LECTURE 6: MAGISTRATES

COURT
Composition and Location of Court
- Section 6 states that every court shall be presided over by a Magistrate whose role is to
be an impartial adjudicator and render fair and sound judgment.

According to s3 of MCA, the President may, by statutory instrument—

(a) create regional divisions consisting of one or more provinces or of one or more provinces
and a portion or portions of a province or provinces or of one or more portions of a province or
provinces and declare the name by which any regional division shall be known;
(b) Create provinces and define the boundaries of each of them and declare the name by which
any province shall be known.
In accordance with Section 4 of the MC Act, The Minister may, by statutory
instrument—
(a) Establish one or more courts for any regional division;
(b) Appoint one or more places within each regional division for the holding of a court
for that regional division;
(c) Abolish the courts established for any regional division when such regional
division has been abolished.
(2) There shall be one or more courts for each province as the Minister may
determine.
(3) The Minister may, by statutory instrument, appoint one or more places within each
province for the holding of a court for that province.
The Constitutional Jurisdiction of Magistrate Courts
In accordance with s162 of the Constitution of Zimbabwe (2013 Constitution),
judicial authority is also vested in the Magistrate Courts.

Role of Assessors

Assessors act in an advisory capacity to the Magistrate provided that they possess
the requisite skills or experience which will assist the court. See s16 of the MC
Act.
Court Officials

 Clerk of Court (O3 of SI 11 OF 2019)

- Provides a case number for summons and all documents filed with the court.
- Responsible for keeping a record of all proceedings which occurred when the court
was in session.
- Also responsible for preparing the bundle of transcripts of the record of the
proceedings whereby there is an appeal to a superior court provided that the
prescribed fee has been paid.
Further, also responsible for actually furnishing the transcript of the record to the
relevant parties/persons
- The clerk can also allow the making of copies in his or her absence
 The Registry Staff

- The registry is responsible inter alia for typing of default judgments.

 Provincial Magistrate
May only try offences within his or her province.
Section 50 (3)(a)-(b) of the MCA determines the jurisdiction of a provincial
Magistrate, for instance with regards to Maximum sentencing, he or she may
impose 5 years or fine up to level 10, whether on summary trial or remittal by
AG.
 Messenger of Court ( s22 of the MCA & O 2 of SI 11 OF 2019
- The effect service of process. see Order 2 SI 11 OF 2019
- The messenger is vested with power to execute a writ of execution against movable property of a
judgment debtor. He can also seize, take and sell cheques, bills of exchange, promissory note etc.
- the messenger can also enforce a writ of execution on immovable property against a judgment
debtor
- The messenger can also whatever is necessary to effect registration of transfer of immovable
property.
- The messenger may also hold any cheques, bills of exchange, promissory notes,
- bonds or securities for money which have been seized or taken as security for the
- benefit of the execution creditor for the amount directed to be levied by the execution
- so far as it is still unsatisfied, and the execution creditor may, when the time for payment has
arrived, sue in the name of the execution debtor or in the name of any person in whose name the
execution debtor might have sued, for the recovery of the sum secured or made payable thereby.
TYPES OF PROCEDURES IN THE MAGISTRATES COURT
There are two basic forms of proceedings which may be used for instituting proceedings in the civil courts;
(i) Action – summons, see Order 8 of SI 11 of 2019 and (ii) Application -by way of notice of application or an
affidavit of evidence.
There are circumstances were application procedure is used. For example:
a. Where the statute specifically provides for. See Room Hire Co. v Jeppe Street Mansions 1949 (3) SA 1155,
Civil imprisonment etc.
b. 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, particularly if there are no material disputes of facts.
Whether or not there is a material dispute of fact. If there is a material dispute of fact then don’t use
application proceedings. Room Hire Co. v Jeppe Street Mansion (supra). This was an appeal from the
decision of the WLD declaring the tenancy by the appellant of certain premises belonging to the defendant to
be null and void under the provisions of s8 of Ordinance 46 of 1903. The grounds on which the tenancy was
declared null and void was that the premises were allegedly being used as a brothel. The court had also
ordered the ejectment of the appellant on the premises. The applicant has resisted the application to eject him
on three grounds:
 (i)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 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 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. See also Soffiantini v Mould 1956 (4) SA 150 where 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.” See also Joosab & Ors v Shah 1972 (4) SA 298.
c. Application procedure is used normally in interlocutory proceedings i.e for interim reliefs, interdicts
pendete lite.
d. Where the matter is urgent.
What about if there are material facts that cannot be resolved on paper?
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.
iii. The court can hear oral evidence on the issue in dispute
Stages of an Action

Issuing of summons
• Service of summons (according to SI 11 of 2019, it should be noted that
there is now provision of electronic for effecting electronic notices, service of
process, filings or other transactions) which means the defendant can be
served with summons electronically, see order 6 of SI 11 of 2019.
• Appearance to defend (notice of intention to defend)- O 10 of SI 11 of
2019
• Plea- O8 of SI 11 of 2019, & O 16
• Special Plea- O 14 R 6, R7 & R8 of SI 11 of 2019
• Reply- Order 17
• Close of pleadings – Order 17 Rule 4.
• Discovery of Documents- Order 18
• Pre-trial conference – Order 19 Rule 1
• Set down for trial – Order 19 Rule 2
• Trial- O19
• Judgment – O11 of S1 11 of 2019 Judgement by consent or default
Stages of an Application (Order 22 of S1 11 of
2019).

• Notice of application and supporting

affidavit
• Service of notice of application and
supporting affidavit
• Notice of opposition and opposing affidavit
• Replying affidavit
• Set down
• Hearing
• Judgment
• Interlocutory Procedures

 Interdicts

(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.

See Setlogelo v Setlogelo 1914 AD 221 at 227

See also Trustco Mobile (Pvt) Ltd &Anor v Econet Wireless (Pvt) Ltd & Anor (1) 2011 (2)
ZLR 14 (H)
Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S)
Requirements for Interlocutory Interdict

(a)a right which though prima facie established is open to some doubt.
(b)(b) and (c) are the same as in final interdict.
(c)the injury must be irreparable
(d)the balance of inconvenience must favor 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

See Watson v Gilson Enterprises (Pvt) Ltd & Ors 1997 (2) ZLR 318 (H)

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 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.

See Stellenbosch Farmers v Stellenvale Winery 1957 (4) SA 234 – (interlocutory interdict).
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 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 page 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”.
APPLICATION FOR RESCISSION OF DEFAULT JUDGEMENT

 Rescission of default judgment O30 read with s39 of the Magistrates Court Act

The circumstances in which default judgment may be granted:

 In default of appearance to defend (Order 11 Rule 4)
 In default of plea (Order 11 Rule 4)
 Upon default at pre-trial conference {Order 19 Rule 1(11)}
 Upon default at trial
 Upon failure to comply with a procedural order of the court e.g. order compelling delivery of further particulars –
{Order 33 Rule 1(3) (a)}
 Upon failure to respond to an application
• Rescission will not be granted if the applicant was in wilful default – {Order 30 Rule 2(1)}.
• Meaning of ‘wilful default: when one doesn’t attend court on purpose
 Whether Applicant chose default whilst aware of what he/she was required to do and the risk of default – Neuman
(Pvt) Ltd v Marks 1960 R & N 166; 1960 (2) SA 170 (R)
• Applicant will not be excused if default was a result of the negligence of his/her legal practitioner, but the legal
practitioner may be penalised in costs and the matter may be referred to the Law Society of Zimbabwe for disciplinary
proceedings against the legal practitioner.
Ndebele v Ncube 1992 (1) ZLR 288 (SC), Masama v Borehole Drilling (Pvt) Ltd 1993 (1) ZLR 116 (S)
APPLICATION FOR SPOLIATION ORDER

Definition: A spoliation order or mandament van spolie is an order

compelling a party who has unlawfully dispossessed another of
property to restore possession of that property.
• The court does not decide issues of ownership or legality of
possession therefore it can be obtained against the rightful owner or
possessor. The rationale for this stance is to discourage people from
taking the law into their own hands, thus causing a breach of peace
– Mans v Loxton Municipality and Another 1948 (1) SA 966 (C) at
977
• Requirements for Applicant to succeed:
 That he/she was in peaceful and undisturbed possession of the property.
 That Respondent deprived him/her of possession against his/her consent.
Botha and Another v Barrett 1996 (1) ZLR 299 (SC) at 302
• Respondent must also be in a position to restore possession i.e. Must not have since alienated or disposed of
the property – Portgieter v Davel and Another 1966 (3) SA 555 (O)
• Counter-spoliation permissible provided the person recovering possession acts forthwith and without breach
of peace. Rationale for allowing counter-spoliation is that the original possessor is regarded as not having
lost possession.
Mans v Loxton Municipality and Another 1948 (1) SA 966 (C) at 975 – 977)
• Ex parte application supported by affidavit – {Order 23 Rule 1(1) and (2)}.
• Provisional order granted calls upon Respondent to appear and show cause against it {Order 23 Rule 3(2)}.
• Provisional order and affidavit served on Respondent – {Order 23 Rule 4(1)}.
• Respondent may anticipate return date on 24 hours’ notice – {Order 23 Rule 3(3)}.
• Court may order deponent to affidavit to attend court for cross-examination – {Order 23 Rule 4(2)}.
• Court may vary or discharge order on cause shown – {Order 23 Rule 4(3)}.
• See Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H)
Choice of Proceedings
Application is not permissible unless there is a provision which expressly authorises its use
in the Act or the Rules or some other Statute

Common Terms In The Magistrates Court

 Plaintiff
 Defendant
 Applicant
 Respondent
 Absolution from the instance
 On a balance of probabilities
 Adversarial system
 Inquisitorial system
 Judgment for Plaintiff
 Judgment for the defendant
What is a Demand?
There are instances where a demand is exercised, and these are:
- 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.
- Where a demand is required to complete the cause of action. Examples
are by statute i.e the State Liabilities Act – 60 day notice is required when
suing the state.
- By agreement between the parties
- Where a demand is required to place the debtor in mora.
PLEADING OF A DEMAND
It is necessary if the demand was necessary to complete the cause of action.

