Civil Procedure - Past Questions

Jurisdiction (both Mags and High Court)

 Distinguish between the jurisdictional limits of the Magistrates Court on the hand
and the High Court on the other hand. [5] – Qu. 6 Nov ’12 & Qu. 5 June 11 & Qu.18
Nov.’13 & Qu.3 June 2014

Magistrates Court Jurisdiction

Every magistrates court has jurisdiction at general or customary law to hear civil cases
between the parties and in relation to the matters listed in s.11(1) of the Magistrates Court
Act.

Limitations of Jurisdiction of the Magistrates Court

A magistrates court cannot hear civil cases if the amount or the value of the thing claimed is
more than £10 000. In contrast to the High Court, in terms of s14 or the MCA, a magistrates
court shall have no jurisdiction to deal with cases wherein is sought: -

1. Matrimonial matters:
i. Dissolution of a marriage other than a registered customary marriage. By contrast, at
common law, the High Court has over all divorce matters, so long as the court is
within the area of matrimonial domicile at the time of institution of proceedings.
ii. Judicial separation and proprietary order in matrimonial matters unless they are in
respect of registered customary marriages. In the High Court, the court has
jurisdiction at common law if it is: (1) the court of the domicile or residence of the
parties at the time of institution of proceedings; (2) the court of domicile of either
party at the time of institution of proceedings; or (3) the court of the area of the
celebration of marriage.
iii. Declaration of nullity of marriage other than registered customary marriage. The
High Court has jurisdiction, at common law, in case of a void marriage where it is in
the area of: (1) celebration of a putative marriage; (2) common domicile; (3)
plaintiff’s domicile; or (4) defendant’s domicile. In the case of voidable marriages,
the court of matrimonial domicile has jurisdiction.

[Note: Under s.3(1)–(3) of the Matrimonial Causes Act, the High Court has additional
jurisdiction in the case of divorce, judicial separation and nullity of marriage if the
applicant is the wife. ]

2. The validity of interpretation of a written will or other testamentary document.

3. To determine the status of a person with respect to mental capacity
4. Specific performance without the alternative of damages except:
(i) To order the rendering of an account where the claim is within the
jurisdiction ($10 000 maximum value)
(ii) To order the delivery/ transfer of property whose value is within the rules
($10 000 maximum value)
5. A decree of perpetual silence
6. Provisional sentence
7. A declaratory order as to any existing, future or contingent right or obligation where there
is no consequential relief, with a few exceptions in matrimonial matters.
8. The court also has no jurisdiction to determine the validity, effect or interpretation or an
oral will made in terms of s.11 of the Will Act unless there are strong connections to the
province in question.
9. Immovable property situated within the province disposed by the will.
High Court Jurisdiction
In contrast, the High Court has inherent jurisdiction under common law and statute (s.13 High
Court Act) to order anything or determine any case that is not prohibited by law. The High
Court also has appellate jurisdiction and review powers.

Finally, note s.53 of the HCA:

Although the High Court has jurisdiction to hear all matters, if somebody takes a matter to the
High Court that could have been heard in the magistrates court, then if they are successful
they shall not recover any costs in excess of those that would have been recovered if they had
instituted the proceedings in the magistrates court. If they are not successful, they will be
ordered to pay costs of legal practitioner and clients on a higher scale.

Issuing and Service of Documents (both Mags and High Court)

Substituted Service
 ** Explain what substituted service is. [3] – Qu.19 Nov ‘1
 Also: What is substituted service, and under what circumstances do you apply for it
(5) Qu.10 June 2014
 Also: What do you do when you want to cause service of court process and it has
turned out to be impossible or impractical to serve the process in any of the ways
laid down in the court rules? [3] – Qu. 13 June ’11 & Qu.19 Nov.’13

 (Note, prior to applying for Substituted Service: it shall be sufficient service to leave
a copy of the process in a letter-box at or affixed to or near the outer or principal door
of, or in some other conspicuous position at, the residence, place of business or
employment, address for service or office, as the case may be. Order 5 R40 HC;
Order 7, R6 Mags)

 SUBSTITUTED SERVICE: where service cannot be effected in any ways

stipulated by the rules you can apply for substituted service to a judge of the HC:
application for substituted service under Order 6 R46, when otherwise all manner of
service has failed.

 Application: should state the facts on which the cause of action is based, reason why
service can’t be effected in any of the ways provided by the rules; sufficient relevant
facts indicating manner in which service will be effected: Becker McComick (Pvt)
Ltd v Gvt of Kenya 1983 (2) ZLR 72

 See: Order 7 Rule 8 of the Magistrates Court (Civil) Rules: Where service cannot be
effected in any manner or on any day or at any time prescribed, the court may, upon
evidence of that fact and that the action is within the jurisdiction of the court, make an
order allowing service to be effected in such manner or on such day or at such time as
may be stated in such order, including notice by advertisement in substitution for or
in addition to service.
  Note, that substituted service cannot be used in place of proper service, where proper
service is possible: The City of Hre v Mudzingwa & Ors HH 200/91 City of Harare
sought an eviction order for 194 squatters from its land. It applied for substituted
service in the form of an order to allow sufficient copies to be served on one of the
squatters as representative of the others. Only 24 copies of the process were served
on the representative squatter. Held: since the identities of 193 other squatters were
known to the applicant 24 copies were inadequate and did not represent a proper
compliance with the order. Equity demanded that each squatter should have be
furnished with his own copy of the documents.

