfied before giving an order for personal attachment since this is a
drastic remedy hence it conducts an inquiry in terms of r 370. During this inquiry the
court shall;
(a) Call upon the judgment debtor to adduce evidence as to his financial position; and
(b) Receive any evidence that may be adduced by or on behalf of the judgment debtor
or the judgment creditor in regard to the judgment debtor’s financial position and
his ability to pay the amount due, whether such evidence is adduced orally or by
affidavit or in any other manner that the court considers appropriate; and
(c) Where evidence is adduced orally, permit the cross examination of the witness
concerned

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The court then weighs the ability of the judgment debtor to pay the amount due, taking
regard of the following;
(a) The nature and extent of his income and assets; and
(b) The amounts needed by him for his necessary expenss and those of his dependants;
and
(c) Any amounts needed by him to make payments in terms of any court order or
agreement; and
(d) If he is unemployed, he reason hereof; and
(e) If he is employed, whether a garnishee order would be appropriate, in which event
the court may adjourn the inquiry to enable proceedings for such an order to be
instituted in terms of Order 42.

A garnishee order was defined in the case of Mugabe Mutezo and Partners v Barclays
bank of Zimbabwe Ltd and Anor 1989 (3) ZLR 162 the court said where a garnish order
is granted under order 42 of the rules of the high court, it takes form of an order for
attachment and payment that is for execution. There is no need for the judgment creditor
thereafter to institute fresh proceedings at common law in order to secure payment. The
garnish order itself is directed at the garnishee and requires him to pay over the sum
stated in the order. Non-compliance with order constitutes contempt of court.

From this information, the Court is able to ascertain whether the judgment debtor’s
failure to pay the amount due is willful. If it is willful, then an order for personal
attachment can be given.

The order for imprisonment of a judgment debtor shall be for a period not exceeding
three months unless there are special circumstances which call for a longer period. See r
370C

A writ for personal attachment of a judgment debtor shall be signed by the registrar and
addressed to the sheriff or his deputy, being in Form No. 47. R 373
It may be executed at any hour on any day at any place. However, certain people are
exempted and these include
(1) A member of Parliament or an officer of Parliament while such member or officer is
in actual attendance on Parliament or any committee thereof
(2) A person entitled to immunity from personal attachment under the Privileges,
Immunities and Powers of Parliament Act [Chapter 10]
(3) A person upon whom immunity from personal attachment is conferred by any other
law.

89. COSTS

A party who is successful in proceedings is entitled to an award of costs as the presiding

Judge sees fit depending with the circumstances of the case.

a. Purpose

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Costs are granted with a view to affording the party who has been awarded an order for
costs a full indemnity for all costs reasonably incurred by him or her in relation to the
claim or defence to ensure that all costs be borne by the party against whom such order
has been awarded.

R 306 (1) provides that every registrar shall be a taxing officer for the purpose of taxing
costs and may designate such persons as he deems fit and for whom he shall be
responsible as assistant taxing officers and any reference in this order to a taxing officer
shall include an assistant taxing officer so designated.

Costs allowed (r 307)

The taxing shall allow all such costs, charges and expenses as appear to him to have been
necessary or proper for the attainment of justice or for defending the rights of any party,
but save as against the party who incurred the same, no costs shall be allowed which
appear to the taxing officer to have been incurred or increased through over-caution,
negligence or mistake, or by payment of a special fee to another legal practitioner, or
special charges and expenses to witnesses or other persons or by other unusual expenses.

A notice of taxation in terms of r 310 shall be made to the party against whom any order
for costs has been awarded unless the party against whom costs have been awarded has
either not entered appearance to defend or has failed to appear before the court either in
person or by legal practitioner.

90. REVIEW (in detail)

Parties are entitled to review proceedings of lower courts in the High Court at any stage
of the proceedings. Tracing the powers of review, the roots lie in the Constitution, section
68 providing for administrative justice.

Section 68 (1) provides that-

Every person has a right to administrative conduct that is lawful, prompt,

efficient, reasonable, proportionate, impartial and both substantively and
procedurally fair.

The purpose of review is to set aside or correct decisions of inferior courts, tribunals and
administrative tribunals which are not proper (according to the law). Section 26 of the
High Court Act gives the High Court the Jurisdiction to review the proceedings of
inferior courts. Order 33 Rule 256 is the procedural path way to utilize the provision of
section 68 (1). The rule provides that-

Save where any law otherwise provides, any provides, any proceedings to bring
under review the decision or proceedings of any inferior court or of any tribunal,
board or officer performing judicial, quasi-judicial or administrative functions,
shall be by way of court application directed and delivered by the party seeking to
review such decision or proceedings to the magistrate, presiding officer or

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chairman of the court, tribunal or board or to the officer as the case may be, and to
all other parties affected.

The court application, must clearly outline the grounds upon which the applicant seeks to
have the proceedings set aside as well as the exact relief prayed for. See r257
Some of the grounds or review as per section 27(1) of the High Court Act include-
 Absence of jurisdiction on the part of the court, tribunal or authority involved
(Witham v Director of Civil Aviation and Another 1983 (1) ZLR 52; Cluff
Mineral Exploration (Zimbabwe) Ltd v Union Carbide Management Services
(Pvt) Ltd and Others 1989 (3) ZLR 338 (S)
 Interest in the cause, bias, malice or corruption on the part of the presiding officer
 Gross irregularity in the proceedings or decision (Abbey Estates and Investments
(Pvt) Ltd v Property Renting Corporation and Others 1981 ZLR 39; Minister of
Labour, Manpower Planning and Social Welfare v P.E.N Transport (Pvt) Ltd
1989 (1) ZLR 293

a. Scope of the Review powers

Using section 28 of the High Court Act, the court on review may;
 Confirm, set aside or correct
 Remit to court a quo when it sets aside but may correct in exceptional
circumstances (Director of Civil Aviation v Hall 1990 (2) ZLR 354
The proceedings should be brought before the court within eight weeks of the termination
of the proceedings which form the subject of the review. The court may, however, extend
time for good cause shown by the applicant.

b. Main differences between appeal and review

 Appeal is based on the record of proceedings appealed against; On review, the

Court can go outside the record and receive extrinsic evidence
 On appeal, the complaint is about the result/outcome of the proceedings whereas
on review the complaint is about the method which led to the result/outcome.
 Appeal is against judgment which means it comes after the matter has been
completed whereas review application can be made at any stage during the
proceedings

NB-the decision of a Magistrates court can be reviewed by the High Court. It should also
be stressed out that the High Court cannot be bypassed to the Supreme Court

91. REVIEW IN THE SUPREME COURT

Section 25 of the Supreme Court Act provides for review powers of the Supreme Court.
The section provides as follows;
(1) Subject to this section, the Supreme Court and every judge of the Supreme Court
shall have the same power, jurisdiction and authority as are vested in the High Court

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and judges of the High Court, respectively, to review proceedings and decisions of
inferior courts of justice, tribunals and administrative authorities.
(2) The power, jurisdiction and authority conferred by subsection (1) may be exercised
whenever it comes to the notice of the Supreme Court or a judge of the Supreme
Court that an irregularity has occurred in any proceedings or in the making of any
decision notwithstanding that such proceedings are, or such decision is, not the
subject of an appeal or application to the Supreme Court.
(3) Nothing in this section shall be construed as conferring upon any person any right to
institute any review in the first instance before the Supreme Court or a judge of the
Supreme Court, and any provision may be made in the rules of court, and a judge of
the Supreme Court may give directions, specifying that any class of review or any
particular review shall be instituted before or shall be referred or remitted to the High
Court for determination.