THE FORM AND CONTENT OF THE DEMAND

It need not be in writing unless stipulated by statute or by agreement between the parties. It can be by the creditor himself or by someone
representing the creditor i.e Legal Practitioner.
The demand must give sufficient detail to enable the debtor to know the basis upon which the creditor is making his or her claim. The
demand must give reasonable time for the debtor to comply. Reasonable time depends on the circumstances. Usually 7 days is given to pay.
It is not necessary to threaten legal action.

PRESCRIPTION
General Law claims

Prescription Act, Chapter 8:11 (section 13)

 Debts owed to the state in respect of taxes, royalties, tribute, share of profits – 30 years
 State loans or debts from sale or lease of land by the state – 15 years
 Other debts owed to the state or debts arising from bills of exchange or other negotiable instruments or notarial contracts – 6 years
 Any other debt – 3 years except where an enactment provides otherwise e.g. Section 70 of the Police Act, Chapter 11:10; section 25 of
the Road Traffic Act, Chapter 13:11
Customary law claims
There is no prescription for customary law claims

Officers of the court

 Magistrate
 Messenger of Court
 Clerk of Court
 Assessors
 Chief Magistrate
 Interpreters
Locus Standi in judicio

Parties need to have legal capacity to use or defend proceedings. Legal capacity is also referred to as locus standi
and it is bestowed in general on all-natural persons over 18 years old with the exception of certain category of
people who are under legal disability. For example:
a. Minors - A minor is sued in the name of guardian or in their own name assisted by the guardian. If there is no
guardian, they should 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 on behalf of the woman as she is
deemed a minor.
e. Prodigal: it’s a person who is financially irresponsible and is represented by a curator bonis ad litem.
f. Alien enemies – cannot sue – it’s a person in a country in a declared state of war.
g. Fugitives cannot sue as they are regarded as temporary
stripped of their citizenry rights.
h. MPs cannot be sued in terms of privileges of Immunities
Powers Act for acts done in Parliament within the rules of
parliament.
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 Order 6 Rule 1 of the
Magistrates Court (Civil) Rules,1980 (Rules).
k. Judges
In respect of the artificial persons the following have locus standi injudicio if they are
established or incorporated within the laws:

(a) The government (state) may be sued in terms of s6 of the States Liabilities Act. A
responsible Minister or head of Department or the Secretary of the Ministry concerned
may be sued as a defendant in terms of s3 of the State Liabilities Act. One should cite the
Minister by title and not by name e.g XV Minister of Lands.
(b) Local authorities and municipality’s e.g RDC or urban councils may be sued in their
full incorporated names.
(c) Statutory bodies e.g Universities
(d) Parastatals e.g ZESA; ZINWA
(e) Companies incorporated under the Companies Act.
(f) Co-operatives incorporated under Cooperative Societies Act
(g) Common law universitas– body which is regarded by common law.

There are three (3) elements to be satisfied:

i. It must have an entity which is distinct and separate from its individual members.
ii. It must have perpetual succession – a life which extends beyond the life of its
members.
iii. It is capable of owning property separately from its members.
See Morrison v Standard Building Society 1932 AD 229.
The respondent was an incorporated building society which brought an action against the
appellant for ejectment from premises situated in Pretoria and for damages. The appellant
consented amongst other things that the defendant had no locus standi. The argument was
dismissed in the TPD. Held: An association of individual does not always require the
special function of the state in order to enable it to hold property or to use its corporate
name whether or not it can depend on the nature of the association, its constitution, its
objectives and activities. The court concluded that the standard for building society have
been formed in 1891 and these activities had not at any time been interfered with. Also, it
possessed the characteristics of a universitas.
Unification Church of Zimbabwe v Kundiona & Ors HCH 94/93
The applicant was seeking to bring certain companies under judicial management pending the removal of the
respondent as directors of the companies. The respondents raised a point in limine (in limine – point raised at
beginning of proceedings) that the applicant had no locus standi. The applicant had been registered in 1977
as a welfare organisation under the Welfare Organisation Act. The Constitution of the applicant gave him
among other powers to purchase and acquire property both movable and immovable and to carry on business
with a view to increasing the revenue of the association and also to institute and defend legal proceedings.
Held: The court found that although conformed to the requirement of common law universitas, the
application should be dismissed because the applicant had not used the name to its constitution described as
the Unified Family. The second reason was that the deponent of the founding affidavit did not have authority
to depose to the affidavit as required by the Constitution. See also Moloi v St John Apostolic Faith Mission
1954 (3) SA 940

a. Partnerships
b. Interested parties -A person must have an interest in the matter to institute proceedings. It has been
described as direct and substantial interest and real interest.
See Zimbabwe Teachers Association & Ors v Minister of
Education and Culture 1990 (2) ZLR 48.
The case involved 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 whether ZTA had locus standi. The question was
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.
See also 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.
a) Locus standi in terms of s85 (1) of the Constitution of Zimbabwe on constitutional
matters.
THE JURISDICTION AND LIMITS THEREOF OF THE
MAGISTRATES COURT

The Magistrates Court is a creature of a “statute”. Its jurisdiction is conferred by Law. Therefore,
for jurisdiction one should refer to the Magistrates Court Act and the respective Civil Rules. It
does not have jurisdiction in any case where such jurisdiction is not expressly conferred on it by
law, specifically statute. See Hatfield Town Council Board v Mynfred 1962 RN 799. The
Magistrates Court has jurisdiction in general and customary law cases subject to geographical,
monetary and subject matter of a case limitations. A Magistrate Court’s jurisdiction is premised on
three aspects; territorial, monetary and cause of action. These aspects demarcate and limit the
jurisdiction of the Magistrates Court.
JURISDICTION BASED ON MONETARY LIMIT
The current monetary limit of claims in the Magistrates Court is $3000 000. In entertaining
claims before it the court’s jurisdiction cannot be ousted merely because the court looked at any
issue that may not be within its jurisdiction. Costs shall not be considered for the purpose of
determining jurisdiction (See s11 (g) of MCA). Further the plaintiffs are not allowed to split one
claim into various summons to bring it within its jurisdiction (See s11 (j) of MCA), however the
plaintiff is allowed to abandon some claim in order to bring within jurisdiction of a Magistrates
court (See s11 (h) of MCA). However, once abandoned the claim becomes extinguished. If the
claim is upheld in part, then abandonment first takes effect against that part which is not upheld.
However, a claim exceeding the jurisdiction of the Magistrates court may still fall under the
Magistrates court if the plaintiff deducts the amount being consented to or admitted as liable to
whether the claim is liquid or unliquidated claim (See s11 (i) of MCA).
S.I 227 of 2020 Magistrates Court (Civil Jurisdiction)(Monetary Limits) Rules, 2020

Nature of matter
Monetary Jurisdiction
Cases founded on liquid documents $3
000 000.00

Actions for delivery or transfer of movable

or immovable property:

maximum value of property

$3 000 000.00

Actions of ejectment: maximum value of right of occupation- $3 000 000.00

Other actions: maximum value of claim or matter in dispute $3 000 00000

Order of arrest tamquam suspectus de fuga:

minimum amount of cause of action $ 50

000.00
Order of attachment which applicant’s security must fall
short of amount of debt
$50 000.00
Order of attachment of person property to found or confirm jurisdiction
minimum amount of claim or value of matter in dispute
$50 000.00
Order for rendering of account: maximum amount of claim
$50 000.00

Order for delivery or transfer of property, movable or immovable

maximum value of property.
$3000 000.00
JURISDICTION BASED ON CAUSE OF ACTION
The cause of action is a set of facts that forms the core of one‘s claim and enable or justify someone to institute proceedings against
another normally called a defendant. The facts need to be necessary or material for the plaintiff to prove its claim or support her/his
rights. See the case of Mackenzie v Farmers Co-operative Meat Industries 1922 AD 16; Cook v Gill LR 8 CP 107. The Magistrates court
has jurisdiction over the following causes of action:

a. Claims based on liquid document- e.g bill of exchange, promissory note, good for, bond, written acknowledge of debt provided it
does not exceed the prescribed amount in terms of the rules.

JURISDICTION BASED ON TERRITORY/GEOGRAPHICAL LOCATION

The Magistrates court has jurisdiction territorially over the following persons:
b. Any person who resides, carries on business or is employed within the province.
c. Any partnership whose business premises are situated in the province or if any member of the partnership resides in the jurisdiction
of the court.
d. On any person who institutes proceedings in the court and any other persons affected by the proceedings instituted in the
Magistrates court.
Any person if the cause of action arose wholly within the province. See also B Ex parte Ministry of Native Affairs 1941 AD 53
See s11(1) (a) of the Magistrates Court Act [MCA].
 LIQUID CLAIMS AND LIQUIDATED CLAIMS.
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. It is a claim of a debt or liquidated demand because it was a fixed amount of money and certain.
The following are examples of a debt or liquid claims:
See Fred & Anor v Keelan 1951 SR 7- A claim for an order declaring property especially hypothecated in a
mortgage bond to be executable (sold in execution). The claim was held to be a claim for a liquidated demand.

i. See also Mohr v Krier 1953 (3) SA 600-The plaintiff was claiming several things- 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. In 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 in the case Standwin Investment Pvt
(Ltd) v Helfer 1961 (4) SA 470.
A claim for the value of goods as an alternative to the return of the goods was held to be a claim for a debt or liquidated demand.
The case involved a claim for the return of a truck failing of which payment of 500 pounds which was the value of the truck.
An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956 RN 148.
Fartis Engineering Co. Ltd v Vendick Spares Ltd 1962 SA (2) 736 TPD. A claim for work done and material supplied was held
to be a claim for a debt or liquidated demand. The same conclusion was reached in International Harvestor v Ferreira 1975 (3)
SA 831 CPD.
Belingwe Stores (Pvt) Ltd v Minyembe 1972 (4) SA 463. A claim for the value of shortfall of stock as per a written undertaking
by the defendant was held to be a claim for a debt or liquidated demand. The defendant was storekeeper for the plaintiff and
signed an undertaking to pay if there is a shortfall.
Brooks & Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA
A claim for confirmation of cancellation of an agreement of sale of certain immovable property and ejectment of defendant from
property was held to be a debt or liquidated demand.