Default Judgment (both Mags and High Court)

Instances where you can apply for Default Judgment

 Give five (5) instances when a Plaintiff may be entitled to apply for a judgment by
default? [5] – Qu.16 June ’11

(Only three instances specified in Mags Rules)

1. Failure to enter an appearance to defend (Order 11 R2 Magistrates Court (Civil)
Rules). Order 9 R57 High Court Rules (no notice or declaration required for claim for
debt or liquidated demand only); and R58 High Court Rules (where claim is other
than for debt or liquidated demand, and the D has failed to file appearance to defend
after ten days from the date of service of the plaintiff’s declaration for default
judgment).
2. Failure to deliver a plea as provided by Order 16, after delivery of written notice
calling upon the D to file his plea, within 48 hours of the receipt of such notice (Order
11 R3 Magistrates Court (Civil) Rules). Order 9 R57 & 59 High Court Rules: where
D has been duly barred for default of plea, no notice required.
3. Entry of appearance to defend is defective (in Mags) and the plaintiff has delivered
written notice to the D that request for judgment in default of due entry of appearance
is being made, and the D has not within 48 hours of the receipt of such notice
delivered a memorandum of entry of appearance in due form (Order 11 R4(2)
Magistrates Court (Civil) Rules).

(In High Court)

4. In default at trial (Order 9 R59A High Court Rules): does not apply to action for the
restitution of conjugal rights, for divorce, for judicial separation, or for nullity of
marriage
5. Failure to comply with discovery (Order 24 R165((1) and 2) High Court Rules): If a
party fails to make discovery, or having been served with a notice under R164 for
inspection of documents, fails to give notice of a time for inspection or fails to permit
inspection as required, the other party may make a chamber application for an order
compelling such discovery or inspection. If D fails to comply with that order, the
plaintiff may make a further chamber application for judgment in default.
6. Default at Pretrial Conference. (Order 26, R182 (11)): where the D fails to comply
with directions given by a judge in relation to the Pretrial Conference, or with Notice
to appear before a judge in chamber for Pre-trial Conference, the Plaintiff may apply
orally for default judgment at the pre-trial conference, or make a chamber application.
Default Judgment – Liquid vs Damages
 Explain the difference in the procedure involved when applying for default judgment in
the Magistrates Court, where, on the one hand the claim is a liquidated one and on the
other hand where the claim is for damages. [3] Qu.5 Nov ‘12

Where claim is for damages:

Order11 R4(5) Magistrates Court (Civil) Rules: If the action is a claim for damages—
(a) the plaintiff shall furnish to the court evidence, either written or oral, of the nature and
extent of the damages suffered by him;
(b) the court shall thereupon assess the amount, if any, recoverable by the plaintiff as damages
and shall give an appropriate judgment.

Where claim is a liquidated one:

Order11 R4 (7) Magistrates Court (Civil) Rules: If the action is on a liquid document, the
plaintiff is only required to file the original document duly stamped, or an affidavit setting out
reasons to the satisfaction of the court why the original document cannot or should not be
filed.

In both types of Action:

Order11 R4(8) (a) However, even in an action on a liquid document, the magistrate may call
upon the plaintiff to produce evidence, either written or oral, in support of his claim.

After considering the evidence in either type of action, the magistrate may: -
 enter judgment in terms of the plaintiff’s request or for so much of the claim as
has been established to his satisfaction (Order11 R4(8)(c));
 refuse judgment (Order11 R4(8)(e);
 make such other order as he thinks just (Order11 R4(8)(f).

Applying for Default Judgment - Failure to file Plea

 ** You institute an action in the Magistrates Court. The Defendant enters
appearance to defend but does not file his plea. What step should you take next? [2]
– Qu.4, Nov ’12 & Qu.2 June ’11 & Qu.15 June ’13

Order 11 R3 Magistrates Court (Civil) Rules:

Where a defendant has failed to deliver a plea as provided by Order 16 [within 7 days after
entry of appearance, delivery of documents or particulars, dismissal of application for
summary judgment, the making or an order giving leave to defend, dismissal or exception or
motion, or any amendment by the court of such exception or motion], the plaintiff should
deliver written notice calling upon the defendant to file his plea within forty-eight hours of the
receipt of such notice. On failure of the defendant to do so, he may lodge with the clerk of
the court a written request for default judgment with costs and interest in the same manner as
if the defendant had failed to enter an appearance to defend.

If there is a more detailed question on Default Judgment in High Court, procedure:

Default Judgment
 Liquidated: If the claim is a debt or liquidated demand and there is no appearance to
defend has been entered the plaintiff can make a chamber application for the
judgement R.57.
 Not liquidated: If the claim is not for a debt or liquidated demand then the procedure
if there is default to appearance, the procedure is set out in R58. The plaintiff must
file and serve her declaration if that has not yet been done. If the defendant remains
in default after service of the declaration then the plaintiff may proceed to make a
court application for default judgment by setting the matter down for hearing in terms
of R223(1). The court will then consider the matter except that where it’s a claim for
damages the court will require evidence as to the quantum of damages. R60. The
evidence to be quantumed can be by way of an affidavit and not oral evidence.