An understanding of the section shows five (5) essential aspects which are as follows;

(a) It confers review jurisdiction on the Supreme Court and every judge of the
Supreme Court;
(b) The review jurisdiction conferred on the Supreme Court and every judge of the
Supreme Court is of the same level as the High Court or a Judge of the High
Court and is over inferior courts, tribunals and administrative authorities;
(c) The review jurisdiction is exercisable by the Supreme Court and/or every Judge of
the Supreme Court mero motu when an irregularity comes to its/his attention;
(d) In terms of s25 of the Act, no person has a right to institute review proceedings in
the first instance in the Supreme Court; and
(e) The section provides for the making of rules for review by the High Court and
also for the Supreme Court or any Judge of the Supreme Court to remit a matter
for review to the High Court.

The Chairman Zimbabwe Electoral Commission and Anor v Roy Leslie Bennet and Anor
SC 48/05

ZIYAMBI J; It appears to me that the effect if subsections (2) and (3) of s 25 of the
Supreme Court Act is that although the Supreme Court may correct an irregularity in
proceedings or in the making of a decision which comes to its attention, not necessarily
by way of appeal or application, no person has the right to institute any review in the first
instance before this Court. Thus it is open to a party aggrieved by proceedings in a lower
court to apply directly to the Supreme Court on review for redress. This much is clear
from the wording of s25 (3) of the Supreme Court Act.

92. APPEALS IN THE SUPREME COURT

Except in constitutional matters, the Supreme is the final court of appeal. The Court deals
only with the questions of law in respect of the decision by the lower court. This means
that a Judge of the Supreme Court, on appeal, is guided by the evidence in the record.

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The commencement of the appeals procedure is by noting of an appeal in terms of r 29 0f

the Supreme Court rules signed by the appellant or his or her legal practitioner. The
notice of appeal must be filed with the Registrar and r 29 (2) provides that once the notice
has been filed, it must thereafter be served on the respondent.
A question arises regarding non-compliance with the rules in this aspect so as to render
the appeal fatally defective. The court has a wide discretion and may condone non-
compliance in terms of r 4 of the Supreme Court rules which provides for departure from
rules.

There are certain essential elements which make the appeal valid. These are;

(a) the date on which, and the court by which, the judgment appealed against was
given;
(b) if leave to appeal was granted, the date of such grant;
(c) whether the whole or part only of the judgment is appealed against;
(d) the grounds of appeal in accordance with the provisions of rule 32;
(e) the exact nature of the relief which is sought;
(f) the address for service of the appellant or his attorney
See r 29

Regarding the grounds of appeal, r 32 provides that;

(1) The grounds of appeal shall be set forth concisely and in separate
numbered paragraphs.
(2) The appellant, whether on appeal or on cross-appeal, shall not without
leave of the court urge or be heard in support of any ground of appeal not set out
when the appeal was entered, but the court in deciding the appeal shall not be
confined to the grounds so stated

After the noting of an appeal, the respondent is entitled to enter a cross-appeal within ten
days of the entry of appeal in terms of r 29.
It should be stressed that once an appeal is noted, there is an automatic suspension of
execution of the judgment which is being appealed against. The judgment creditor, if he
or she wishes to execute nonetheless, will have to show good cause why execution
pending appeal should take place.

The appellant may abandon an appeal through a notice served on the Registrar and the
respondent. The Respondent may apply to a Judge for an order of costs incurred during
the appeal or cross-appeal to that effect. See r 37

Leading of evidence in an appeal (requirements of the application)

The basic requirements of an application for the leading of evidence on appeal were set
out by HOLMES JA in S v de Jager 1965 (2) SA 613 as follows;

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(a) There should be some reasonably sufficient explanation, based on allegations

which may be true, why the evidence which it is sought to lead was not led at
the trial
(b) There should be a prima facie likelihood of the truth of the evidence
(c) The evidence should materially be relevant to the outcome of the trial.

The non-fulfilment of any of the requirements would ordinarily render the application
fatal.

a. Heads of argument in the supreme court

Rule 6 of the Supreme Court Rules provides the following:

(1) Subject to the provisions of rule 43, counsel may, in any matter which is to be
heard before the court or a judge submit written heads of argument for the assistance of
the court and shall submit such written heads of argument when requested so to do by a
judge.
(2) Where written heads of argument are requested by a judge in terms of subrule (1)
and subject to any direction which may be given by the judge, the provisions of rule 43
shall apply mutatis mutandis.

According to r 43-

(1) Where the appellant will be represented by a legal practitioner at the hearing of
the appeal, a registrar shall send written notification to that legal practitioner as soon as
he has received the record in terms of rule 41, and shall call upon the legal practitioner to
file heads of argument within fifteen days after the date of such notification.
(2) Within fifteen days after being called upon to file heads of argument in terms of
subrule (1), or within such longer period as a judge may for good cause allow, the
appellant’s legal practitioner shall file with a registrar a document setting out the main
heads of his argument together with a list of authorities to be cited in support of each
head, and immediately thereafter shall deliver a copy to the respondent.
(3) Where the respondent will be represented by a legal practitioner at the hearing of
the appeal, that legal practitioner shall, within ten days after receiving the appellant’s
heads of argument in terms of subrule (2), file with a registrar a document setting out the
main heads of his argument together with a list of authorities cited in support of each
head, and immediately thereafter shall deliver a copy to the appellant: Provided that,
where —
(a) the respondent’s legal practitioner has not received appellant’s heads of argument
in terms of subrule (2), whether because the appellant will not be legally represented at
the hearing of the appeal or for any other cause; or
(b) the appeal is set down for hearing less than fifteen days after respondent’s legal
practitioner receives appellant’s heads of argument in terms of subrule (2); the
respondent’s legal practitioner shall file his heads of argument as soon as possible and in
any event not less than four days before the hearing of the appeal.

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(4) Upon receiving the appellant’s heads of argument in terms of subrule (2), the registrar
shall set the appeal down for hearing:
Provided that, unless the parties agree otherwise, at least four weeks’ notice shall be
given to the appellant and the respondent.

NB It should be stressed that the failure by the appellant who is represented by a legal
practitioner to serve heads of argument on the Registrar will result in the appeal being
deemed abandoned thereby resulting in its dismissal.

Swimming Pool & Underwater Repair (Pvt) Ltd & Ors v Rushwaya & Anor S-32-12

Chidyausiku CJ

An application for a spoliation order in a court of first instance is heard on an urgent

basis, because of the need to urgently stop unlawful conduct and self-help and restore the
status quo ante until the law has taken its course. Where, however, the applicant for a
spoliation order has been unsuccessful in the court of first instance and wishes to appeal
against that decision, the appeal will not necessarily be heard on an urgent basis.
Different considerations apply, in that a court of competent jurisdiction will have
determined whether or not there was spoliation. Whether or not the appeal should be
heard on an urgent basis should depend on the prospects of success of the appeal. Where
there are good prospects of success on appeal, the appeal should be heard on an urgent
basis so as to bring to an end the unlawful conduct. However, where the appeal has no
prospects of success, the appeal should not jump the queue.