Atlas Assurance Co. Ltd v Goodman 1955 SR 328. A claim based on a foreign judgment 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 000k bricks. This claim was
held not be for damages readily ascertainable and therefore liquidated.
The following are claims that require specific performance and are punishable by contempt of court:

i. 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.
ii. 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.
Claims (a) and (b) although claims for debt or liquidated demand they were also claims for specific
performance and failure to comply with these claims will be punishable by contempt of court as no official
could be substituted for the defendant.
See 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;
(1) A statement of account duly supported by vouchers of all premiums received by the defendant.

(2) The rebate of such account (an assessment of item so as to come to a determination of an amount
owing).
(3) Payment of money owing to the account.
(4) 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
See also 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.

b. In claims for delivery or transfer of movable or immovable property if the value does not exceed
the monetary limit. This is despite the fact that there might be a claim for the cancellation of any agreement
relating to such property.
c. In ejectments actions against the occupier of any house or land or premises provided it’s in
relationship to the right of occupation and the value of the right of occupation does not exceed the monetary
jurisdiction. The value of occupation is obtainable by comparing the rentals of comparable premises – if
there is a difference there will multiply it over unexpired part of the lease. ADD cost of moving. See
Uguahart v Bruce 1974 (1) SA 350. Langham Court Property v Mavromaty 1954 (3) SA 742 TPD
d. In claims for a decree of divorce, judicial separation, or nullity of a marriage
solemnised in terms of the Customary Marriages Act [05:07].
e. Claims for division, apportionment or distribution of the movable and
immovable assets of spouse or former spouse married under the Customary Marriages
Act [CMA].
f. Claim for maintenance of a spouse married under the Customary
Marriages Act or claim for Maintenance in terms of Matrimonial Causes Act [05:13].
g. Claims for guardianship and custody of children marriages solemnized in terms
of CMA.
h. Claims for validity, interpretation, effect of oral wills made in terms of
s11 of the Wills Act provided:
1. the testator of the will concerned was resident within the province when made
the will or when he died or
2. The testator of the will was born within the province
3. The majority by number or value, of the beneficiaries under the will resided
within the province when the testator died
4. The will was made within the province
5. If the will awards an immovable property, such property ought to be situated
within the province.
i. In all actions not stated herein provided they do not exceed the monetary value of the
court provided the defendant consent if not resident in the province.
j. Where the defendant consented in writing provided the statute allows the court to preside
over such a matter.
k. Where there is a written agreement by the Plaintiff and the defendant to have the matter
heard by the court.
l. The court has jurisdiction on two or more combined claims based on different cause of
action provided the court can try or determine each and every claim independently and distinctly
similarly if the any of the claim has been separately brought before the court. Splitting the claim
is not allowed. However, abandonment of party of a claim is allowed.

m. Claims of confirmation of an interdict or arrest granted pendete lite even joined in

summons for another different relief. Each claim will be then determined distinctly.

n. In claims for the balance of an account. However, the court may inquire into and take
evidence if necessary, of the whole account even though such account has contains items and
transactions exceeding the amount of jurisdiction.

o. Claims for arrest tamquam de fuga- No order of arrest tamquam suspectus de fuga shall
be made unless the cause of action appears to amount exclusive of costs to be within the
monetary limits of the court, the applicant appears to have no security for the debt as set in the
rules and if the defendant is about to remove from Zimbabwe. See s12 of the MCA.
p. Claims for interdicts, attachments and mandamentem van
spolie- Confirmations by the court of any attachment or interdict in the
judgment in action shall operate as an extension of the attachment or
interdict until execution or further court order of the court. See s12 of
the MCA.

q. Claims for attachments to find or confirm jurisdictions-A court

may order attachment of a person or property to found or confirm
jurisdiction against a perigrinus provided the court has jurisdiction over
the claim, ie. Having looked at jurisdiction, cause of action and also
monetary value. This excludes the costs. See s13 of the MCA.
r. In cases for adultery claims brought with its monetary
jurisdiction it has powers to establish the fact of the marriage. S14 (1)
(i) (a) of the MCA.

s. In cases of claims for maintenance [legitimate or illegitimate

child] or any inquiry under the Maintenance Act determine the
question of affiliation. S14 (1) (i) (b) of the MCA.
t. In constitutional matters as a referral court. It may refer valid
constitutional matters to the constitutional court on application by a
party. See s175 (4) of the Constitution of Zimbabwe No 20 of 2013.
u. In commercial disputes
COUNTER CLAIMS THAT EXCEED JURISDICTION
Where a defendant’s plea or answer to plaintiff’s claim amounts to a counterclaim and the counterclaim exceeds the
jurisdiction of the Magistrate court, the counterclaim shall not be dismissed. The court if satisfied that the counterclaim
prima facie has reasonable prospects it may make an order for stay of action for a reasonable time to enable the defendant to
institute proceedings in a competent court. The plaintiff may still proceed to become a defendant and file a counter claim in
the competent court. The issue of costs incurred in the Magistrate court will then be dealt with by the competent court. (See
s15 of the MCA).
If the defendant does not act within the period granted by the court for him to file an action in the court of competent
jurisdiction the following may happen on application by plaintiff or defendant:
a. Stay the action for a further reasonable period
b. Dismiss the counterclaim- whether or not the defendant has reduced the amount to the limit of the jurisdiction of the
court, whether the counterclaim is withdrawn.
In the event of abandonment of the counterclaim or the competent court has granted absolution from the instance the
Magistrates court upon application may proceed to dismiss the counterclaim and determine the plaintiff’s claim.
CIRCUMSTANCES WHERE THE MC HAS NO JURISDICTION

The Magistrates Court has no jurisdiction under the following

circumstances:
a. Dissolution of a marriage solemnised in terms of Marriages Act
[Chapter 5:11].
b. Dissolution of any marriage save for the marriage solemnised
in terms of the Customary Marriages Act.
c. Separation from bed and board or of goods of spouses of a
marriage solemnized in terms of the Marriages Act [05:07].
d. A declaration of nullity in relation to a marriage solemnized in
terms of Marriages Act [05:11].
e. The validity or interpretation of a written will or any other
testamentary document in question.
f. The status of a person in respect of mental capacity is sought to
be affected
g. An order for specific performance without an alternative for payment of
damages.
h. The rendering of an account in respect of which the claim does exceed
the monetary limit of the court.
i. The delivery or transfer of property movable or immovable exceeds the
monetary jurisdiction of the court.
j. An order for a decree of perpetual silence.
k. Provisional sentence
l. Where the order for a declarature is sought as to existing rights, future
or contingent right or obligation without a consequential relief of such a
declaration.
m. In interpreting oral wills , or establishing validity of a will made in terms
of s11 of the Wills Act if none of the factors in section 14 (2) of the
Magistrates Court exist.
n. In counterclaims that exceeds the monetary jurisdiction of the
Magistrates Court.
See S14 (1) and (2) of the Magistrates Court Act.
ACTION PROCEDURE
Summons (Order 8 of S.I 11 OF 2019)

Summons commences action procedure. See O8R1. The summons is supposed

to be in form CIV4 {Order 1 Rule 4(1)}. The summons should call upon the
defendant to enter appearance to defend {see Order 8 Rule 2 (a)}. The
defendant will have 7 days to enter an appearance to defend if he/she resides
within the jurisdiction of the court and 14 days if residing outside the
jurisdiction of the court {See O 8 R (2)}. The summons is issued by the clerk of
court and it is mandatory for the summons to bear the date of issue {O8 R (1)
(3)}.The original summon is retained by the office of the clerk of court {O 8 R
(1) (4)} and is signed by a Legal Practitioner or the plaintiff although in the
case of Municipality, company, or other incorporated bodies it is signed by the
officer responsible and in the case of partnership or group of persons
associated for a common purpose it is signed by a member nominated by
others to sign the summons {See O 8 R 2(1) as read with O 4 R1}.
CONTENTS OF THE SUMMONS

The summons should include the following:

• The particulars of claim. O8R2(1)
• The plaintiff’s Christian name and surname, occupation and residence or place
of business of the plaintiff {O8R 4 (c)}.
• Address for service and postal address. See address for service and postal
address {O 8 Rule 2 (2) and (3)}.
• Dies induciae -Order 8 Rule 1 (2) as read with Order 1 Rule 5 (2)
• Where the Plaintiff is suing as a cessionary, he/she should state its name,
address and description of the cedent, attach the deed of cession and proof of payment
{O8 R4 (d)}.
• The summons should describe the defendant, the surname and where known
his/her Christian name or initials and occupation which the defendant is known of to the
Plaintiff, the residential address, place of business or employment (O 8 R4)
• Where the defendant is being sued as a representative, the capacity which
he/she is being sued.
• Where the summons are for a claim based on instrument presentment, the fact
and date of presentment.