 The affidavit should be filed within a specified time limit as follows:-

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

 Default of plea/ Barring

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

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

Hayes v Bladachin & Ord 1980 ZLR 11

Defamation action. The plaintiff objected to the trial being held in camera and sought
postponement to enable him to appeal to the governor. The matter was postponed 3
times to enable him to do so but he failed to. After the 3 rd request, postponement was
refused, and the plaintiff withdrew from the case. The defendant proceeded to lead
evidence rebutting the claim. Held: In light of the evidence led by the defendant,
judgment on the merits should be given for the defendants rather than merely
dismissing the claim in terms of R62 (which is judgment absolution from the
instance). Cost at an attorney client scale was awarded against the plaintiff because
his conduct was contentious to the court and his actions had been vexatious and
actually an abuse of the court’s process.

 Dispensing with evidence

N.B. The predecessor of R60 stated that the court may dispense with evidence
without specifying what evidence may be dispensed with. The current R60 states
that the court may grant judgment or make an order without hearing evidence
except in cases for damages in which case only evidence is to quantum of
damages (-issues of liability not provided).
  [Matrimonial Cases
Everything said on default judgment does not apply to divorce, judicial separation,
and nullity of marriage and restoration of conjugal rights. If you have matrimonial
claim and there is no appearance to defend – what one does depends on the type of
summons used – either ordinary or special summons.

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

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

Le Roux v Le Roux 1957 R& N 831 SR

The plaintiff sued the defendant for a final order of divorce. The defendant was in
default. The plaintiff was unable to effect personal service of the notice of trial
because the defendant moved from place to place. The plaintiff sought to testify that
she had seen the defendant and informed him of the date of set down.
Held: The plaintiff’s evidence could not substitute proper service of the notice of set
down because she was an interested party and she had been informed in a casual
manner. The matter was postponed indefinitely sine die to allow proper service.

- The notice of plead and of trial can be served together in a combined

document called notice to plead or trial.
- If you want for proceedings to be quicker the defendant can waive the
time limit required for filing the documents.

Issues relevant either using general and special summons.

(a) Consent Paper – parties should agree on the ancilliary issues i.e
maintenance, property sharing. The consent paper must be filed together
with the papers for the hearing of the divorce and it will be incorporated into
the court order. N.B One can’t consent to divorce.
(b) Service of papers on a person named to have committed adultery. O35 R273
(1), (2)

Cloete v Cloete 1951 SR 121

The plaintiff sought divorce against the defendant on the grounds of adultery. The
person in whom the defendant was not cited as co-defendant but mentioned by name
in the declaration. Held: The declaration and summons should have been served on
the named person to give him an opportunity of appearing for the court and clearing
his name.]

Payment into Court (Magistrates)

  Under what circumstances may a Defendant make a payment into court in the
Magistrates Court? (5) – Qu.8 Nov.’13

Order 13 gives the rules on payment into court. Basically there are two types of payment into
court that is, in terms of R1 and R2.: -

 R1. Defendant may at any time pay into court unconditionally the amount on the
summons and process stops, except for the recovery of costs not included in the
payment. The payment must specify the causes of action, otherwise it must be
disregarded. No consensus is required: see Brookmee v Rhodesia Railways 1956

 R2. The defendant may without prejudice make an offer of settlement and pay it
into court, which the plaintiff may, within 7 days of notice of such payment, request
delivery of the same and further proceedings will be stayed, save for the recovery of
costs not included in the payment.

 If the plaintiff refuses tender, but is unable to prove the amount, he is still entitled to
the full amount of tender: see Union Government v Male 1943 AD 3.

 R3 provides that payment in terms of R1 and R2 shall be on notice delivered to the

plaintiff setting out the amount and stating whether it is in terms of R1 or R2. If it is
under R2, it must be stated whether it includes both the claim and costs.

 R4. The clerk of court shall pay out to the plaintiff monies paid into court under R1
and R2, except that under R2 the plaintiff has to request the money first.

Note the difference between this case and the Consent to judgment. No judgment is required.

Special Plea

 State two categories of Special Plea (2) – Qu.17 June 2014

Two categories of special plea are: -

1. Dilatory/ Plea in Abatement: to delay the proceedings until some temporary bar to
the claim has been removed. Types: -
(i) lis alibi pendens – some matter is pending in another court.
(ii) No locus standi – person who has instituted proceedings has no capacity to sue:
see Edwards v Woodnutt NO 1968 (4) SA 124

2. Declinatory/ Plea in Bar: to quash or put an end to the proceedings. Three types:
(i) plea of res judicata: the same matter has been decided in another court of
competent jurisdiction; and
(ii) prescription – the matter is the cut-off time. A claim can no longer be brought
because lapse of time [Prescription Act 8:07].
N.B There is no prescription under customary law.
General claims – 3 years
Loans from state – 6 years
 Road Traffic Act – 2 years to sue insurer
Police Act - 8 mnths
(iii) lack of jurisdiction

Exception vs Special Plea

 ** Explain the difference between an exception and a special plea. [4] – Qu.11 Nov.
’12 & Qu. 7(a) June 2011 & Qu.6 June ‘13

1. (A) A Special plea is a plea that does not raise a defence on the merits but set out some
special technical defence to the plaintiff’s claim;
(B) Whereas an Exception is not a plea, it is a technical objection to the plaintiff’s claims
in the summons or the particulars of claim.