J G Construction v Chadwick & Anor HH-141-12

(Bere J)

The first respondent obtained summary judgment in the High Court against the
applicant, who noted an appeal to the Supreme Court. The notice of appeal was
subsequently served on the Registrar of the High Court. Despite the noting of the
appeal, the first respondent proceeded with execution, prompting the applicant to
lodge an application to interdict the first respondent from continuing with
execution pending the finalization of the case. The first respondent argued, inter
alia, that by failing to serve the notice of appeal on the him, the applicant had not
complied with the peremptory requirements of r 29(2) of the Supreme Court
Rules 1964, which requires that, once filed or noted, the notice of appeal must be
served inter alia on the respondent. On that basis, he
contended that the notice of appeal was fatally defective and consequently the
appeal itself must be rendered a nullity. The applicant argued that, once it noted
its appeal, the first respondent was automatically barred from proceeding with
execution in the absence of a successful application to execute pending the
outcome of the appeal. It argued that it was not the function of the High Court to

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deal with the alleged shortcomings or defects in the appeal, but that of the
Supreme Court itself.

Held: (1) it was questionable whether it was the function of the High Court to try
and deal with the merits or demerits of an appeal, which for all intents and
purposes was not before it but was intended for the Supreme Court. In terms of
the Supreme Court Rules, that court has a wide discretion in dealing with the
matter placed before it. For good and sufficient cause shown, it may decide to
condone non-compliance with its own rules (see r 4). The right of granting any
indulgence fell within the province of the Supreme Court and not the High Court,
which was functus officio.

(2) Once an appeal is noted or filed it suspends execution. The High Court Rules
provide a remedy in the event of the other party desiring to proceed with
execution, despite the noting of an appeal. In the interim, the relief sought would
be granted.

Ashanti Goldfields Zimbabwe Ltd v Nguwo HH-58-12

Mutema J

In enacting the provision in s 43(2)(b) of the High Court Act [Chapter 7:06] that
no appeal shall lie from an order of a judge of the High Court giving
unconditional leave to defend an action, the Legislature intended to refer only to
the granting of unconditional leave to defend in summary judgment proceedings
in terms of rr 69 and 70 of the High Court Rules 1971 (RGN 1047 of 1971).
Implicitly, from the provisions of s 43(2)(b), where conditional leave to defend is
granted in summary judgment proceedings, the right of either party to appeal is
restricted to a right of appeal (with leave of the court) only against the conditions
imposed.

Prescription

Browne v Tanganda Tea Co. (SC 96/14)

“In terms of ss 16 (1) and (3) of the Prescription Act [Chapter 8:11] prescription shall
commence to run as soon as a debt is due. Moreover, a debt shall not be deemed to be
due until the creditor becomes aware of the identity of the debtor and of the facts from
which the debt arises: provided that a creditor shall be deemed to have become aware of
such identity and of such facts if he could have acquired knowledge thereof by exercising
reasonable care.

Sammy’s Group (Pvt) Ltd v Meyburgh NO & Ors S-45-15

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While the rules of court do not provide for an automatic bar against a defendant who files
an exception outside the prescribed time limits, documents filed in contravention thereof
cannot, in the absence of condonation of the non-compliance with the rules, have any
legal validity. The sanction must be that the pleading is invalid by virtue of its non-
compliance with the rules. There would be no basis on which a court could entertain such
pleadings.

For the purposes of an exception no facts (except agreed facts) may be adduced by either
party and an exception may thus only be taken when the defect objected against appears
ex facie the pleading itself, nor can the court rely on any facts or evidence not contained
within the pleading excepted to.

The upholding of an exception to a declaration or a combined summons does not carry

with it the dismissal of the action. The unsuccessful party may then apply for leave to
amend his pleading. It is the invariable practice of the courts, in cases where an exception
has been taken to an initial pleading that it discloses no cause of action, to order that the
pleading be set aside and the plaintiff be given leave, if so advised, to file an amended
pleading within a certain period of time. This practice a fortiori applies where an
exception is granted on the ground that the pleading is vague and embarrassing, a ground
which strikes at the formulation of the cause of action and not its legal validity.

In the rare case in which a departure from this practice may be permissible, the court
should give reasons for the departure. An order dismissing the plaintiff’s claim is a
drastic remedy and the courts have inclined towards the grant, where an exception is
upheld, of leave to the plaintiff to amend the offending pleadings.

Leave to amend is often granted irrespective as to whether or not, at the hearing of

the argument on the exception, the plaintiff applied for such leave. Where the
court does not grant leave to amend when making an order setting aside the
pleading, the plaintiff is entitled to make such application when judgment setting
aside the pleading has been

COSTS

All parties to litigation are entitled to apply for payment of litigation costs by the
other party to the proceedings. The awarding of costs is at the discretion of the
court. There are 3 types of costs that can be awarded in terms of the rules of civil
procedure.

a. Party and party costs

b. Legal practitioner and client scale. This is where the other party is forced
to pay the other party’s legal expenses including the legal fees.

Zimbabwe Online (Pvt) Ltd v Telecontract (Pvt) Ltd HH-206-12

Mutema J

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Whilst the courts will not lightly accede to a prayer for an award of costs on a
legal practitioner and client scale, such an award will be granted where the
unsuccessful party’s conduct has been completely unreasonable and
reprehensible. Where a party’s attitude has been that of a man who has
deliberately and stubbornly refused to bring a dispassionate mind to bear on the
dispute, which could have been resolved quite amicably and inexpensively if he
had showed the slightest co-operation, it would in such circumstances be quite
unfair for the
successful party to be put out of pocket in the matter of costs. The party’s conduct
could rightly be described as vexatious or reckless or frivolous, any one of which
could be a ground for the award of costs on the higher scale

c. Costs debonis propis this is when the legal practitioner is ordered to pay
the costs

Mafukidze V Mafukidze 1984 (10 ZLR 348

Costs usually follow the event but a successful party may be deprived of his costs
in such circumstances as
1. Causing of premature or unnecessary litigation
2. Causing unnecessary expenses
3. Continuing proceedings without just cause
4. Institution vexatious or frivolous proceedings
The most extreme order of court may make is to order costs to the unsuccessful
PARTY.

M M Pretorius (Pvt) Ltd & Anor v Mutyambizi S-39-12

(Ziyambi JA, in chambers

A legal practitioner is not engaged by his client to make omissions and to commit
oversights. He is paid for his professional advice and for the use of his skills in
the representation of his client. He is not paid to make mistakes. These could be
costly to his client. He is professionally, ethically and morally bound to exercise
the utmost diligence in handling the affairs of his client. Where the blame for the
numerous defects in an application for condonation of late noting of an appeal
was entirely attributable to the applicants’ legal practitioner’s flagrant disregard of
the rules of court and his casual attitude, it would be appropriate to make an order
that the practitioner should pay the costs personally.

Guard-Alert (Pvt) Ltd v Mukwekwezeke & Anor HH-405-12

Mutema J

While normally a litigant should not be penalised with costs, especially when that
litigant is a lay person, there may exist instances where a litigant – lay person or

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not, or self-actor or not – deserves to be mulcted with costs on an attorney-client

scale. This could happen where the action is frivolous and vexatious and an abuse
of court process, and where the court considers that, as a result, it would be just,
by means of such an order, to ensure, more effectively than it can do by means of
a judgment for party and party costs, that the successful party will not be out of
pocket in respect of the expense caused to him by the litigation.

Medical Invstms Ltd v Daka NO & Anor HH-279-12

Kudya J

The applicant sought a review of the taxing officer’s decision in which she
declined to consider the costs incurred by the deputy sheriff in effecting an order
of execution. The High Court had granted judgment in favour of the applicant
against the second respondent requiring her to hand over a certain motor vehicle,
failing which the deputy sheriff was empowered to seize the vehicle. The deputy
sheriff made 5 abortive visits to the second respondent’s premises in order to
seize the vehicle, which was later handed over by the second respondent herself.
She disputed the sum charged by the deputy sheriff for his visits. The taxing
officer agreed with the second respondent that the attempts at execution by the
deputy sheriff infringed r 322 of the High Court Rules, in that they were not
carried out under a writ of execution. The second respondent, in answer to the
current application, argued that the applicant had not complied with r 314(2) of
the Rules, which requires that “the court application shall specify the items
forming the subject of the grievance”.