Summons with automatic rent interdict – section 38(1) of the Act and Form Civ 8
ISSUING
• Issued by the clerk of court {Order 8 Rule 1(3)}
• Issuing involves;
 Allocation of a case number {Order 3 Rule 1(1)}
 Signing
 Stamping with the official stamp
SERVICE OF PROCESS (ORDER 7)

• Summons must be served by the Messenger of Court or his/her Deputy, or by

a person temporarily appointed as messenger by the magistrate or by a police officer
(in cases where no messenger of court has been appointed) – sections 10 (3) and (5)
of the Act and {Order 7 Rule 3 (1}). Failure to comply with this requirement
invalidates the service. Wattle Company (Pvt) Ltd v Inducom (Pvt) Ltd 1993 (2) ZLR
108.
• Process is valid throughout Zimbabwe and can be served by any messenger –
s23 of the Act.
• Service of process which does not require service by the messenger of court
can be done by the parties themselves {Order 7 Rule 3 (2)}
• Messenger of court may call upon any police officer to assist him or her if he or
she meets with resistance in serving process – (Order 2 Rule 2)
• Police officer must assist if requested – Commissioner of Police v Rensford and
Another 1984 (1) ZLR 202.
• Manner of service. See Order 7 Rule 5
Process in relation to a claim for an order affecting the liberty of the person shall be
served by delivery of a copy thereof to that person personally.
Other process not affecting the person’s liberty can be affected in the following ways:
1) Personal delivery to that person or his duly authorised representative or through
electronic mail
2) Delivery to a responsible person at the Residence or place of business or employment
of the person on whom the service is to be effected or at his chosen address for service
3) In case of process other than summons or an order of court, by delivery to that
person’s legal practitioner
4) Delivery to the person of the body corporate at the corporate place of business or
registered office e.tc Read the entire Rule 5 of Order 7.
• Delivery at physical address – {Order 7 Rule 5 (2) and Rules 6 and 7}.
 Service of process affecting liberty must be personal – {Order 7 Rule 5 (1)}.
 Postal service – (Order 7 Rule 8).
• Proof of service ( see Order 7 Rule 10 (a) and Form CIV 6A; (
• Return of service by Messenger or Deputy or police officer is prima facie evidence of
facts stated therein – section 24 of the Act, Gundani v Kanyemba 1988 (1) ZLR 226 (S)
• Service of process in proceedings against the state – Order 7 Rule 17.
• Substituted service (Order 7 Rule 14).
SUMMARY PROCEDURES
DEFAULT JUDGEMENT-O.11

Default of appearance or plea

• Plaintiff may apply for default judgment in default of appearance to defend or of plea
• Where there is default of appearance, plaintiff may proceed to file for default judgment (Order 11 Rule
2)
• Where there is default of plea, plaintiff must first deliver notice to plead before proceeding to file
request for default judgment (if there is no response from the defendant) – (Order 11 Rule 3)
• The procedure for requesting default judgment involves the following:
 Written request for default judgment – Form CIV 9
 Original liquid document required – {Order 11 Rule 4 (7)}
 Claims for damages require evidence. The plaintiff may file affidavit and supporting documents –
{Order 11 Rule 4 (5)}
In cases of defective appearance to defend, the clerk of court will require the plaintiff to give the defendant
written notice to rectify the defect and the defendant has 5 days of receipt of such notice to deliver a
memorandum of entry of appearance in due form {Order 11 Rule 4 (2) (a)-(d) and (3)
• No judgment in default of appearance in cases where summons was served by registered post unless
there is proof of delivery {Order 11 Rule 4 (4)}
• Default judgment entered by clerk of court (Order 11 Rule 4(1) (b) or matter referred to the court.
• Referred to court in the following circumstances:
 Where claim is for damages – Order 11 Rule 4(5)
 Where claim is based on a hire-purchase agreement – Order 11 Rule 4 (6)
 Where clerk of court uses his/her discretion to refer – Order 11 Rule 4 (8) (a)
• In cases of multiple defendants, action may proceed against non-defaulting defendant(s) {Order 11
Rule 4 (9)}.
JUDGEMENT BY CONSENT [ORDER 11]
• Consent is in writing – {Order 11 Rule 1(1) (a)}
• Defendant may consent to part of the claim – {Order 11 Rule 1(1) (b)}
• If consents to part of the claim, defendant may enter appearance to defend the balance –
{Order 11 Rule 1(4)}
• Not necessary to serve summons if defendant consents before instructions to serve – Order
11 Rule 1(2)
• Defendant not liable for judgment costs if consents within the dies induciae –{Order 11 Rule
1(3)}
• Original liquid document must be filed by plaintiff before judgment by consent is entered
{Order 11 Rule 4 (7)}
Requisites of a liquid document:
 Must sound in money
 Must be signed by the debtor or authorised representative or deemed by law to be
acknowledged
 Amount of the debt must be fixed and definite and appear on the face of the document.
NB/ no extrinsic evidence allowed.
See section 11(1) (b) (i) of the Act for examples.

• Clerk of court enters judgment by consent – Order 11 Rule 4 (1) (a)

• Clerk of may court refer to court if he/she has doubts on consent {Order 11 Rule 4 (8) (b)}
See Washaya v Washaya 1989 (2) ZLR 195 (S) on duty of defendant’s legal practitioner. N.B/. Case
from High Court where the equivalent provision is worded differently.
• In cases of multiple defendants, action may proceed against non-consenting defendant(s)
PAYMENT IN COURT [ORDER 13]

• Defendant can make a payment into court at any time after service of summons
• Payment into court can be unconditional payment of the full claim – {Order 13 Rule 1} or
payment of part of the claim as an offer of settlement made without prejudice – {Order 13 Rule 2
(1)}.
• Defendant must notify the plaintiff of the payment into court in writing – {Order 13 Rule
3}.
• Unconditional payment into court results in automatic stay of action except for recovery of
costs not included in the payment {Order 13 Rule 1}.
• Plaintiff can either accept or reject a payment into court in offer of settlement.
• Plaintiff accepts payment into court in offer of settlement by a written request to the clerk
of court for payment to him/her of the amount paid into court {Order 13 Rule 2 (2)}.
• Request must be made within 7 days of receipt of notice of payment – {Order 13 Rule 2
(2)}.
• Proceedings are stayed upon acceptance of payment by plaintiff except for recovery of
costs not included in the payment {Order 13 Rule 2 (2)}.
• A plaintiff who accepts payment into court is entitled to recover costs incurred up to the
time of payment into court. The same applies where there is unconditional payment into court.
Exception: Where payment was in offer of settlement and the defendant indicated that his offer
was inclusive of costs {Order 13 Rule 5}.
PAYMENT INTO COURT (TENDER)-O.13

• A defendant who pleads tender must pay into court the amount tendered if such amount has not yet
been paid to the plaintiff {Order 13 Rule 7}.
• Differences between tender and payment into court in offer of settlement include;
 Tender can be made before institution of proceedings.
 Tender must be pleaded.
 Tender includes admission of liability.

An amount paid into court as offer of settlement or tender (and not accepted by the plaintiff) will only be paid
out upon:
 Judgment by the court declaring who is entitled to it{Order 13 Rule 8 (a)}or
 The written consent of the parties {Order 13 Rule 8 (b)}.
• In claims for damages, the fact that there has been payment into court in offer of settlement or tender
(rejected by plaintiff) should not be disclosed to the court until the court has pronounced judgment on the claim
(issue of liability and the amount due, if any) (Order 13 Rule 9)
• Facts will be disclosed before an order of costs is made.
• In all cases, plaintiff shall be penalised in costs if he/she fails to recover more than the amount that
was offered in settlement or tendered (Order 13 Rule 6)
• Unclaimed money paid into court will be returned to the defendant after one (1) year unless the matter
has been set down for trial {Order 13 Rule 10 (1)}
• Will be paid into the Guardian’s Fund if defendant cannot be found {Order 13 Rule 10 (2)}.
EXCEPTION TO SUMMONS OR PLEA-O.14

• Definition: An exception does not raise a defence on the merits but raises a
technical objection to the pleading on the grounds that it is bad in law either because
it does not disclose a cause of action or because it does not disclose a defence.
• Purpose: To force an amendment so that the pleading properly reflects the
cause of action or defence or, failing this, to dispose of the claim or defence.
• Grounds of exception:
• Failure to disclose a claim or defence through:
• Making a claim or defence which is not acceptable at law or omission of an
essential element of the cause of action or defence, see A. Lane v Eagle Holdings (Pvt)
Ltd S-126-1985
• The pleading being vague and embarrassing to an extent that the excepting
party does not know the case he or she has to answer. Vagueness or embarrassment
must go to the root of the claim or defence otherwise must seek further particulars or
apply to strike out. Salzmann v Holmes 1914 AD 152
• Exception to summons heard together with application for summary
judgment or set down separately if no application for summary
judgment – (Order 14 Rule 7).
• Exception to plea may be set down for hearing by either party – (Order
16 Rule 15).
• Court will not grant exception unless can prove prejudice – Order 14
Rule 5 (1) (exception to summons) and Order 16 Rule 12 (1) (exception
to plea).
• Can apply for amendment if exception granted – (Order 14 Rule 8 and
Order 16 Rule 16)
• Dismissal of claim (Order 14 Rule 8) or judgment for plaintiff (Order
16 Rule 16) if exception granted and no application for amendment or
application for amendment refused.
• Matter proceeds normally if exception dismissed.
EXCEPTIONS TO SUMMONS [ORDER
14]
Grounds of exception to summons – (Order 14 Rule 2)
The defendant may except to the summons on one or
more of the following grounds only;
(a) That it does not disclose a cause of action.
(b) That it is vague and embarrassing.
(c) That it does not comply with the requirements of
order 8.
(d) That it has not been properly served.
(e) That the copy served upon the defendant differs
materially from the original
SPECIAL PLEAS [ORDER 16]
 This type of plea does not raise a defence on the merits but sets out some special or
technical defence.
 The purpose is to delay proceedings (dilatory/plea in abatement) or to put an end to
(quash) proceedings (declinatory/ plea in bar).
• Essential difference between special and exception;
 Defence raised by special plea may be established by evidence outside the summons;
On exception the defence raised must appear ex facie the summons i.e. no extrinsic evidence
allowed
• Examples of special pleas
• Declinatory
– Lack of jurisdiction
• Res judicata (Mvaami (Pvt) Ltd v Standard Finance Ltd 1976 (2) RLR 257; Flood v
Taylor 1978 RLR 230; Owen-Smith v Owen-Smith 1981 ZLR 514; Kawondera v Mandebvu S-12-
2006
• Prescription (Prescription Act, Chapter 8:11)
Examples of special pleas continued
• Dilatory
• Lis alibi pendens
• Lack of locus standi in judicio i.e. legal capacity to institute proceedings (Edward v
Woodnutt NO 1968 (4) SA 184 (R)
PROCEDURE

– It must be delivered within same time frame as

ordinary plea
– There must be a set down for hearing – (Order
16 Rule 9)
SUMMARY JUDGMENT [ORDER 15]