2. (A) The purpose of the Special plea is to delay, or put an end to the proceedings
(quashing);
(B) Whereas an Exception seeks to destroy the cause of action or defence, which may
either result in the end of proceedings, or force an amendment which will assist the
applicant with his case.

 More Information on Special Pleas

Two categories of special plea are: -
1. Dilatory/ Plea in Abatement: to delay the proceedings until some temporary bar to
the claim has been removed. Types: -
(i) lis alibi pendens – some matter is pending in another court.
(ii) No locus standi – person who has instituted proceedings has no capacity to sue:
see Edwards v Woodnutt NO 1968 (4) SA 124

2. Declinatory/ Plea in Bar: to quash or put an end to the proceedings. Three types:
(i) plea of res judicata: the same matter has been decided in another court of
competent jurisdiction; and
(ii) prescription – the matter is the cut-off time. A claim can no longer be brought
because lapse of time [Prescription Act 8:07].
N.B There is no prescription under customary law.
General claims – 3 years
Loans from state – 6 years
Road Traffic Act – 2 years to sue insurer
Police Act - 8 mnths
(iii) lack of jurisdiction

 More Information on Exceptions

Either party can except to the other party’s claim or defence.

If its an exception to the plaintiff’s claim it will be on the basis that: -

(i) the claim does not disclose cause of action; or
(ii) its so vague and embarrassing so that the defendant does not know what
claim he has to answer.
 An exception to the plea is that the plea does not disclose a defence or its so vague
and embarassing that the plaintiff does not know what the defendant’s defence is.

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

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

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

When to apply for an exception?

Salzman v Holmes 1914 AD 152
The plaintiff excepted to the D’s pleas in defence as uncertain, obscure, vague and
embarrassing. The court a quo was of the view that the plaintiff should have
proceeded by way of applying to strike out that portion of plea and order that it be
struck out. D appealed. Held: The plaintiff was correct to except because if the
offending paragraphs of the plea were intended as a special defence, they did not
comply with the rules in that the defendant did not admit, deny or confess and avoid
anything. The court went on to say the words used could more or less mean anything.

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

3. (A) The defence raised on exception must appear ex facie the document, that is, the
declaration or summons or pleadings/ particulars of claim excepted to.

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

Claim for balance of bonus as per agreement. D excepted to the plaintiff’s claim on the basis
that the agreement to pay the bonus contravenes Emergency Powers (Control of Salary and
Wage Increases) Regulations of 1981 and was therefore illegal and enforceable. The
exception was granted in the magistrates court and the defendant appealed in the SC. Held on
appeal that it was not apparent from the plaintiff’s summons that the bonus claimed
represented an increase of the plaintiff’s earnings and that the increase in earning was of such
a magnitude as to offend against the regulations. For that reason the summons was not
excepiable and the appeal was allowed with costs – what is excepted to must appear on the
documents.

(B) With a Special Plea, the defence raised by plea may be established by introducing
evidence/ fresh facts outside the declaration.
4. Different effect:
 If the court upholds the exception, the plaintiff can make an application to amend so
that the summons is no longer defective. If the application to amend is granted then the
matter will proceed on the basis of the amended summons. If the application to amend
is dismissed or there is no application to amend the court can dismiss the claim on
application by the defendant.
 If the court upholds the special plea that will be the end or the action is stayed until the
defect is rectified. If it is not upheld the defendant will have to plead on the merits and
it will proceed as if there was no special plea.

 ** What considerations guide a legal practitioner in deciding whether to file an

exception or request further particulars? [3] - Qu. 7(b) June ’11 & Qu.6 June ‘13

In considering whether to file an exception, the LP would take account of the following:
 The purpose of an exception is to challenge the summons/ particulars of claim/ plea,
and may result in an amendment to the pleading, or a dismissal of the action
altogether.
 There must be sufficient grounds to raise an exception. Under Order 16 R11 of the
Magistrates Court (Civil) Rules, the grounds for raising an exception to a plea are:
1. That it does not disclose a defence to the plaintiff’s claim.
2. That it is vague and embarrassing.
3. That it does not comply with the procedural requirements for the filing of
a plea.
 In addition, under Order 16R12(1), the court shall not uphold any exception to a plea
unless it is satisfied that the plaintiff would be prejudiced in the conduct of his case if
the plea were allowed.