HELD:

1. the court has power to interfere with or alter a taxing master’s ruling on two
grounds:
(a) on the application of common law rights on review which involve a finding
that he was grossly unreasonable or erred on a point of principle or law. In such a
situation the court would be at large and entitled to substitute its opinion for that
of the taxing master. However, even when such grounds for interference exist it
need not follow that the taxing master’s decision must necessarily be set aside or
altered.
(b) Even if there is no common law ground for interference, the court has a duty
to interfere if satisfied that the taxing master was clearly wrong in regard to some
item.

2. The wording of the High Court’s order did not require that a writ of execution be
raised before the deputy sheriff could execute. The court had the authority under r
4C to depart from r 322. The wording of the order indicates that it did so. It
specifically empowered the deputy sheriff to dispossess the second respondent of
the motor vehicle. Had the court wanted the applicant to execute through a writ, it
would not have empowered him to seize the vehicle in the order.

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3. The disallowed fees of the deputy sheriff could very well have been necessary
execution costs properly incurred in giving effect to the court order. The taxing
master was legally bound by the court order to consider them in terms of r 307.

Timba v Saruchera NO & Ors HH-461-15 (Makoni J)

The general principle regarding costs where a party withdraws his action or
application are: (a) the party ipso jure invites upon himself the obligation to pay
costs for the opposing side; (b) the withdrawing party is in no better position than
a losing party, his litigation being futile; (c) the withdrawing party cannot call to
his aid the merits of the matter in trying to avoid costs; (d) costs have to be paid
up to the date of withdrawal of the matter; (e) the sole question to be asked is
whether or not the matter has been withdrawn. If the answer is in the affirmative,
then liability for payment of costs will attach; (f) a withdrawing party seeking to
avoid a payment of costs has to advance very sound reasons why he should not
pay the costs.
If the opposing party has incurred costs, then generally speaking he will be
entitled to them.

DECLARATORY ORDER

Masuku v Delta Beverages HB-172-12

Cheda J

The applicant brought an application against her former employer, which was
cited as “Delta Beverages”. She sought a declaratory order to the effect that the
freezing of her salary and her later dismissal were null and void and that she
should be reinstated in her position. She alleged that she had not been afforded a
hearing in terms of the company’s code of conduct or in terms of the principles of
natural justice. The company raised three objections in limine: (a) that the
applicant had cited a non-existent entity, the company’s correct name being
“Delta Beverages (Pvt) Ltd)”; (b) that the High Court had no jurisdiction, as the
application was in reality one for review; and (c) that the matter was prescribed.

HELD (1) Generally, proceedings against a non-existent entity are void ab initio
and thus a nullity. However, where there is an entity which through some error or
omission is not cited accurately, but where the entity is pointed out with sufficient
accuracy, the summons would not be defective. Here, the respondent was a well
known blue chip company whose fleet of cars are all over the nation’s roads. Its
commercial advertisements needed no introduction. The applicant may have
technically erred in her description, but described the respondent with sufficient

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clarity, to the extent of eliminating any mistake, either legal or factual, about the
respondent’s identity.
(2) There is a clear distinction between an application for a declaratory order and
an application for review. Although the application was presented as one for a
declaratory order, its contents were those of an application for review. In such an
application, the applicant seeks a review arising out of the irregularity of the
procedure adopted by a tribunal or board. This what the applicant was seeking.
The draft order was clearly not a declaratory order, but relief obtainable on
review. As the application was in fact one for review, the correct forum for its
determination was the Labour Court, as provided for under s 89(6) of the Labour
Act [Chapter 28:01].
(3) In any event, the claim was prescribed, as the debt arose over three years before
the respondent was

Mpukuta v Motor Insurance Pool & Ors HB-25-12

Ndou J

It is not the business of the courts to dispense legal advice or express opinions on
abstract points. The courts exist for the settlement of concrete controversies and
actual infringements of rights, not to pronounce upon abstract questions, or to
advise upon differing contentions, however important. It is therefore a pre-
requisite to the grant of declaratory relief that the applicant must have some
existing, future or contingent right that would be affected by the order of the
court. The applicant must be an interested person, in the sense of having a direct
and substantial interest in the subject-matter of the suit which could be
prejudicially affected by the judgment of the court. The interest must relate to an
existing, future or contingent right. The court will not decide abstract, academic
or hypothetical questions unrelated to such interest. This is the first stage in the
determination by the court. At the second stage of the enquiry, it is incumbent
upon the court to decide whether or not the case in question is a proper one for the
exercise of its discretion under s 14 of the High Court Act [Chapter 7:06]. In this
regard, some tangible and justifiable advantage in relation to the applicant’s
position with reference to an existing, future or contingent legal right or
obligation must appear to flow from the grant of the declaratory order. A matter
that does not present a live controversy having practical consequences is not
justiciable.

ANTON PILLER

An Anton Piller order is a legal remedy available within our legal system but which is
relatively unknown to most people. Anton Piller orders are applications made to court in
cases where a person (the applicant) who wants to institute legal proceedings against
someone else (the respondent), has reason to believe that the respondent is in possession
of vital evidence which he or she could easily destroy or hide if they became aware of the

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legal proceedings. The applicant can apply to the court and ask for the evidence to be
preserved and to be delivered to the sheriff of the court. The application is generally
made in secret and without notice to the other party (the respondent). Because this type of
application is so invasive and violates one legal rights it has been called “ draconian” in
its application. It certainly offends against the “audi alteram partem”.

The most common area when Anton Piller orders are likely to be used is in the business
and commercial environment. It could involve restraint of trade agreements, intellectual
property matters, trade secrets, company data, client lists, although it’s not restricted to
such matters. The case which remains the benchmark for the South African legal position
on Anton Piller orders, lies in the Supreme Court of Appeal decision of Universal City
Studios Inc and Others v Network Video (Pty) Ltd 1989(2) SA 734. In passing judgment
in that case the judges said that Anton Piller orders

“have become a necessary evil in certain circumstances and will remain so until a
successful constitutional challenge is brought. What is furthermore clear is that by its
very nature it violates the rights of persons who are affected by its terms”.

The Courts generally adopt a cautious and circumspect approach to such an application
and if the relief is granted, stringent safeguards should be built into the order”.” Hence
the courts (who have a discretion in such cases), will not readily grant such an application
unless it is properly satisfied that the applicant has a cause of action against the
respondent, which he intends to pursue.

The applicant must also specify exactly what the nature of the evidence is for example he
must specify the documents or things, which are in the possession of the respondent. The
applicant will also need to convince the court that he or she has a real and well-founded
apprehension that the evidence may be hidden or destroyed. The documents are then
handed to the sheriff of the court for preservation.

Stanbic Nominees (Pvt) Ltd & Anor v Remo Invstm Brokers (Pvt) Ltd HH-354-13
(Mtshiya J)

(Judgment delivered 16 October 2013)

The respondent obtained a loan from a company known as Interfin and pledged its
shares as security. The respondent repaid the loan in full and then demanded the
return from Interfin of its shares and certificates. The shares and certificates were
not returned. The respondent then filed an urgent ex parte application for an
Anton Pillar order. A provisional order granted. The Deputy Sheriff was then
instructed to execute the order against those holding the shares and certificates.
An attempt to execute on the applicants failed because the applicants argued that
the order was not binding on them since they were not cited in the ex parte urgent
application. They sought a declaratory order to that effect. They argued that they
were not obliged to obey an order in which they were not cited. All they wanted

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was for the court to make a determination on whether or not the order granted to
the respondent was binding on them when they were not cited as parties in the
matter. Since the order was one ad factum praestandum (that is, an order to do,
abstain from doing a particular act or deliver a thing), it would was imperative, in
order for them to be bound by the orders obtained and sought to be enforced
against them, that they be cited therein.

