CIV/03

LL.B (HONS) PART II

CIVIL PROCEDURE

CUSTOMARY LAW AND LOCAL COURTS

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

DEFINITIONS. (Section 2 of the Act)

1. Customary Law: the customary law of the people of Zimbabwe, or of any

section or community of such people, before the 10th June 1891, as modified and
developed since then; section 2 of the CLLA.
2. Local Court: primary court or community court
3. Primary Court : a court constituted in terms of S10(1)(a) of the Act. (See also
S2 of S.I. 115/91)
4. Community Court: a court constituted in terms of S10(1)(b)
5. Presiding Officers: S11 & 12 of the Act
a. Primary Court: headmen or other person appointed by Minister plus 2 – 5
assessors
b. Community Court: chief or other person appointed by Minister plus 2-5
assessors.
NOTE. The presiding officer has discretion on who to appoint as assessor as he
makes the list thereof, but he has no discretion to dispense with assessors.

JURISDICTION

1. A local court is established by warrant published by Minister in terms of S10(1)

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

2. S15 of Act. A local court shall have jurisdiction in any civil case in which
customary law is applicable, provided that
a. The def normally resides within Ct’s area of jurisdiction
b. The cause of action or an element thereof arose within such area
c. The def consents to the Ct’s jurisdiction

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

a. Where the claim is not determinable by customary law
b. Where the monetary value of the claim exceeds that laid down by the
Minister – Primary Court - $50 000 000 in terms of S1 158/2004,
Community Court - $100 000 000 in terms of S1 158/2004

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 c. Where the claim entails the validity, effect, interpretation, of a will
d. Where the claim is for dissolution of a marriage except marital
relationships in an unregistered customary union
e. Where the claim is for custody or guardianship
f. Where the claim is for maintenance
g. And where the claim involves rights in land and immovable property

PROCEDURE

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

1. COMMENCEMENT OF PROCEEDINGS

By the laying of a complaint and payment of the prescribed fee [where summons is
issued – (i) $120 000, (ii) where no summons is issued - $100 000 – SI 17/2006] by the
Plaintiff S3 of S.I.115/91

2. SUMMONS
a. In terms of S19 of Act, summons can be issued against the defendant and
witnesses who do not voluntarily avail themselves before the Court.
b. Summons will be issued where the Defendant was not present when
the complaint was laid and it will be served by the Messenger
of Court. S.4 of S.I 115/91
c. S5 S.I 115/91 provides for summons and service thereof against witnesses
where a party is unable to persuade the witness to come to Court.
NOTE: service of summons is normally the same as in other Courts viz. personal
services on a responsible member of Defendant or witness household coupled
with an explanation of the nature of the case and the date and time of the hearing.
However, while a messenger can serve only a Defendant within the Court’s area
of jurisdiction, that limit does not seem to apply to witnesses.

3. CONDUCT OF HEARING

S20 of Act. Customary Law shall apply both as to procedure and evidence and the
proceedings shall be simple and informal as in reasonably possible and best suited
to do substantial justice to the case. LPs shall not appear in Local Cts

a. S6 of S.I 115/91 provides that once the prescribed fees are paid and the parties
are present the hearing can commence. However, should the Defendant be
absent after proper service proved to the presiding officer, then judgment may
be granted without hearing him. And where the Plaintiff is absent, and no
advance notification has been given to the Court, of his inability to attend due
to circumstances beyond his control, his case may be dismissed.

b. S7.

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

c. S8. A matter may be postponed to a fixed date at the request of the parties or
the presiding officer’s initiative after consulting the parties and assessors.
d. S21 of Act. A local court has power to remove and detain any person in
contempt of court arising out of willful insult during any sitting, or willful
disruption of proceedings and further summarily sentence the culprit to the
prescribed fine.
e. S22 of Act and 12 of S.I. 115/91. A presiding officer may at any time during
the hearing stop proceedings (for lack of jurisdiction, that customary law does
not apply or any good reason) and refer it to a magistrate for directions as to
the transfer of the case to another court.
f. S17 of the Act and 9 of S.I. 115/91. At the conclusion of the hearing the court
can grant any of the following orders or combination thereof:
- Damages/compensation
- Specific performance
- Penal damages
- Costs
- Any order required by the justice of the case
Each order must specify the time within which it must be complied with.

ENFORCEMENT (now dealt with in terms of the substituted section 15 of S.I. 17/2006)

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

1. At the expiration of the compliance period, where the judgment remains
unsatisfied, the beneficiary thereof may register it with the Magistrate within
whose area of jurisdiction the local court falls, and the Clerk of Court shall issue
out a Warrant of Execution at his request.(SI 17/2006). Where a warrant of
execution/ejectment/delivery has been issued at the instance of the judgment
creditor, form LC7 shall apply.
2. But a judgement cannot be executed on if an appeal has been noted.
3. And if two years have elapsed, no registration can be effected unless an
application has been successfully made to revive the judgment.
4. Any satisfaction of a judgment in money, cattle or other property must be made to
the other party in the presence of the presiding officer. If that party is unable to
be present, then the presiding officer may receive it and record his receipt of it
and hand it over as soon as possible. (S10(1)).

ENFORCEMENT (OF JUDGMENTS OF LOCAL COURTS)

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Also dealt with in terms of SI 17/2006 which repeals section 15 of S.I. 115/91 and
substitute it by establishing the forms to be used for the following:

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

creditor, Form L.C.7 applies.
2. Notice of attachment in execution, Form L.C.8 shall apply
3. Warrant of execution against property, Form L.C.9 shall apply.
4. Warrant of delivery and execution against property has been issued. Form L.C.10
shall apply.
The various forms mentioned out above are set out in the said SI 117/06.

APPEALS AND REVIEWS

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

1. An appeal from a Primary Court shall lie to a Community Court, within whose
area of jurisdiction the Primary Court falls (which shall re hear the case) and must
be made on 4 copies submitted within 30 days of the decision together with the
prescribed fee.
2. An appeal from a Community Court lies to the Provincial Magistrate’s Court,
within whose area of jurisdiction the Community Court falls (which shall re hear
the case and may summon assessors) and must be made on 4 copies submitted
within 30 days of the decision together with the prescribed fee. The 30 day period
may be extended upon application on good cause shown.
3. An appeal from the Magistrates Court shall lie to the High Court.

REVIEWS S25 OF Act

1. A review lies with the Magistrates Court within whose area of jurisdiction a local
court lies where it has come to the Magistrate or the designated officer that a local
court may have given an order or judgment which it had no competency to give,
provided that such review is held within 12 months of the order/judgment.
2. A magistrate may annul the proceedings and direct that they be heard de novo by
the same or another court, set the proceedings aside and return the case for
rehearing on such directions as he thinks fit, confirm the proceedings, or annul
them.
3. Any action in terms of para cannot be taken unless the parties have been advised
and given the opportunity to make representations.
4. An appeal can lie against the decision of the Magistrate herein as if it is an appeal
in a civil suit.
5. Where, on review, an order has been set aside or varied, the party in whose favour
the order or judgment was made shall refund or restitute as is necessary to accord
with the changed order/judgment.

RECORD OF PROCEEDINGS

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S13-14 of S.I. 115/91
Presiding officers shall ensure that a record of proceedings before them is kept as well as
other records.

FORMS
Summons
Notice of Appeal
Record of Case
Notice of Respondent (of appeal)
Transfer of case