In considering whether to file a request for further particulars, the LP would take account of
the following:
 In contrast, a request for further particulars does not seek to have the pleading
amended or dismissed, but seeks additional information to clarify the pleading so
that the party requiring them can adequately respond to it.
 The purpose of further particulars is to place a defendant in the position of being
able to decide whether or not to persist in his defence and he is therefore entitled to
the further particulars reasonably necessary for him to make that decision: see Time
Security.
 The circumstances in which further particulars may be asked for are that a defendant
is entitled to a copy or copies of the accounts or documents upon which the plaintiff’s
claim is based: see Estate Zagorie v Lategan 1945 CPD 360. If the requested
particulars are not necessary to enable the defendant to respond, the plaintiff may
decline to supply them.
Request for Further Particulars for Purposes of Trial

 What are the two different reasons for which Further Particulars may be requested? (2) –
Qu.13 Nov.’13 & Qu.11(a) June 2014

Further particulars are requested:

1. To limit the generality of the allegations in the pleadings.

2. To define the issues more precisely: see Motaung v Federated Employers Insurance Co Ltd
1980(4) SA 274).

Requests may be made for the following:

1. For the supply of copies of documents / inspection of original documents upon
which the claim is founded;
2. Further information with regard to the other party’s pleading, as is reasonably
necessary to allow the requesting party to plead;
3. Such further information in respect of any pleading as is reasonably necessary to
enable that party to prepare for trial.

Reasons to Refuse to avail Further Particulars

 Under what circumstances may a party refuse to avail requested Further
Particulars? (3) – Qu.11 June 2014

Further particulars only need be supplied if they are reasonably necessary to enable one to
plead, regardless of who has the onus of proof, and if the plaintiff is unable to supply them, he
must give reasons: see Van v Botha 1952 (3) SA 494 (0); Time Security P/L v Castle Hotel
P/L 1972 (1) RLR 155 (A); 1972 (3) SA 112.

When asking for further particulars, the applicant is required to show that without such
requested particulars he will be embarrassed in attempting to plead and that he must make
plain to the court the precise embarrassments which he alleges he will suffer. The applicant
cannot carry out inquisitional forays upon the respondent. That is not what the procedure was
designed to achieve.

Also privilege/ request frivous or vexatious.

Summary Judgment

When can you apply

 At what stage of the proceedings can a party apply for Summary judgment in the
Magistrates Court? (2) – Qu.10 June ‘13

Summary judgment can be applied for within 7 days of the date of the defendant’s appearance
to defend [Order 15R1(2); note Order 9R4].

(1) Where a defendant has entered an appearance to defend, the plaintiff, whether in
convention or reconvention, may apply to the court for summary judgment on any claim in
the summons which is only—
 (a) on a liquid document; or
(b) for a liquidated amount in money; or
(c) for the delivery of specified movable property; or
(d) for ejectment; or
(e) for any two or more such matters as are described in paragraph (a), (b), (c) or (d);
in addition to costs.

Purpose
 (a) What purpose is the procedure of summary judgment meant to serve? [3] – Qu.9 June
’11

This is a procedure that:

 enables the plaintiff to obtain judgment without going to trial;
 where the defendant’s defence to the claim has no merits.

Justification or purpose was explained in Chrismar v Stutchbury and Anor, BECK J:

“..it is well established that it is only when all the proposed defences to the
plaintiff’s claim are clearly unarguable, both in fact and in law, that this drastic
relief will be afforded to a plaintiff”.

How to fend off Summary Judgment

(b) How may a defendant successfully fend off an application for summary judgment?
[3] – Qu.9 June ’11

The options available to the defendant are in terms of Order 15R2(1). The defendant may: -

(i) Pay into court to abide by the result of the action the sum sued for, together with
such sum for costs as the court may determine; or
(ii) Give security to satisfy any judgment which may be given against him in the
action; or
(iii) Satisfy the court by affidavit then filed, which may be supported by viva voce
evidence or otherwise, that he has a good prima facie defence to the action.

If the defendant does pay into court, find security or satisfy the court that he has a good prima
facie case, the court shall give leave to defend, and the action shall proceed as if no
application had been made. [Order 15R3(2)].

Appeal of Summary Judgment Decision?

(c) ** Can the plaintiff appeal against a magistrate’s dismissal of an application for
summary judgment? Explain your answer fully. [3] – Qu.9 June ’11

Section 40 of the Magistrates Court Act provides that only judgments of the Magistrates
Court listed in section 18 or section 39 of the Act can be appealed against. As a magistrate’s
dismissal of an application for summary judgment is not listed in these sections, it cannot be
appealed against.
Discovery of Documents

 ** Explain the purpose and importance of –

(a) discovery [4] – Qu. 15 June ’11 & Qu.5(b)(i) June 2014
 ** What is the purpose of Discovery of documents in an action? (3) – Qu.12 Nov.’13

Order 18 R1(1) Mag Court (Civil Rules): R1(1):

Upon closure of the pleadings, either party may, on notice, request the other to deliver a
schedule of books or documents in his possession/control which he intends to use, or which
tend to prove or disprove either party’s case. R1(4). Undiscovered documents may not be
used by the party who failed to discover them, without leave of the court, but the other
party can call for and use them in cross-examining the witness.

High Court Rules, Order 24 R160:

A party to a cause or matter may require any other party thereto, by notice in writing, to
make discovery on oath within twenty-four days of all documents relating to any matter in
question in such cause or matter which are or have at any time been in the possession or
control of such other party, whether such matter is one arising between the party requiring
discovery and the party required to make discovery or not. If a party fails to produce a
document for inspection when required to do so, he will not be allowed to use it at the trial
unless the court orders otherwise on good cause shown [R164(4)].

The purpose:
 Is to enable each party in the litigation to find out or to discover what documents
relating to the matter in issue are in the control of opponents.
 This is done to prevent surprise at trial, or trial by ambush.
 Discovery is compulsory in the magistrates court.
 It is always good practice for each party to ask for discovery.