HELD An Anton Piller order is a modern legal remedy, devised to cater for
modern problems in the prosecution of civil actions. The procedure allows a party
to make an ex parte application, without notice to the other side, for the
attachment and removal of documents or other evidence. An applicant for an
Anton Piller order must prima facie establish: (a) that he has a cause of action
against the respondent which he intends to pursue; (b) that the respondent has in
his possession specific and specified documents or things which constitute vital
evidence in substantiation of the applicant’s cause of action, but in respect of
which the applicant cannot claim a real or personal right; and (c) that there is a
real and well-founded apprehension that this evidence may be hidden or destroyed
or in some manner spirited away by the time the case comes to trial or to the stage
of discovery. The order should be directed to a specific respondent, to whom
notice is being denied until the search is effected. That is what brings about a need
for the court to proceed with caution and impose safeguards to protect the rights
of the party against whom the relief is sought. Such a party (respondent) must be
known and it can only be known through citation as a party to the proceeding(s).
The respondent in casu, as contained in its founding affidavit, knew who it
wanted to proceed against but decided to bring into the body of the order the
“parties to be searched”. The respondent knew that the premises belonged to the
applicants. It could not be denied that the effect(s) of the order had an adverse
impact on the applicants’ rights and interests (i.e. present and future).
Accordingly, execution against them when they were not parties to the matter had
no place in our law. This was not an academic exercise on the applicants’ part.
They had a right to have the legal position pronounced in terms of the declaratory
order they sought.

CONSTITUTIONAL COURT

The Constitutional Court is established by section 166 of the constitution. According to

the section 167 it is a superior court of record and it is the highest court in all
constitutional matters. The procedure in the Constitutional Court is governed by the
Constitution, the Constitutional Court Rules 2016, the Practice Directives of the
Constitutional Court no 2 of 2013 and according to rule 45 by the Supreme Court Rules
in areas where there are gaps in the constitutional rules.

Magurure & 63 Others v Cargo Carriers International Hauliers (Pvt) Ltd.

(SABOT) (CCZ 15/2016

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Definition of a constitutional matter.

A constitutional matter arises when there is an alleged infringement of a

constitutional provision. It does not arise where the conduct the legality of which
is challenged is covered by a law of general application the validity of which is
not impugned. The question whether an alleged conduct constitutes the conduct
proscribed by a statute requires not only proof that the alleged conduct was
committed, it also entails that the statutory provision against which the legality of
the conduct is tested be interpreted to establish the content and scope of the
conduct proscribed before it is applied to the conduct found proved

PROCEDURE IN THE CONSTITUTIONAL COURT.

Reckoning of time (rule 3)

Rule 3 of the rules provides for the reckoning of time.

Rule 3 subrule 1 provides that Saturdays, Sundays and public holidays must not be
included in the reckoning of time.

Ways in which matters are instituted before the constitutional court

Any matter to the constitutional court is brought through the following procedures

By way of application
By way of referral
Or by way of appeal.

According to order 4 any such application, referral or appeal shall be done in the
appropriate form as set out in the first schedule.

Departure from the rules and directives allowed (rule 5)

Rule 5 allows for the departure from the rules and directions as to procedure. The
primary consideration to be made by the court or the judge in departing from the rules
and giving directions is whether the interests of justice will be served by such departure
or direction.
 A judge may authorize a departure from any provisions of the rules.

 He or she may give directions as to the procedure which is not expressly

provided in the rules, as long as it appears just and expedient.

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 Rule 7 of the rules relates to address of service

Renunciation of agency

 Rule 8 provides for the renunciation of agency by a legal practitioner.

 The rules allow the legal practitioner to renounce agency at any time before the
matter is set down for trial.
 The rules prohibit the legal practitioner to renounce agency 3 weeks before the
date of hearing except with the leave of the registrar.
 In renouncing agency, the legal practitioner must do so in form CCZ 9 and the
notice must be filed with the registrar and copies served to the client and parties
relevant to the matter.
 A return of service is required to be filed with the registrar.
 If the legal practitioner fails to renounce agency in accordance with rule 8, such
purpoted withdrawal shall be ineffective

Service ( R 9)

Order 9 of the rules relates to the service. Service must be done by the parties or the
sheriff through personally delivering to the parties or their authorised agents.
Proof of service is 3 fold.

a. If it is delivered to the party’s legal practitioners, by production of a

reciept signed by the legal practitioner. This reciept must be accompanied
by a certificate by the person who effected the service. The certificate
must state that the document was served by him and on the signatory of
the reciept (R 9 (2) (a))
b. If it is delivered to the litigant him or herself, the proof shall be an
affidavit by the litigant that the document was served by him or her on the
person concerned. (R 9 (2) (b)
c. If service is effected by the sheriff, bay way of a return of service.(R 9 (2)
(c)

Order 9 rule 3 allows for a request to be made by the registrar to the judge to order
alternative service, when delivery on the person is difficult.

Section 40 of the interpretation act shall be followed in the service of documents unless
the rules provide to the contrary.

According to subrule 7 of rule 9, documents initiating proceedings are to be serviced by

the sheriff.

Amicus curiae (R 10)

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Order 10 provides for an amicus curiae. This is a person of particular expertise which is
relevant to the determination of any matter before the court and who is invited to file his
heads of argument with the court relating to his opinion on the matter before the court.

Duties of the registrar

Duties of the registrar are provided for under order 11.

Set down of matters (R 13)

Order 13 provides for the set down of matters in the constitutional court. Order 13 applies
to setting down of matters, whose set down is not provided elsewhere in the rules or the
act.

After all the preliminary requirements have been satisfied, the registrar, in consultation
with the Chief Justice within thirty days allocate a date for the case to be heard.

Once a matter has been set down, it can-not be withdrawn without consent of other party.

Meda v Sibanda & Others (CCZ 10/2016 Const. Application No. CCZ 65/15)

Mr Mpofu for the first respondent took several points in limine. He argued that the
application was improperly before the Court, because the remedy the applicant should
have utilized was that of an appeal to the Supreme Court as the application was in
response to the judgment of the High Court. Mr Mpofu argued that the Constitutional
Court has no jurisdiction to overturn an extant order of the High Court in a constitutional
application not alleging that the decision was a violation of the right to equal protection
of the law.

Mr Uriri for the applicant indicated that he had instructions to withdraw the matter and
sought to apply that the matter be withdrawn. Mr Mpofu opposed this application
arguing that the matter should not be withdrawn, but that the Court exercise its discretion
and dismiss the matter with costs on a higher scale.

While parties may at any time before a matter is set down, withdraw a matter, with a
tender of costs the same does not hold true for a matter that has already been set down for
hearing. Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in Erasmus “Superior Court Practice” B1-304. A
person who has instituted proceedings is entitled to withdraw such proceedings without

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the other party’s concurrence and without leave of the court at any time before the matter
is set down. The proceedings are those in which there is lis between the parties one of
whom seeks redress or the enforcement of rights against the other. An application for
appropriate relief on the grounds of alleged violation of a right is such a proceeding.