• Purpose is to enable a plaintiff with a clear and unanswerable claim to obtain judgment
without the expense of a trial – Beresford Land Plan v Urquhart 1975(1) RLR 260 or 1975
(3) SA 619
• It denies the defendant the benefit of the fundamental principle of audi alteram partem
therefore it is only granted for clear claims – Chrismar v Stutchbury and Another 1973 (1)
RLR 277
• Available for any one or combination of the following claims:
 Claim based on a liquid document.
 Claim for a liquidated amount.
 Claim for specified movable property.
 Claim for ejectment.
Order 15 Rule 1 (1) (a) – (e)
• Procedure for applying for summary judgment involves:
 Written application on seven (7) days’ notice delivered not more than seven (7) days after
appearance to defend – Order 15 Rule 1(2)
 Affidavit required if the claim is illiquid – Order 15 Rule 1(2)(a)
 Copy of liquid document required if claim is based on a liquid document – Order 15 Rule 1(2)(b)
• Options available to defendant upon application for summary judgment:
 Pay into court – Order 15 Rule 2(1)(a)
 Give security – Order 15 Rule 2(1)(b)
 Satisfy the court by affidavit that he/she has a good prima facie defence
• Meaning of good prima facie defence:
 Triable issue of fact – must allege facts which would constitute a valid defence to the claim if he
succeeded in proving them at trial – Rex v Rhodian Investments Trust (Pvt) Ltd 1957 (4) SA 632
(SR)
 Triable (arguable) issue of law – Shingadia v Shingadia 1966 RLR 285
• Application of good prima facie defence requirement:
– Jena v Nechipote 1986 (1) ZLR 29
– Dickson v Addison S160/87
• Summary judgment will be entered (in default) if the
defendant does not respond to the application for summary
judgment – {Order 15 Rule 3(1)}
• No evidence may be adduced by the plaintiff at the hearing of
the application for summary judgment. The plaintiff’s case will rest
on the affidavit filed in support of the application for summary
judgment or the liquid document sued upon – {Order 15 Rule 2 (2)
(a)}
• The plaintiff may cross-examine the defendant’s witness(es) if
the defendant gives oral evidence – {Order 15 Rule 2 (2) (b)}
• Court will give leave to defend if defendant pays into court or
gives security or satisfies the court that he/she has a good prima
facie defence to the claim – {Order 15 Rule 3 (2)}.
• Leave to defend part of the claim may be granted where the
defendant satisfies the court that he/she is entitled to defend part
only – {Order 15 Rule 5(b)}
• In cases of multiple defendants, leave to defend may be
granted to one and not the other(s) – {Order 15 Rule 5 (a)}
EXCEPTION TO PLEA-O.16

Grounds of exception to plea – (Order 16 Rule 11)

A plaintiff may except to the plea on one or more
of the following grounds only;
(a) That it does not disclose a defence to the
plaintiff’s claim.
(b) That it is vague and embarrassing.
(c) That it does not comply with the requirements
of Order 16.
PRE-TRIAL PROCEDURES

FURTHER PARTICULARS [Order 12]

• Three (3) types of requests for further particulars:
 Request for copies of documents on which the claim is founded – Order 12 Rule 1; Estate Late Zagorie v Lategan 1945 CPD
360.
 Request for particulars to any pleading for purposes of pleading – (Order 12 Rule 2)
 Request for particulars to any pleading for purposes of preparing for trial – (Order 12 Rule 3)
See Order 12 Rule 4 for definition of ‘pleading’

HOW MUCH PARTICULARS?

 The Citizen (Pvt) Ltd v Art Printing Works Ltd 1957 (3) SA 383 (R) or 1957 R&N 500.
 Time Security (Pvt) Ltd v Castle Hotel (Pvt) Ltd 1972 (3) SA 112 (RAD) or 1972 (1) RLR 155 (A).
 Motaung v Federated Employers Insurance Company Ltd 1980 (4) SA 274 (WLD).

What happens if request for further particulars is not complied with?

– Total non-compliance – application for an order compelling delivery of further particulars (Order 33 Rule 1(2).
– Inadequate particulars – request for further and better particulars.
• Consequence of failure to comply with an order compelling delivery of further particulars:
– Dismissal of plaintiff’s claim
– Default judgment against defendant
{Order 33 Rule 1(3) (a)}
PLEA (ORDINARY)
Plea – Time for delivery
• Defendant must deliver plea within 7 days after:
(a) Entry of appearance; or
(b) Delivery of documents or particulars in terms of rule 1 or 2 of Order 12; or
(c) If application for summary judgment is made, the dismissal of such application; or
(d) The making of an order giving leave to defend; or
(e) if exception or motion to strike out is set down for hearing in terms of rule 7 of
Order 14, the dismissal of such exception or motion; or
(f) Any amendment of the summons allowed by the court at the hearing of such
exception or motion;
PLEA – FORM AND CONTENT {Order 16 Rule 1(1)

• Must be dated and signed by the defendant or his legal representative

– {Order 16 Rule 1(2)}
• Must not be a bare denial – (Order 16 Rule 4)
• Plea of tender must comply with Order 16 Rule 5
• Plea must admit or deny or confess and avoid all the material facts
alleged in the summons {Order 16 Rule 2 (a)}
• Examples of confession and avoidance:
 Plea of tender
 Set – off
• Nature of defence and material facts on which it is based must be
stated – {Order 16 Rule 2 (b)}
• Presumptions in relation to admission and denial of facts – (Order 16
Rule 7)
REPLY [Order 17]

• Definition: Plaintiff’s response to the allegations of fact contained in the

defendant’s plea.
• Not necessary unless the defendant raises new facts in his/her plea.

Procedure

• Must be delivered within 7 days after delivery of the plea or further

particulars to the plea (Order 17 Rule 1)
• Presumption of denial of facts alleged in the plea if plaintiff does not
deliver reply timeously – (Order 17 Rule 3)
• Rules on plea apply mutatis mutandis to reply – (Order 17 Rule 2)
CLOSE OF PLEADINGS [Order 17]
• Pleadings closed upon delivery of reply or 7 days after delivery of plea if no reply –
(Order 17 Rule 4).

DISCOVERY OF DOCUMENTS [Order 18]

• The purpose is to enable parties to know the documents that are relevant to the
action that are in their opponent’s possession or control thus avoiding surprise or
trial by ambush.

Procedure
• Written notice to make discovery after close of pleadings – {Order 18 Rule 1(1)}
• Party receiving notice must respond within 7 days by delivering a schedule of
documents – {Order 18 Rule 1(2)}.
• Schedule should separately list documents for which privilege is claimed (Order 18
Rule 1(3) (a) and state the grounds on which privilege is claimed {Order 18 Rule
1(3) (b)}.
PRE-TRIAL CONFERENCE (PTC)
Its purpose is to reach out of court settlement or if no settlement then to identify the issues for trial and agree
on ancillary issues. PTC can be convened in 4 ways;
I. By parties themselves at a mutually convenient time and place – {Order 19 Rule 1(1)}.
II. Before a magistrate by consent of the parties – {Order 19 Rule 1(3)}
III. By the clerk of court (to be held before a magistrate) on the instructions of a magistrate {Order 19
Rule 1(4)}.
IV. As directed by a magistrate upon application by any party – {Order 19 Rule 1 (6)}

Issues to be discussed include, inter alia,

• Attempt to reach out of court settlement on all or any matters in dispute.
• Identification (definition) of the real issues for trial.
• Obtaining of admissions of fact and documents.
• Estimation of the probable duration of the trial.

Arrangement for the services of an interpreter if needed Order 19 Rule 1(2)}.

• Pre-trial conference minute:
 Drawn by the parties if they hold the pre-trial conference on their own – {Order 19 Rule 1(7)}
 Drawn by the magistrate if pre-trial conference is held before a magistrate – {Order 19 Rule 1(10)}.
• Settlement of any matter in dispute:
– Magistrate may make order embodying the terms of settlement upon application by the parties –
{Order 19 Rule 1(8)}.
• Default at pre-trial conference before a magistrate or failure to comply with directions given by a
magistrate results in dismissal of claim or default judgment – Order 19 Rule 1(11).
TRIAL PROCEDURES

Set Down for Trial [Order 19]

• Plaintiff delivers notice of appeal on dates approved
(provided) by the clerk of court {Order 19 Rule 2 (1)}.
• Defendant can deliver notice of trial if plaintiff fails to
do so within 14 days after the pre-trial conference.
• Delivery of notice of trial shall ipso facto operate to set
down ant counterclaim – {Order 19 Rule 2 (2)}.
ORDER OF PRESENTATION OF EVIDENCE

• Determined by burden of proof as reflected by the pleadings and

based on the principle that “he (she/it) who alleges must prove”.
• Plaintiff adduces evidence first if burden of proof is upon
him/her – {Order 19 Rule 6 (1) (a)}.
• Defendant adduces evidence first if burden of proof is upon
him/her – {Order 19 Rule 6 (2) (a)}.
• Where the burden of proof is shared – {Order 19 Rule 6 (3)}.
• Where there is a dispute as to the party on whom the burden of
proof rests, the court directs {Order 19 Rule 6 (4)}.
TRIAL [ORDER 19]

• Venue: Trial takes place at court-house from which the summons was issued unless the
court orders otherwise – Order 19 Rule 3 as read with section 5(4) of the Act.
• Language and public access: Proceedings to be in English and in open court – section 5
(2) (a) of the Act. Court may restrict access in terms of the Courts and Adjudicating Authorities
(Publicity Restriction) Act, Chapter 7:04.
• Witnesses must not be present in court before they give evidence. However, the
presence in court of a witness before testimony does not affect the admissibility of his/her
evidence but its credibility.
 Order 19 Rule 4
 S v Ntanjana 1972 (4) SA 635 (E)
• Court may require parties to deal with one issue first and dispose of the whole matter
on that issue – {Order 19 Rule 5(2)}
• Court may dispose of matter on issue of law without hearing evidence – {Order 19
Rule 5(4)}
• If the dispute is a question of law and the parties are agreed on the facts, the facts
may be admitted without evidence and the court may then proceed to deal with the dispute of
law – Order 19 Rule 5(3)
ENFORCEMENT OF JUDGMENTS

• Method of enforcement depends on the type of judgment.