Pre-Trial Conference

 ** Explain the purpose and importance of –

(b) a pre-trial conference [4] - Qu. 15 June ’11 & Qu.5(b)(i) June 2014

The purpose of the Pretrial conference is:

 to attempt to settle the matter out of court, and
 if that fails to reach an agreement on as many issues as possible to curtail the trial;
 to define the real issues in dispute so that the parties and the court are clear.

R(2) Magistrates Court (Civil) Rules: The purpose of the pretrial is to expedite and curtail
the duration of trial by agreeing, if possible, on:
1. Admissions of fact and documents.
2. Inspections and examinations.
3. Exchange of experts’ reports.
4. Discovery.
 5. Further particulars for trial.
6. Plans or diagrams, models, photos and so on, to be used at the trial.
7. Consolidation trials.
8. Quantum of damages.
9. Definition of real issues and manner of proving same.
10. Duration of trial.
11. Bundle of documents.
12. Settlement of all or any issues.

In High Court R182(2): At a pre-trial conference the parties shall attempt to reach
agreement on possible ways of expediting or curtailing the duration of the trial and on the
following matters—
(a) the obtaining of admissions of fact and of documents;
(b) the holding of any inspection or examination;
(c) the exchange of reports of experts;
(d) the giving of further particulars reasonably required for the purposes of trial;
(and agree on a deadline as to when these should be furnished)
(e) plans, diagrams, photographs, models and the like, to be used at the trial;
(whether there are any, and if so ,who is going to put them together)
(f) the consolidation of trials;
(where the defendant is sued by many plaintiffs)
(g) the quantum of damages;
(if the defendant is denying negligence)
(h) a definition of the real issues and the manner in which any particular issue may
be proved;
(i) an estimation of the probable duration of the trial;
(j) the preparation of correspondence and other documents to be handed in at the
trial in the form of a paged bundle with copies for the court and all parties; and, if it
is practicable to do so, the parties shall attempt to reach a settlement of all or any of
the matters in dispute between them.

Also:
 the number of witnesses to be called,
 the complexity of the facts,
 The issue of an interpreter can also be discussed.

Trial Procedures

Order of Leading Evidence

 Defendant Leading Evidence First ** Under what circumstances may the defendant
lead evidence first in a civil trial? [3] – Qu. 13 Nov ’12 & Qu.8 June ‘14
 Also: ** Can the Defendant lead evidence first in a trial? If so under what
circumstances? (4) – Qu.5 Nov ‘13

The general principle is that he who alleges must prove: see Nyahondo v Hokonya

R6 Magistrates Court (Civil) Rules:

  If the burden of proof is with the defendant, he shall lead evidence first followed by
the plaintiff.
 The court shall direct which party adduces evidence first in the case of a dispute.

High Court:
The duty to begin depends on who has the burden of proof. If it is on the plaintiff, the plaintiff
adduces evidence first [R437(1)]. If on the pleading the burden is on the defendant then the
defendant adduces evidence first [R437(2)]. If there is doubt or dispute as to who has the
burden of proof then the court has the discretion to determine which party shall begin.

The court’s discretion must be exercised judicially and with fairness: see Mkwananzi v Van
der Merwe and Anor 1970 (1) SA 609).

Enforcement of Judgement (both Mags and High Court)

 List three (3) methods of enforcing a court judgment that is monetary in nature. [3] –
Qu.11 June ‘11
 Also: ** What are the methods of enforcement of a judgment sounding in money?
(4) – Qu.9 Nov.’13

1. Warrant of Execution This is a court process authorizing the messenger of court to attach
and sell the debtor’s property as is necessary to satisfy the judgment debt. (in s20–25 of the
Magistrates Court Act and Order 26 of the Magistrates Court (Civil) Rules

2. Garnishee Order This is a legal procedure by which a creditor can collect what a debtor
owes by reaching the debtor's property when it is in the hands of someone other than the
debtor. A debtor's property may be garnished before it reaches the debtor. For example, if a
debtor's work earnings are garnished, a portion of the wages owed by the employer go
directly to the Judgment Creditor and is never seen by the debtor. (s33 of the Magistrates
Court Act and Order 29 of the Mags Court (Civil) Rules; .Order 42, High Court Rules, R377].

3. Civil Imprisonment (s.26 - 31 MCA, Order 28) This is a Roman-Dutch method of

enforcement. It is used to force the debtor who has the means to pay but is unwilling to do so.
There is therefore no decree of civil imprisonment if the debtor satisfies the court that he has
no means to satisfy the debt either from present or future earnings: see s27 of the Magistrates
Court Act. The debtor will not be excused if he is willfully refusing to work or squandering
his money or is apparently living beyond his means. This type of procedure can be
commenced against joint debtors: see R v Ncube 1969 (2) RLR 310. It is commenced by
summons for civil imprisonment. Where it appears either that a judgment has remained
unsatisfied for 7 clear days, or from the admission in writing or in open court of any judgment
debtor, or by the return of the messenger to any process of execution, that such judgment
debtor has not sufficient property liable to be attached in execution to satisfy the judgment
debt and costs, the judgment creditor may take out a summons calling upon the judgment
debtor to show cause why a decree of civil imprisonment should not be made against him
[s26(1)].
Interpleader
Third Party property wrongly attached