HELD:

1. Once a matter has been set down for hearing it is not competent for a party
who has instituted such proceedings to withdraw them without either the
consent of all the parties or the leave of the court. In the absence of such
consent or leave, a purported notice of withdrawal will be invalid. The
court has a discretion whether or not to grant such leave upon application.
The question of injustice to the other parties is germane to the exercise of
the court’s discretion. It is, however, not ordinarily the function of the
court to force a person to proceed with an action against his will or to
investigate the reasons for abandoning or wishing to abandon one.
2. The Court agrees with Mr Mpofu that there is an application before it to
dismiss. Having made this finding, the Court also accepts Mr Mpofu’s
preliminary point that the applicant should have exhausted the remedy of
an appeal instead of making a constitutional application. The law provides
a clear remedy of an appeal where an applicant is not happy with a
decision of a lower court. Competent relief could have been granted by
the Supreme Court, on appeal since all that the applicant wanted was an
order that the property in dispute was not especially executable and
subject to sale by execution.

AWARD OF COSTS AT A HIGHER SCALE OF LEGAL PRACTITIONER

CLIENT SCALE.

The applicant, through Mr Uriri offered to pay costs on the ordinary scale.
However, Mr Mpofu for the first respondent argued that the applicant should be
mulcted with costs on the legal practitioner and own client scale. It was his
submission that the matter, between the same parties, on the same facts and for
the same relief had previously been brought by the applicant under a different
case no. CCZ 31/15, and had been struck off the roll. It was Mr Mpofu’s
submission that the Court in that earlier case had highlighted the defects in the
application to the applicant’s legal practitioners. The same application has been
brought with the same defects.

HELD: While it is rare for the Court to grant costs on a higher scale in
constitutional matters, it is the unanimous view of the Court that the applicant’s
conduct justifies such an award of costs. The defects that afflicted the first
application were not attended to. Just as was the case with the previous

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application it has not been shown in the founding affidavit how s 71(3) of the
Constitution has been infringed. There is no doubt that the application should not
have been brought to the Court.

Applications generally ( Rule 14)

Part III of the rules provides for applications generally. Order 14 of the rules specifies the
presentations of applications to be filed with the constitutional court

See order 14 on how the applications should be drafted and presented for court.

Urgent chamber applications (r 15)

Order 15 provides for urgent chamber applications

If a party intends to file a matter as an urgent application, he or she must file the
application together with an affidavit requesting the matter to be treated with urgency.

1. The contents of the affidavit must set out

2. The facts of the matter
3. The name of interested or potentially interested parties.
4. Justification of the matter to be treated as urgent.
5. Certificate of urgency by a legal practitioner must accompany the affidavit.

Court applications( r 16)

Court applications with the Constitutional Court are regulated by order 16 of the rules.

 Applications shall be in form CCZ 1(rule 1)

 Where it is an exparte application, the application is to be form ccz 1 with minor

modifications (rule 2)
 The court application shall be supported by affidavits which must be deposed by a
person who can swear positively to the facts, the basis on which relief is being
sought and any relevant supporting documents.
 The court application must state the physical address of service
 Must be addressed to the registrar and served on all respondents
 Must call upon the respondents to serve notice of opposition within ten days of
notice being served.

Notice of opposition (or17)

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 Must be in form CCZ 2

 Must be filed within 10 days from date of service.
 Must be have supporting affidavit which embodies the facts on which the
respondents oppose the claim. Must file all relevant supporting documents.
 After filing with the registrar the respondents must file the notice of opposition,
together with affidavits and supporting documensts to the applicant.
 If respondent fails to file notice within the dies induciae, it will be barred and
registrar to require the applicant to file heads of argument and proceed to set
down matter for hearing

Court may require the applicant to address it on merits of claim even if the respondents
did not respond.

Answering affidavits. (r 18)

The applicant must file an answering affidavit within 10 days of service of the notice of
opposition.
Must serve to the respondent and registrar to require proof of service 2 days after such
service.
After the filing of answering affidavit, no further affidavits are to be filed without leave
of court.

Set down of applications( r 19)

Provided under rule 19 of the rules.

No notice of set-down is required if the respondent has been barred in terms of rule 17
sub-rule (5)
If the respondent has filed a notice of opposition and applicant has filed an answering
affidavit, the applicant has to request the registrar in writing to set down the matter for
hearing.
If the respondent has filed a notice of opposition and applicant has failed to file an
answering affidavit, the respondent has two options
To request the registrar, in writing, to set the matter for hearing
Make a chamber for the dismissal of the matter for want of prosecution

Chamber applications (r 20)

Provided for under rule 20 of the rules.

Shall be in Form CCZ 3 the form and requirements of such an application are provided in
the sub-rule 1 and it corresponding parts.

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Applications for direct access (r 21)

Part IV deals with the application for direct access. Direct access is a form of leave of
court to approach the court directly without going through the other surbodinate courts.
There are certain matters provided in rule 21 that are regarded as within the exclusive
jurisdiction of the court. Application for direct access is not needed in such cases since it
is the Constitutional court that only has jurisdiction in such cases. Direct access is to be
sought for those constitutional matters that other courts have the jurisdiction over. Bear in
mind that an application for direct access is a procedure to seek the approval of the court
to bring a substantial claim before the court determination. Thus application for direct
access is a preliminary procedure seeking approval to institute the main claim to the
constitutional court as the court of first instance. Application for direct access is intended
to seek leave of the court to approach the constitutional court as a court of first instance
on the constitutional matter at hand.

 Application for direct access is provided for in terms of section 167 (5) of the
constitution. Such an application must be supported by an affidavit, setting out the
facts on which the applicant is relying on for relief.
 The application shall be filed with the registrar and served on all interested parties
whether direct or substantial. The application shall set out
 The grounds on which it is contended that it is in the interests of justice that an
order for direct access be granted.
 The nature of the relief sought and the grounds on which such relief is premised.
 Whether the matter can be heard by the court without hearing any oral evidence,
or the manner in which oral evidence will be is to be adduced.
 The applicant must attach to the application a draft of the substantive application
he or she seeks to file with the court.
 Any person who has been served with the documents has the right to registered
his or her opposition with the registrar within 10 days after such service. Must
register his or her opposition by writing to the registrar and the applicant. In his or
her opposition, the grounds on which he or she opposes must be communicated.
 Application for direct access can be dealt with summarily without hearing oral or
written argument other than contained in the application itself.

In determining an application for direct access, the judge should consider the following
elements, amongst others
 Whether there are prospects of success if direct access is granted.
 Whether the applicant has any other remedy available to him or her
 Whether there are disputes of fact in the matter.

Cases on direct access to the constitutional court

Prosecutor General, Zimbabwe V Telecel Zimbabwe (Pvt) 2015 (2) 422 (Cc)

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The applicant approached the constitutional court directly, not in terms of section
85(1) but, under section 167 and 176 of the constitution. The applicant had lost an
appeal before the Supreme Court but the constitutional issues raised on which he
based his application before the Constitutional Court were neither raised before,
nor determined by the supreme court. The Supreme Court had upheld a high court
judgment that ordered the applicant to issue a certificate nolle prosequi to the
respondent. The applicant wanted the constitutional court to set aside the Supreme
Court judgment on the basis that it interfered with the independence of his office
provided for by section 260 of the constitution. At the hearing of the application,
the applicant conceded that the matter had not been properly brought before the
constitutional court.

HELD, that section 167 (1) merely makes the constitutional court the highest
court in constitutional matters but does not confer on anyone the right to approach
the constitutional court directly.

HELD FURTHER; that section 176 does not avail to a litigant of direct access to
the constitutional court.