• Judgment for payment of money enforced by:
o Warrant/writ of execution against property – sections 20 – 25 of the
Act and Order 26 of the Rules.
o Garnishee order – section 33 of the Act and Order 29 of the Rules.
Civil imprisonment – sections 26 – 32 of the Act and Order 28 of the
Rules
ENFORCEMENT METHODS
•
• Judgment of ejectment enforced by warrant/writ of ejectment {Order 26 Rule 1 (1) (c)}
• Judgment of delivery of property enforced by warrant/writ of delivery – {Order 26 Rule 1(1)
(b)}.
• Order ad factum praestandum enforced by contempt of court (civil) proceedings

LAPSE AND PRESCRIPTION OF JUDGMENT

• Judgment lapses after 2years from the date of judgment – section 20 (4) of the Act.
• Judgment becomes prescribed after 30 years from the date of judgment – section 15 (a) (ii) of
the Prescription Act, Chapter 8:14.
WARRANT/WRIT OF EXECUTION [ORDER 26] READ WITH S20-25 OF THE
MAGISTRATE COURT ACT

The following property is exempt from execution:

• Necessary beds, bedding and clothes of the judgment debtor and his/her family.
• Necessary furniture and household utensils up to a prescribed maximum value.
• Supply of food and drink for one (1) month.
• Necessary tools and implements of trade, tools of cultivation of land up to a prescribed maximum value.
• Professional books, documents or instruments necessary to the debtor’s calling up to a maximum prescribed value.
See Section 25 of the Act)
• Must execute against movable property before proceeding against immovable property – section 20 (1) of the Act;
Kanyanda v Mazhawidza and others 1992 (1) ZLR 229 (SC).
• Warrant of execution should not be issued before the day following that on which judgment is given except where
judgment was by consent or default – Order 26 Rule 1(7).
• Immovable property which is subject to a preferent claim, e.g. a mortgage bond, must not be subjected to execution unless:
 The preferent creditor has been served with personal notice of the intended sale in execution.
 The proceeds of the sale (will be) sufficient to meet the preferent creditor’s claim in full or the preferent creditor
confirms the (intended) sale in writing.
Section 20 (2) of the Act
WARRANT OF EXECUTION (PROCEDURE – MOVABLE PROPERTY)

• Warrant issued by the clerk of court – {Order 26 Rule 1(1) (a)}.

• Execution creditor to furnish security to the messenger of court – (Order 26 Rule 2).
• Messenger of court serves warrant on judgment debtor and gives notice of attachment and notice of removal –
Order 26 Rule 4A (1) as read with Rule 5 (1) – (5).
• Messenger of court removes attached property to a secure place – {Order 26 Rule 5 (7)}
• Sale of property advertised – {Order 26 Rule 5 (12)}.
• Notice of sale in execution displayed at court house – {Order 26 Rule 5 (13)}.
• Property sold publicly to the highest bidder – {Order 26 Rule 5 (10)}.
• Notice periods may be reduced if attached property is perishable or judgment debtor consents – {Order 26 Rule 5
(15)}.
• Sale to be stopped as soon as sufficient money to satisfy the warrant and costs of sale has been realised – {Order 26
Rule 5 (16)}.
• Costs of execution shall be a first charge on the proceeds of the sale in execution unless the court orders otherwise –
{Order 26 Rule 3 (1)}.
• Messenger of court provides return of service upon completion of sale in execution to which he/she attaches a
statement of details of the property sold, the purchasers and the distribution of the proceeds – {Order 26 Rule 3 (8)}.
WARRANT OF EXECUTION (PROCEDURE)

Special Rules on attachment of leases and negotiable instruments (Order 26 Rule 6)

WARRANT OF EXECUTION (PROCEDURE FOR IMMOVABLE PROPERTY)

Special Rules on execution against immovable property including description of the property to be attached (in
the warrant), mode of attachment, persons on whom the warrant is to be served, manner of sale (by public
auction), transfer of the property upon sale, manner of distribution of proceeds of sale, etc. (Order 26
Rule 7)
Special Rules on attachment of a dwelling – (Order 26 Rule 8)

WARRANT OF EXECUTION (GENERAL)

If attached the property is claimed by a third party:

 Messenger of court shall give notice of the claim to the execution creditor – {Order 26 Rule 3 (6)}.
 Execution creditor should notify the messenger of court within 7 days if he/she admits the claim {Order 26
Rule 3 (7)}.
 Messenger of court will institute interpleader proceedings if the execution creditor rejects the third party’s
claim – {Order 27 Rule 1 (1) (b)}.
GARNISHEE ORDERS [ORDER 29] READ WITH S33 MCA

This is an order directing payment of a judgment debt by a third party (garnishee) who owes the judgment debto
some money. Payment may be lump sum or through periodic deductions from the judgment debtor’s salar
(subject to section 33 (6) of the Act).
• Preliminary notice required where the garnishee is the state
• The notice must be served on the specified officials – Director SSB, Head of Ministry or Department or Force
Chief Paymaster ZNA, Secretary to Parliament as the case may be, Order 29 Rule 1(1) (a).

PRELIMINARY NOTICE

Director SSB or Chief Paymaster ZNA as the case may be will respond to notice with own notice setting forth:
• The amount of money that is or will be owed to the judgment debtor as salary or wages.
• The amount and nature of any deductions required to be made from such salary or wages.
• The earliest date from which payment may be made in terms of a garnishee order.
(Order 29 Rule 1(1) (c)
PROCEDURE

• Ex parte application supported by affidavit – Order 29 Rule 1 (1) as

read with Order 29 Rule 1 (2).
• Where application is against the state, notice from the Director SSB
or Chief Paymaster ZNA as the case may be must be annexed to the
affidavit – {Order 29 Rule 1(3) (a)}
• Where application is to a court other than that in which judgment was
given, a certified copy of the judgment shall be annexed to the
affidavit – {Order 29 Rule 1 (3)}
CIVIL IMPRISONMENT [ORDER 28] READ WITH S26-32
MAG CRT ACT
• Available where the judgment debt has remained unsatisfied for 7 clear days or the judgment
debtor has admitted that he/she has no attachable property in open court or the messenger of
court has given a nulla bona return of service – section 26 (1) of the Act.
• Not meant to punish the judgment debtor for failing to pay the debt but is meant to force the
debtor, who has the means to pay the debt but is unwilling to do so to pay.
PROCEDURE

• Clerk of court issues summons for civil imprisonment {Order 28 Rule 1(1)}.
• Summons served on the judgment debtor personally by the messenger of court because it affects liberty – {Order 7 Rule 5(1)}.
• The summons calls upon the judgment debtor to appear in court on a date specified in the summons (the return day) to show
cause why a decree (order) of civil imprisonment should not be made against him/her.
• On the return day, the court will conduct an inquiry into the judgment debtor’s failure to pay {Order 28 Rule 1A (1)}.
• The court may receive oral or written evidence in the inquiry – {Order 28 Rule 1A (2)}.
• In conducting an inquiry, the court takes into account the factors listed in section 27 of the Act and Order 28 Rule 1B (2).
• The court will grant the decree of civil imprisonment if it is satisfied that the judgment debtor has the means to satisfy the
judgment debt – Order 28 Rule 1B (1) (a).
• Decree will also be granted if the judgment debtor is in default (proviso to Order 28 Rule 1A (1).
• The warrant for civil imprisonment directs the messenger or court to arrest the judgment debtor and lodge him/her in a specified
prison
• The officer in charge of the prison must receive the judgment debtor and retain him/her according to the warrant.
• The judgment debtor will be released if the judgment creditor does not pay for his/her upkeep – section 32 of the Act.
• Decree of civil imprisonment may be suspended if the judgment debtor offers to pay the debt in instalments – section 28 (1) of
the Act.
• The judgment creditor may apply for a warrant for civil imprisonment if the judgment debtor defaults in his/her instalments
(Order 28 Rule 3).
CIVIL IMPRISONMENT (SUPERANNUATION OF DECREE)

• Decree of civil imprisonment becomes superannuated (lapses) after 2 years from the date of the decree or the date of the last
payment but it can be revived in the same way as a judgment; see section 29 of the Act.
• Any warrant issued under a decree that has become superannuated lapses with the decree R v Chakanetsa 1968 (4) SA 92 (RA).

CONTEMPT OF COURT (SECTION 71 OF THE MAGISTRATE COURT ACT)

A person is in contempt of Court if he or she:

 Wilfully insults the Magistrate during his or her sitting, or any messenger or clerk or any other officer of court during his
attendance
 Wilfully interrupts the proceedings
 Being a witness and refusing to answer questions it is lawful for a police officer or private person under the warrant issued by
the Magistrate by warrant under his hand impose on the offender a fine not exceeding level three or commit him to prison for a
period not exceeding one month, or impose such a fine on him and commit him to prison for such a period.
 Fails to comply with a court order, the Magistrate may impose on the offender a fine not exceeding level five or commit him to
prison for a period not exceeding 6months ,or impose the fine and commit him to prison for a period not exceeding 6months.
APPEALS AND REVIEWS.