In the Magistrates Court

 The messenger of court attaches property pursuant to a warrant of execution and
believing that the property belongs to the judgment debtor named in the warrant. In fact
the property belongs to your client who is not party to the action that gave rise to the
judgment and the warrant. Advise your client on what his remedy (or remedies) is and
how he can go about pursuing such remedy or remedies. [6] – Qu.8 Nov. ‘12**

 Also: A client seeks your advice when her property is attached by the messenger of court
pursuant to a warrant of execution issued in a matter in which your client was not a party.
Your client shares a house with a tenant who is the judgment debtor in the case. The
messenger of court attached your client’s property in the belief that the property belonged
to the judgment debtor (the tenant).
Explain the steps that your client must take and the procedure that must be followed in
dealing with your client’s claim. [6] – Qu.14 June ’11

The client should lodge a claim against the messenger of court for the return of his/ her
property. Usually this would be done by affidavit.

The messenger shall, on receipt of the claim, give notice to the execution creditor: Order 26,
Rule 3 (6) Magistrates Court (Civil) Rules. Under Order 26, Rule 3 (7), if the execution
creditor gives the messenger notice within seven days thereafter that he admits the claim, he
shall not be liable for any costs, fees or expenses afterwards incurred, and the messenger may
withdraw from possession of the property. If however the execution creditor does not admit
the client’s claim, then the messenger shall prepare and sue out a summons, calling upon the
client and execution creditor to appear in interpleader proceedings to state the nature and
particulars of their claims (Order 27 (Rules 1(2) and 2).

Order 27 Rule 4, If the client appears in pursuance of the summons, the court may:-
(a) order the client to state, orally or in writing, on oath or otherwise, as to the court may
seem expedient, the nature and particulars of his claim;
(b) order that the matters in issue shall be tried on a day to be appointed for that purpose;
(c) order which of the claimants shall be plaintiff and which the defendant for the purpose of
trial;
(d) try the matters in dispute in a summary manner.

s.70(3) MCA The court issuing any interpleader summons in terms of subsection (1) shall
adjudicate upon the claim and make such order between the parties in respect thereof and of
the costs of the proceedings as to the court seems just and lawful, and such order shall be
deemed to be a judgment of the court and shall be enforced and may be appealed from in like
manner as any other judgment.

In the High Court

 Your client seeks your advice when his property is attached by the Deputy Sheriff
pursuant to a Warrant of Execution issued in a matter in which your client was not a
party. Your client leases a furnished apartment. The judgment debtor is your client’s
tenant. The Deputy Sheriff has attached your client’s property in the belief that the same
belongs to the tenant.
 a) Explain the steps that your client must stake and the procedure that must be
followed in dealing with your client’s claim. (6) – Qu.13 June ‘13

The client should lodge a claim against the Deputy Sheriff for the return of his/ her property.
Usually this would be done by affidavit. If the tenant disputes the claim, then the Deputy
Sheriff must lodge interpleader proceedings.

Interpleader proceedings are instituted by an applicant (the Deputy Sheriff) who holds
property or has incurred a liability in respect of which there are two or more claimants (the
client and the tenant) and these claimants are making adverse claims (Order 30 Rule 205A
High Court Rules).

Purpose was explained in Bernstein v Visser: “interpleader is a form of procedure whereby a

person who is a stakeholder of other custodian of movable property to which he lays no claim
on his own rights but to which two or more other persons lay claim may secure that they shall
fight out their claim among themselves without putting him to the expense and trouble of an
action/actions”.

The Deputy Sheriff must serve an interpleader notice on both parties (the client and his
tenant). The notice states the nature of the viability, property or claim that is the subject
matter of the dispute and will call upon the claimants to deliver particulars of the claim in the
form of a notice of opposition with supporting affidavit(s). It should also state that the Deputy
Sheriff would be applying for the court’s decision as to the validity of the client’s claim
[R207]. The Deputy Sheriff would deliver with the notice an affidavit stating that he himself
has no interest in the dispute [R208].

Where the subject matter is any thing capable of delivery the Deputy Sheriff must tender
delivery of the thing to the registrar or take steps to secure the availability of the thing in
question as the Registrar may direct. R206. Where the claims relates to immovable property
the Deputy Sheriff should place the title deeds of the property available to him in the
possession of the registrar and also give an undertaking to the registrar that he will sign all the
documents necessary to effect transfer of the property as may be directed by the court
R206(3).

The client must then file a Notice of Opposition, together with an opposing affidavit [R233].
The Deputy Sheriff may then file an answering affidavit [R234]. The matter can then be set
down for hearing [R223].

Powers of the court [R210(2)] At the conclusion of the hearing, the court may affirm the
client’s claim and order the return of his property, or refuse it. If the court decides that it
cannot decide the issue on paper then it can order a trial. If the party proceeds to trial, the
court will usually order the party who is claiming the property (the client) be the plaintiff
because it is assumed prima facie that the property in possession of the judgment belongs to
the judgment debtor: see Bruce NO v Josiah Parks and Sons (Pvt) Ltd 1971 (1) RLR 154;
Bruce NO v de Rome and Anor HH 109/89; Greenfield NO v Blignaut 1953 SR 73.