HELD FURTHER; that direct applications to the constitutional court may only be
made in terms of those constitutional provisions that confer such a right.

HELD FURTHER, obiter that an appeal lies to the constitutional court against an
order of the Supreme Court, only on a constitutional matter that has been
determined by the Supreme Court.

Applications in terms of Chapter 4 of the Constitution.

 Rule 22 provides for the procedure for approaching the constitutional court
whether an allegation of violation of the bill of rights. If party intends to approach
the court as the court of first instance in the matter, an application for direct
access must first be done and the rules in rule 21 apply.
 Such procedure is by way of court application and the procedure as to court
applications applies mutatis mutandis.
 Application is to be signed by the applicant or his or her legal practitioner and
shall be furnished with the following elements

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 where relevant, the date on which direct access was granted

 The nature of violation being alleged
 The basis upon which the applicant seeks relief
 The nature of the relief sought
 The physical address of service of the applicant.

 Proof of service is to be filed with the registrar within two days of such service.

The procedure that applies in court applications applies with equal effect on court
applications in terms of chapter 4.

 After the filing of an answering affidavit, or the expiry of 10 days after the filing
of a notice of opposition and the founding affidavit, the registrar may require the
parties to file their heads of argument.

Chihava and ors v Principal Magistrate And Anor 2015 ZLR 31

The applicants approached the constitutional court in terms of s 81 (1) of the

Constitution of Zimbabwe alleging that the manner in which criminal proceedings
against them were conducted in the magistrate court were a breach of their fair
trial rights enshrined in s 70 of the constitution. They sought an order quashing
the proceedings and directing a trial denovo before a different magistrate. The
applicants filed their application while proceedings were still pending in the
magistrate court. The respondents raised a point in limine, contending that since
the application was premised on a constitutional issue that arose during the course
of proceedings in the magistrates’ court, the only course open to the applicants
was a referral in terms of section 175 94) of the constitution.

HELD: upholding the point in limine, that any constitutional issue that arises
during proceedings in a lower court ought to and must be brought to the
constitutional court only upon a referral in terms of section 175 (4) of the
constitution.

HELD FURTHER, that if, however a lower court improperly refuses to refer a
matter in terms of section s 175 (4), an unsuccessful applicant is entitled to
approach the constitutional court directly in terms of section 85 (1).

HELD, FURTHER THAT section 85 (1) of the constitution must not be given a
literal and grammatical meaning that has the effect of giving any person a direct

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and unfettered access to the constitutional court, without regard to order and
certainly in court process.
court and the lower courts on different aspects of the same case.

HELD, further that in interpreting section 85(1) and 175 (4) of the constitution, a
generous and purposive interpretation has to be adopted to avoid the absurdity and
disorder that would arise from parallel proceedings being pursued in the
constitutional

Challenge of the election of the President or a Vice President.

To be done in terms of order 23. Order 23 stipulates that it must be done through a court
application
The application is to be filed with the registrar and served on the respondent within 7
days of declaration of the result of the election.
Respondent, if intending to oppose must file notice of opposition within three days
service upon him or her, failing of which shall be barred.
Applicant may within 3 days of service, file and an answering affidavit.
Applicant is to file his heads of argument simultaneously with his or her answering
affidavit and serve a copy to respondent.
In the event that the applicant does not intend to file answering affidavit, must file heads
of argument at least 3 days before hearing the matter.
The respondent is to file and serve the heads of argument within three days of being
served with the applicant’s heads or argument.
If a party is a self-actor, shall not be required to file heads of argument.
The registrar shall set down the matter for hearing within 14 days of the filing of the
application.

Referral of a matter to the constitutional court.(r24)

Constitutional matters may arise in the proceedings in a lower court. Referrals of such
constitutional matters that arise during the proceedings in a lower court can be made in
two ways.
The court or judicial officer may mero muto request the parties to refer the submissions
on the constitutional issue or question to be referred for determination
The referral must state the specific constitutional issue he or she considers should be
resolved by the court.

The party may make an application to the presiding judicial officer for referral of the
constitutional dispute to the constitutional court for determination.

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Both referrals shall be made in form CCZ 4 and must be accompanied by a copy of the
record of proceedings and affidavits or statements from the parties setting out the
arguments they seek to make before the court.
The record of proceedings must furnish the following
(i) Evidence led by the parties
(ii) Where possible specify the findings by the judicial officer.
(iii) The issue for determination by the court.
Where there is a statement of agreed facts, it shall be sufficient to replace the evidence
and findings.
Where there is dispute of fact, the court making the referral should shall hear evidence
and make a determination on the factual issues.
If there is no dispute of facts, the parties shall prepare a statement of the agreed facts.

 The judicial officer shall instruct the clerk or registrar to refer the document
prepared for referral and the clerk or registrar is to transmit such documents
within 14 days of such direction.

The document must be certified before it is transmitted to the constitutional court.

When registrar has received referral, must call upon the parties to file their heads of
argument. After filing Heads of argument or either party failing to file its heads
argument, set down the matter for hearing.

Reservations regarding a bill

The President is entitled to seek the position of the court regarding the constitutionality of
Bill in terms of section 131 (8)(b)

Appeals to the constitutional court

A constitutional case may be brought before the constitutional court through an appeal
from the lower court.
A party who is aggrieved by a constitutional decision of a lower court is entitled to
approach the constitutional court through an appeal. The initial procedure is to apply for
leave to appeal within 15 days of the decision of the subordinate court which must be
filed with the registrar and the other parties, who must be cited as respondents,
It is necessary to obtain a leave to appeal in all appeals to the constitutional court, except
in the circumstances specified in terms of rule 21(1) and 31(2)

The application must contain;

(i) A draft notice of appeal
(ii) The decision against which the appeal is based and grounds on which such
decision is disputed.

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(iii) A statement concisely and clearly stating the constitutional matter raised
in the decision
(iv)Any supplementary information relevant to the proceedings and to be brought to
the attention of the court.

Respondents to file a notice of opposition within 10 days of service of application for

leave.The notice of opposition must
(i) show the grounds, in detail, on which the respondent opposes the appeal
(ii) Must have supporting affidavits
(iii) Any other supplementary information to be brought to the attention of
the court.

Cross appeals

Sub rule 6 provides for the provisions of cross appeal. A respondent who intends to cross
appeal must within 10 days from service, file an application for leave to cross appeal.
Rules which apply to appeals shall apply mutatis mutandis.
If the respondent fails to file a notice of opposition, he or she shall be barred and the
applicant entitled to request the registrar to place the matter to before the judge in
chambers for directions
If the request is not made, the registrar is to put the matter before the chief justice for
directions after the expiry of 10 days.

Notice of appeal

It is provided for in terms of rule 33

(i) An appeal shall be commenced by a notice of appeal in terms of this rule
(ii) The notice of appeal shall contain
(iii) The date on which and the court by which the judgment appealed against
was given
(iv)If leave was granted, the date of such grant
(v) Whether whole or part of the judgment is being appealed against, and if its only
part, which part of the judgment is being appealed against.
(vi)The grounds of appeal in terms of rule 36
(vii) The relief sought
(viii) The address of service of applicant.
The notice of appeal must be filed twice.
 One with the registrar of the constitutional court
 The other with the registrar or clerk from the court whose judgment is being
appealed against.

The time for noting an appeal is dependent on whether leave to appeal is needed.

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 If leave to appeal is not necessary, the notice must be filed within 15 days of the
date of judgment appealed against
 If leave is required, and has been granted, must be filed within 10 days from the
date the leave to appeal was granted.

Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15

(Ziyambi JCC)

The applicants sought leave to set down an appeal from the Supreme Court on an
urgent basis. It was argued that they had such a right of appeal, in view of the
wording of s 167(5)(b) as read with s 169(1) of the Constitution. The applicants
submitted that s 167(5)(b) granted a right of appeal in a case where the alleged
violation, by the Supreme Court, of the applicants’ constitutional right only
became apparent after the judgment was handed down. They argued that it was
not necessary to have requested the Supreme Court to refer the matter to the
Constitutional Court in terms of s 175(4). The respondent argued that an appeal
invites a superior court to determine the correctness of the lower court’s decision
on issues which were placed before it. There were no constitutional issues placed
before the Supreme Court for determination, or determined by the Supreme Court.
There could, therefore, be no right of appeal since no decision was made by that
court on constitutional matters. The proper recourse available to the applicants
was to bring an application in terms of s 85 of the Constitution if it was felt that a
breach of their fundamental rights had occurred.

HELD: the applicants had not established any right to approach the Constitutional
Court by way of appeal. Section 167(5) relates to rules of procedure regulating the
manner of approach to the Constitutional Court on appeal from lower courts. It
does not confer a right to appeal on a litigant who has no right of appeal. For this
right, the litigant must look elsewhere in the Constitution. Such a right may be
read into s 175(3), which applies where an order of constitutional invalidity of any
law has been made by a court. Failing that, a right of appeal could only arise
where the Supreme Court makes a decision on a constitutional matter

Application for condonation and extension of time

Rule 35 provides for application for condonation and extension of time within which to
appeal.
It must be made through a chamber application.
Must be signed by legal practitioner or party,
Must be accompanied by the copy of judgment being appealed against

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Application for condonation should be attached with the following

(i) A draft notice of appeal in accordance with rule 33
(ii) And affidavit setting out the facts on which the party intends to rely
Application for extension of time shall
(i) Have the notice of appeal in accordance to rule 33(1) and (2) attached to it
(ii) An affidavit setting out the reasons why the appeal was not entered in time or
leave to appeal was not entered in time

Grounds of appeal

Rule 36 governs the presentation of grounds of appeal.

(i) Must be concisely and in separate numbered paragraphs
(ii) Must get leave of court to argue or be heard in any support of any ground of
appeal not set when the appeal was filed
An application to amend grounds of appeal is allowed subject to adequate notice on the
other party.

Procedure on appeals

The procedure on appeals is provided in rule 38

After leave has been given in terms of the rules the applicant shall cause the preparation
of the appeal record and file it with the registrar.

Appeal record must contain the following

(i) The judgment of the court which is being appealed against

(ii) All documentation filed by the parties
(iii) All evidence adduced the court aquo which will be relevant in the
determination of the matter
(iv)Parties should agree on what must be contained in the record. In the absence of
such agreement, any party is to apply to the chief justice by way of chamber
application for directions on compilation of the record.
(v) Respondent may respond to the application within 10 days of service and shall set
out the reasons for his contentions.

Heads of argument

Rule 39 applies to heads of argument for all appeals, referrals and applications where
such heads have not been regulated by any other rule in the rules.

Rule 40 relates to informa pauperis procedure.

The hearing of matters

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Provided under rule 41

The hearing of any application shall be directed by the judge and may be heard in
chambers or in open court.
The parties are allowed 20 mins to address the court and must not repeat their heads of
argument. An assumption will be that the court has read its arguments when they were
filed.

Security for costs

Rule 42 relates to security for costs from the appellant or applicant.

Application of Supreme Court rules.

Supreme Court rules apply with regards to any matter that is not dealt with in the rules.
The court has the discretion to suggest to the contrary.

Barring is provided for in rule 49

Any party who has failed to file an opposing affidavit or heads of argument within the
time prescribed in the rules or as directed by the court or a judge shall be deemed to have
been automatically barred.

The bar may be removed in accordance to sub rule 3

Rule 54 relates to the passing of judgment

Costs

Rule 55 stipulates that generally no costs are awarded in a constitutional matter. The
awarding of damages is at the discretion of the court
Rule 55 sub rule 2 gives the orders that a judge may give with regards to costs
Sub rule 3 directs on instances where the costs will be awarded against a legal
practitioner or when he or she should be denied fees.

Rule 57 relates to the execution of judgments

The First Schedule provides the forms or templates to be used in any court process in the
Constitutional Court.

Constitutional Cases

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Nkomo v Minister, Local Gvt, Rural & Urban Development & Others (CCZ
6/2016

Requirements of mandumus

Undoubtedly, it is within the powers of a court before which a constitutional

matter is argued to grant, in an appropriate case, a mandatory interdict or
mandamus. I have already concluded that since the complaint does not relate to
the breach of a fundamental right, the applicant is not entitled to approach the
Court in terms of s 85. However, even assuming the applicant was properly
before the Court, he has not made out a case for the mandamus that he seeks.

While not necessarily bound by them, the Court is generally guided by common
law principles relating to interdicts. Thus in order to prove his entitlement to a
mandamus in this case, the applicant would be required to meet the requirements
for the grant of a final interdict. These are:

1. A clear right;
2. An injury actually committed or reasonably apprehended;
3. The absence of a similar protection by any other remedy.

Muzanenhamo v Officer In Charge CID (Law & Order) & Others (CCZ 287/12)

Material disputes of fact in motion proceedings

As a general rule in motion proceedings, the courts are enjoined to take a robust and
common sense approach to disputes of fact and to resolve the issues at hand despite the
apparent conflict. The prime consideration is the possibility of deciding the matter on the
papers without causing injustice to either party. The first enquiry is to ascertain whether
or not there is a real dispute of fact. A material dispute of facts arises when material facts
alleged by the applicant are disputed and traversed by the respondent in such a manner as
to leave the court with no ready answer to the dispute between the parties in the absence
of further evidence. In this regard, the mere allegation of a possible dispute of fact is not
conclusive of its existence. The respondent’s defence must be set out in clear and cogent
detail. A bare denial of the applicant’s material averments does not suffice. The opposing
papers must show a bona fide dispute of fact incapable of resolution without viva voce
evidence having been heard.

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26. REFERENCES
 Constitution of Zimbabwe no 20 of 2013
 Constitutional Court Rules SI 61 of 2016
 High Court of Zimbabwe Act, Chapter 7.06 (formerly NO 29/1981)
 High Court Rules, RGN No. 1047/71
 Supreme Court of Zimbabwe Act, Chapter 7.13 (formers No 28/1981)
 Supreme Court Rules, RGN. No. 380/1964
 Section 3 of the Matrimonial Causes Act, Chapter 5.13
 Constantine Theophilopoulos, CM van Heedern & A Boraine, Fundamental
principles of Civil Procedure, 3rd ed,2015
 Herbstein and Van Winsen: “The Civil Practice of the Supreme Courts in
Southern Africa” 3rd Ed.
 Superior Courts Act 10 of 2013 and Magistrates’ Courts Act 32 of 1944 and
Rules, 2016 edition, Juta.
 Isaacs “Becks Theory and Principles of Pleadins in Civil Actions” 5th Ed.
 Stuart Sime &Derek French, Blackstone’s Guide to The Civil Justice Reforms
2013
 A.A.S Zuckerman & Ross Cranston, Reform of Civil Procedure, Clarendon
Press, Oxford, 1995
 Deborah L. Rhode, Access to Justice, Oxford University Press, 2004
 Sarah Staszak, No Day in Court; Access to Justice and the Politics of Judicial
Retrenchment, Oxford, 2015

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