RIGHT OF APPEAL [Order 31]

• Parties may lodge written agreement with court that judgment shall be final;
see section 40 (1) of the Act as read with Order 31 Rule 7.
• The following judgments are appealable:
 Judgment for the plaintiff.
 Judgment for the defendant.
 Judgment of absolution from the instance.
 Judgment refusing rescission, variation or correction of judgment.
 Any rule or order having the “effect of a final and definitive judgment”.
 Judgment overruling an exception (where parties consent, or in conjunction
with the principle case or where it includes an order as to costs).
See Section 40 (2) of the Act as read with sections 18 and 39
Meaning of “final and definitive effect”
Steytler NO v Fitzgerald 1911 AD 295, Globe and Phoenix v Rhodesian Corporation Ltd
1932 AD 142
PROCEDURE FOR NOTING

• Starts with written request for (written) judgment accompanied by the prescribed fee. The request should be made within 7
days after judgment {Order 31 Rule 1(1)}.
• Magistrate must deliver written judgment to the clerk of court within 14 days of request {Order 31 Rule 1(1)}.
• A written judgment must set out:
 The facts found to be proved.
 The reasons for judgment.
{Order 31 Rule 1(1) (a) and (b)}
• Magistrate must date the judgment and clerk of court must date stamp it – Murawa v Valeta 1996 (1) ZLR 1 (SC)
• Clerk of court must notify the party who applied for the written judgment of its availability forthwith – {Order 31 Rule
1(2)}.
• An appeal must be noted within:
 21 days after the date of judgment.
 14 days after delivery of the written judgment to the clerk of court by the magistrate whichever is longer.
{Order 31 Rule 2(1)}
• Appellant must seek condonation of late noting of appeal if out of time – Murawa v Valeta 1996 (1) ZLR 1
(SC).
• Appeal noted by:
 Delivery of notice; and
 Giving security for the respondent’s costs (prescribed amount) or written undertaking to pay (if accepted by the
clerk of court).
(Order 31 Rule 2(2)
• Notice of appeal must state:
 whether the whole or part only of the judgment or order is appealed against and, if part only, then what part;
and
 The grounds of appeal, specifying the findings of fact or rulings of law appealed against.
(Order 31 Rule 2(4) (a) and (b)
• Respondent may abandon the judgment appealed against wholly or in part except in defamation or seduction
cases – section 41 of the Act as read with Order 31 Rule 6
• Respondent may cross-appeal – {Order 31 Rule 2 (3)}
• Magistrate to give reasons for judgment that specifically address the findings of fact and/or any ruling of law
appealed against – Order 31 Rule 3 (1) (a)–(c).
• Clerk of court to prepare record as soon as reasonably possible after noting of appeal and lodge it with the
Registrar of the High Court – {Order 31 Rule 5 (1)}.
• Requirements for the format of the record are set out in Order 31 Rule 5 (2) (10).
EXECUTION PENDING APPEAL

• The MC may order execution of the judgment despite the

noting of an appeal upon application by the judgment creditor –
section 40 (3) of the Act.
• Court takes into account the following factors in deciding
whether to permit execution pending appeal or not:
 Possibility of irreparable harm or prejudice.
 The prospects of success on appeal.
 Balance of hardship.
Dabengwa and Another v Minister of Home Affairs and Others
1982 (1) ZLR 61 (HC
REVIEWS O31
PREPARATION AND LODGING OF REVIEW RECORD

O 31 Rule 7 – The clerk of the court whose proceedings are being brought on review shall within 12
days of the date of service of the application for review lodge with the Registrar of the High Court the
following:
1) The original record
2) Two typed copies, which shall be certified as true copies and correct copies.
 Each copy of the record shall be clearly typed on A4 size doubled spaced in black record ink and
on side of the paper should be typed.
 Each copy of the record must be paginated from the 1 st to the last document whether they contain
evidence or not.
 Each page containing evidence must have the name of the witness who gave evidence.
N.B subsections (2) - (10) of Rule 7 contain more requirements which the copies lodged with the
Registrar must comply with.
Referral to the Constitutional Court. (Order 33 MC Rules )
A magistrate can refer a matter to the Constitutional Court mero motu in terms of section 175 (4) of the
Constitution.

MC Rules O33 R 5 (1) if the Magistrate wishes to refer the matter to the Constitutional Court he shall:
 Request parties to make submissions on the constitutional issue or question to be referred for
determination
 State the specific constitutional issue or question he or she considers should be resolved by the
Constitutional Court
A magistrate may be requested by a party to refer the matter to the Constitutional Court, the magistrate can
refer the matter if he or she doesn’t find the matter frivolous and vexatious.(R2)

The application to the Constitutional Court shall be made:

 in Form CCZ 4
 shall be accompanied by a copy of record of proceedings
 affidavits or statements from the parties setting out the argument they seek to make before the Court (R3)
The magistrate shall direct the Clerk of Court to prepare and transmit the record of
proceedings to the Registrar of the Constitutional Court within 14 days of the date of
such direction.

Section 175 (4) of the Constitution provides that if a constitutional matter arises in any
proceedings before a court, the person presiding over the that court may and, if so
requested by any party to the proceedings, must refer the matter to the Constitutional
Court unless he or she considers the request to be frivolous and vexatious.

A constitutional matter according to section 332 of the Constitution means any matter
in which there is an issue involving the interpretation, protection or enforcement of the
Constitution.
This means that a matter can be referred to the Constitutional Court from the
Magistrate Court if any Constitutional matter arise during the proceedings
Nyagura v Lanzani Ncube N.O & Others (CCZ 7/19 Const. Application No. CCZ 53/18) [2019] ZWCC 07 (06
March 2019)

Section 175(4) of the Constitution provides as follows:

“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so
requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the
request is merely frivolous or vexatious.” (My emphasis)

A constitutional matter, as defined in s 332 of the Constitution, must arise or be raised in the proceedings in the subordinate
court. The person presiding the Court may, if he or she is of the view that the determination of the constitutional issue by the
Court is necessary for the purposes of the proceedings before him or her, mero motu refer the matter to the Court. If the matter
is raised by any party to the proceedings, there must be a request by that party or any other party that the matter be referred to
the Court for determination.
If the presiding person is of the view that the determination of the constitutional matter by the Court is necessary for the
purposes of the proceedings and that the request for a referral is not frivolous or vexatious, he or she is obliged to refer the
matter to the Court for determination. If the presiding person is of the opinion that the request for a referral is frivolous or
vexatious, he or she shall refuse the request.
There must be a moment in the procedure set out in s 175(4) of the Constitution when the presiding
person must address his or her mind to factors that answer a number of questions, such as whether what is
raised is a constitutional question, whether the request to refer the matter to the Court is frivolous or
vexatious, and whether the determination by the Court is necessary for the purpose of the proceedings
before him or her. There must be evidence that a request for a referral of a constitutional matter to the
Court was made to the presiding person.

It is not compliance with the requirements of the procedure of referral of a constitutional matter to the
Court prescribed under s 175(4) of the Constitution to say the constitutional question was raised and the
presiding person declined to refer it to the Court. The reason is that it is the request to refer a
constitutional question to the Court which must have been found to be frivolous or vexatious. It is not the
constitutional matter itself that has to be found to be frivolous or vexatious.
THE MAINTENANCE COURT

See the Maintenance Act Chapter 5:09

• Every Magistrate Court is Maintenance Court within its area of jurisdiction; see
section 3 of the Act. However, the Maintenance Act is a separate court with its own
jurisdiction and procedure (see Maintenance (General) Regulations 1988).
• A Maintenance Court’s main function is to determine claims for maintenance by or on
behalf of dependants against responsible persons.
• ‘Responsible person’ means a person who is legally liable to maintain another –
section 2 of the Act.
• Husbands and wives are legally liable to maintain each other regardless of whether
they are married under general law or customary law, see section 6 (3) (a) of the Act.
• Parents, including those married customarily, are jointly liable to maintain their
children, see section 6 (3) (b) of the Act.
PROCEDURE
• Complaint on oath (affidavit) by dependant or someone with custody of dependant – section 4 (1) of the Act and form
M1 of the Regulations.
• Affidavit must set out the following:
 The grounds on which the Respondent is liable to maintain the dependant e.g. marriage or paternity.
 The list of expenses of the dependant and the applicant’s (complainant’s) income and expenses where appropriate.
 Particulars of failure or neglect to provide reasonable maintenance.
• Maintenance officer issues summons – section 4 (1) of the Act and form M2 of the Regulations.
• Affidavit by Applicant must be attached to summons – form M2 of the Regulations
• Summons served by the police (section 29(1) of the Act) or by the messenger of court.
• Respondent responds by notice of income, dependants and expenses – form M3 of the Regulations.
• Court conducts inquiry into complaint on the day specified in the summons –section 5 (1) of the Act.
• Inquiry conducted in a manner best fitted to do substantial justice – section 13 (b) of the Act; Zimunya v Zimunya
HH387/84.
• Any person may be represented by a legal practitioner – section 13 (a) of the Act;
• Court has power to subpoena witnesses and call for production of books and documents – section 13
(c) of the Act.
• Court shall have regard to the following in making order:
i. The general standard of living of the responsible person and the dependant, including their
social status;
ii.The means of the responsible person and the dependant;
iii.The number of persons to be supported;
iv.Whether the dependant or any of his parents is able to work and, if so, whether it is desirable
that he or she should do so.
See Section 6(4) (a-d) of the Act
• Court makes order after inquiry (section 6(1) of the Act) if satisfied that the respondent is liable, is
able to contribute and fails or neglects to do so (section 6(2) of the Act);
• Court may make direction against employer if employer had prior notice and opportunity to show
cause why direction should not be made or consents to direction – section 6 (5) of the Act;
• Direction may be made against the state provided notice given in the prescribed manner – section 6 (7)
of the Act;
• Court may direct that payment should be made through the clerk of court – section 6 (6) of the Act.
MAINTENANCE (APPEAL AGAINST ORDER)

• Appeal goes to the High Court – section 27 (1) of the Act.

• Appeal does not suspend operation of the judgment unless the court orders otherwise on good cause
shown – section 27 (3) of the Act.

MAINTENANCE (PAYMENT THROUGH THE CLERK OF COURT AND TRANSMISSION OF

ORDER)

• A party in whose favour an order has been made may apply for an order to have future payments
made through the clerk of the Maintenance Court – section 19 of the Act;
• The clerk of court may transmit order to the province where the responsible person is residing –
section 20 of the Act.
ENFORCEMENT OF ORDER

Maintenance order may be enforced in any of the following ways:

• Direction against employer – section 9 of the Act
• By the clerk of court in the same way as a civil judgment of the Magistrates Court – section 22 (1) and
(2) of the Act.
• Prosecution (failure to comply with a maintenance order is a criminal offence) – section 23 of the Act.

DIRECTION AGAINST AN EMPLOYER;

• Application to the maintenance officer of the Maintenance Court where the order is registered –
section 9 (1) of the Act.
• Maintenance officer gives notice to the responsible person and the employer calling upon them to
appear on specified date to show cause why the direction should not be made section 9 (2) of the Act.
• Court conducts inquiry and makes direction if satisfied – section 9 (3) of the Act.
EMPLOYER’S OBLIGATIONS IN RELATION TO DIRECTION:

• Direction has precedence over any other court order requiring payment to be made
from the responsible person’s earnings – section 7(1) of the Act.
• No set-off or settlement of any debt from the responsible person’s earnings until
payment in terms of the direction has been made – section 7 (2) of the Act.

EMPLOYER’S OBLIGATION IN RELATION TO DIRECTION

CONTINUED:

• Failure to comply with a direction is a criminal offence – section 24 of the Act.

• Must notify the clerk of the Maintenance Court within 7days if responsible person
is discharged or terminates employment – section 21 (1) of the Act. Failure to do
so is a criminal offence – section 21 (3) of the Act.
REHEARING, RESCISSION, VARIATION OF ORDER MADE IN ONE’S ABSENCE

The following are some of the applications that can be made in terms of section 12 of the Act:
• Applicant can apply for rehearing of application that was dismissed in her/his absence.
• Respondent can apply for rescission of an order granted in default if he/she wants to show that he/she is
not liable or is already providing maintenance.
• Respondent may apply for variation of order granted in default if he/she does not dispute liability but
cannot afford the amount awarded.

VARIATION OF ORDER DUE TO CHANGE IN CIRCUMSTANCES

Either party may apply for variation of the order if there is a change in their personal circumstances (or
those of the dependant) or of circumstances in general – section 8 of the Act.

REGISTRATION OF ORDERS FROM THE HIGH COURT

The parties may register maintenance orders granted by the High Court in the Maintenance Court so that
they can be enforced or varied through the Maintenance Court – section 18 of the Act.
TERMINATION OF ORDERS (AUTOMATIC)
• In respect of a child – section 11(1) of the Act.
• In respect of a spouse – section 11(3) of the Act.

ENFORCEMENT OF ORDERS OUTSIDE ZIMBABWE

Maintenance orders may be enforced in specified countries on a

reciprocal basis; Maintenance Orders (Facilitation for Enforcement)
Act Chapter 5:10.
APPLICATION (MOTION) TO STRIKE OUT

A defendant may apply to strike out a portion of the summons specifically:

(a) Any of two or more claims in a summons which, not being in the alternative, are mutually
inconsistent or are based on inconsistent averments of fact.
(b) Any argumentative, irrelevant, superfluous or contradictory matter contained in the
summons.
{Order 14 Rule 6(1)} Green v Lutz 1966 RLR 633
The plaintiff may apply to strike out a portion of the defendant’s plea, specifically:
(a) any of two or more defences which, not being pleaded in the alternative, are mutually
inconsistent.
(b) any argumentative, irrelevant, superfluous or contradictory matter which may be stated in a
plea {Order 16 Rule 14 (1)}.
• Procedure on exception to summons applies mutatis mutandis to application to strike out
from the summons – {Order 14 Rule 6 (2)}.
• Procedure on exception to a plea applies mutatis mutandis to application to strike out from
the plea {Order 16 Rule 10 as read with Order 16 Rule 14 (2)}.
CLAIM IN RECONVENTION (COUNTERCLAIM)

Definition: This is the defendant’s claim against the plaintiff

• Rules on claim in convention apply mutatis mutandis except:
Not necessary for plaintiff to enter appearance – delivers plea if intends to defend the claim in
reconvention
Times that run from appearance run from date of delivery of claim (Order 9 Rule 1)
• Defendant may make any claim in reconvention whether:
(a) liquid or illiquid; or
(b) liquidated or unliquidated; or
(c) it arises out of or is connected with the subject-matter of the claim in convention or not;
• Claim in reconvention must be delivered within 7 days after appearance and provide the same
particulars as summons – {Order 9 Rule 2}
• Claim in reconvention shall not prejudice the plaintiff’s right to apply for summary judgment – {Order
9 Rule 4}
• Claim in reconvention within the jurisdiction will be treated as a cross-action and the court will
pronounce judgment on both in the same action – {Order 9 Rule 3(1)}.
• Claim in reconvention and claim in convention may be tried separately but judgment must be given
pari passu.
CLAIM IN RECONVENTION IN EXCESS OF JURISDICTION

• Procedure to be followed:
• Defendant applies for claim to be pronounced in excess of jurisdiction and for stay of action Order 9 Rule
3(2) as read with section 15(1) of the Act
• Court orders stay of the action if satisfied that the claim exceeds its jurisdiction; Order 9 Rule 3 (3) as read
with section 15(1) of the Act
• If no application for stay is made, or application is dismissed and there is no abandonment, claim in excess of
jurisdiction is dismissed – {Order 9 Rule 3 (4)}.
• Upon stay, defendant must institute proceedings in court of competent jurisdiction within the period stipulated
by the court – section 15 (1) of the Act.
• Plaintiff will transfer his/her claim to the competent court as a counterclaim – section 15 (1) of the Act.
• Magistrates Court may grant an extension of the period of stay of action – section 15 (2) of the Act.
• Magistrates Court will dismiss the counterclaim (claim in reconvention) and proceed to determine the claim in
convention if defendant fails to institute proceedings in the competent court or the proceedings in the
competent court are discontinued – section 15 (3) of the Act.
PRIVILEGE
• Types of privilege that can be claimed include:

• Legal professional privilege which covers;

 all communication between a legal practitioner and his/her client.
 Any document prepared for the purpose of existing or contemplated
litigation and with a bona fide intention of laying it before a legal
practitioner for the purpose of obtaining his/her advice or to enable
him/her to conduct the client’s case.
– Kerwin v Jones 1957 R&N 432 or 1957 (3) SA 181 (SR)
– Boyce v Ocean Accident Guarantee Corporation Ltd 1965 RLR
(668)
STATE PRIVILEGE:

It is claimed by the state in respect of documents whose disclosure is not in the public interest and may be claimed
even if the state is not party to the action.
Association of Rhodesian Industries and Others v Brookes and Another 1972 (1) RLR 144 or 1972 (2) SA 680 (R)

MARITAL PRIVILEDGE
It is claimed by parties in a marriage

Consequences of failure to disclose document:

– Will not be allowed to use it without the leave of the court but the other party may use it to cross-examine
a witness – {Order 18 Rule 1(4)}
• Inspection of disclosed documents:
– Each party shall allow the other to inspect disclosed documents and take copies – (Order 18 Rule 2)
• Notice to produce documents at trial:
– Either party may give the other notice to produce disclosed documents at trial {Order 18 Rule 3 (1)}
• Notice to produce has same effect as a subpoena {Order 18 Rule 3(2)}
STEPS OF A TRIAL

• Where the burden of proof on all issues is on the plaintiff the trial proceeds in the following
order:
o Opening address – Order 19 Rule 5(1)
o Adduction of evidence by the plaintiff – each witness normally goes through:
1. Examination in chief
2. Cross-examination
3. Re-examination
• Chronological order of trial where burden of proof is on plaintiff continued:
1. Close of plaintiff’s case.
2. Adduction of evidence by the defendant (examination-in-chief, cross-examination and
re-examination of each witness).
3. Close of the defendant’s case.
4. Closing address – Order 19 Rule 6 (8)
5. Judgment.
ABSOLUTION FROM THE INSTANCE

• There are two instances where a defendant can apply for ABSOLUTION FROM THE INSTANCE and these
are;

1. Defendant may apply for absolution from the instance if he/she is of the view that the evidence led
by the plaintiff is insufficient to establish a prima facie case – {Order 19 Rule 6 (1) (b)}.
• Test applied by the court in deciding whether to grant the application is: whether a reasonable court might find in
favour of the plaintiff on the evidence presented – Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge
(Pvt) Ltd 1971 (1) RLR 1. See also Standard Chartered Zimbabwe Ltd v Georgias & Another 1998 (2) ZLR 547.
1. The court can grant absolution from the instance as its final judgment where the plaintiff fails to
prove his/her case and the defendant fails to prove his/her defence. The test applied is: whether a
reasonable court could or ought to grant judgment in favour of the plaintiff on the evidence
presented – Supreme Service Station case (supra).This is applied at the close of defendant’s case
where the case has proceeded to full trial.
See also; Sibanda v Katsande & Others-HH 34-18
J & J Transporters LDA V Porusingani-HH 32-19
RECALLING OF A WITNESS

• The court can recall a witness on its own initiative or on application by either party
– {Order 19 Rule 6 (6)}.
• If the application to recall a witness is opposed, the court has the discretion to grant
it despite the opposition on the ground of surprise or other reasonable ground.
• The court takes into account the flowing factors in deciding whether to grant an
opposed application for recalling a witness:
 Prejudice to the opposing party.
 Risk of fabrication of evidence to remedy shortcomings in the applicant’s case.
 The need for expeditiousness in disposing of litigation.
Pauley v Marine and Trade Insurance Co Ltd (2) 1964 (3) SA 657 (W)
RE-OPENING OF CASE

• Either party may apply to re-open his/her case after he/she has closed his case by calling a new witness to give
evidence. The application will not be granted if the evidence was intentionally withheld out of its proper order
{Order 19 Rule 6 (5)}
• Court exercises its discretion judicially upon consideration of all the relevant factors. Factors provided by the courts
over the years should be regarded as guiding principles and not inflexible requirements.
• The factors which are usually considered by the court in deciding whether to allow re-opening include:
i. The reason why the evidence was not led timeously;
ii. The degree of materiality of the evidence;
iii. The possibility that it may have been shaped to relieve the pinch of the shoe.
iv. The balance of prejudice, i.e. the prejudice to the plaintiff if the application is refused and the prejudice to the
defendant if it is granted. It may include such factors as the amount or importance of the issue at stake; the fact that
the defendant's witnesses may already have dispersed; the question whether the refusal might result in a judgment of
absolution, in which event whether it might not be better to let the plaintiff lead the evidence rather than to put the
parties to the expense of proceedings de novo.
v. The stage which the particular litigation has reached.
vi. The healing balm of an appropriate order as to costs.
vii. The general need for finality in litigation.
viii.The appropriateness or otherwise of visiting the remissness of the legal practitioner upon the client.
Mkwananzi v van der Merwe and Another 1970 (1) SA 609 (A) particularly pp 616 – 618