Garnishee Order (both Mags and High Court)

 ** Explain fully what a garnishee order is. [4] – Qu.12 June ’11 & Qu.5(a) June 2014

A Garnishee Order allows a creditor to take the property of a debtor when the debtor does
not possess the property. It is a legal procedure by which a creditor can collect what a
debtor owes by reaching the debtor's property when it is in the hands of someone other
than the debtor. The property holder is the garnishee. A debtor's property may be garnished
before it reaches the debtor. For example, if a debtor's work earnings are garnished, a
portion of the wages owed by the employer go directly to the Judgment Creditor and is
never seen by the debtor.

In the Magistrates Court, the procedure is governed by s33 of the Magistrates Court Act and
Order 29 of the Magistrates Court (Civil) Rules. It is used to enforce judgment sounding in
money where there is money due to the creditor.

In the High Court, the procedure is governed by Order 42, High Court Rules:
A judgment creditor who has obtained a judgment or order for the recovery or payment of
money, which judgment or order is unsatisfied, may make a court application for an order
that any money at present due or becoming due in the future to the judgment debtor by a
third party within the jurisdiction (called the garnishee) shall be attached [R377].

Requirements
1. There is a judgment creditor with a judgment or order in his/ her favour for recovery or
payment of money.
2. The judgment or order is unsatisfied.
3. Money is at present due or becoming due in future to the judgment debtor. [Order 42
R377]: see Simpson v Standard Bank of SA Ltd 1966 (1) SA 590; Muvengwa v Matarutse and
Another 1968 (2) ZLR 300; Honey and Blanckenberg v Law 1965 ZLR 685.

Rescission of Judgment

Principles of Mags Court – Rescission of Default Judgment

 Qu. 10, June ’11 - ** What principles are applied by the Magistrates Court when
deciding whether or not to grant an application for –
(b) rescission of a default judgment? [6]

- Extent of delay
- Reasons for delay
- Prospects of success
- Whether there was willful default

The application procedure for rescission of default judgment in the Magistrates Court is
provided in s39 MCA and Order 30 of the Magistrates Court (Civil) Rules.

Order 30R1: Any party against whom a default judgment is given may, not later than 1
month after he has knowledge thereof, apply to the court to rescind such judgment. There is
a rebuttable presumption of knowledge of such judgment within 2 days after the date
thereof [R1(4)]. If the application for rescission is brought out of time there is need to seek
condonation first: see Mahoqa v Libenburg SC 206/91.

The application must be supported by affidavit stating the reasons why the applicant did not
appear at the hearing.

The ground of defence or objection is that one has a bona fide defence to the main matter.

In terms of R2(1) the court must dismiss if there was wilful default: see Neuman Pvt Ltd v
Marks 1960 RLR 166. If the applicant was not in willful default and has filed acceptable
grounds on merits the court has a discretion to rescind or vary the order granted and it can
also give directions as is necessary.

Wilful default has three components to it. These are:

1. Knowledge by the applicant that action has been brought against him.
2. Knowledge he deliberately refrains from doing what he is required of him although he was
free to do so.
3. A mental attitude of not caring about the consequences of his default.
Once the first two points are established the last one is presumed: see Gundani v Kanyemba
1988 (1) ZLR 226 (S).

The court must be satisfied with the grounds of defence before granting rescission.

Where the summons does not disclose a cause of action rescission must be granted: see
Bingali v Mondiya SC 91/86. The rule has been interpreted to mean that the grounds for
rescission must be a good prima facie defence. The rescission can also be granted partially:
see Musakasa v Mimba SC 46/86.

Principles of High Court – Rescission

 ** Qu. 11 June ’13 & Qu.14 Nov.’13 & Qu.13(a) June 2014 - What are the
principles that guide the High Court when determining:-

(a) an application for Rescission of Judgment (5)

Rescission of Consent judgment under Order 8 R56 of the High Court Rules: In terms of
this Rule a judgment given by consent under the rules may be set aside by the court and leave
may be given to the defendant to defend, or to the plaintiff to prosecute his action. Such leave
shall only be given on good and sufficient cause and upon such terms as to costs, and
otherwise as the court deems just: see Hockey v Rixon.

Rescission of Summary judgment under Order 10 R74. The rule provides that:
1. If a defendant against whom judgment in terms of Order 10 has been granted satisfies the
same within 1 month thereafter or within such extended time, not being more than 3 months
in all, as the court at the time of giving judgment may allow, he may within 1 month after so
satisfying the judgment make a court application to set aside the judgment.
2. On such application the court may on good cause shown set aside the judgment and give
leave to defend, and may give directions as to the giving of security by the plaintiff for the
return of the money or goods recovered, if the defendant should be successful, or for the
payment into court of such money or the deposit with a custodian of such goods, to abide the
result of the action.
3. Where such leave is given the action shall proceed in the ordinary manner subject to any
directions which the court may give.
Rescission of Default judgment under Order 9 R63 by court. In terms of this rule:
1. A party against whom judgment has been given in default, whether under the rules or under
any other law, may make a court application not later than 1 month after he has had
knowledge of the judgment for the judgment to be set aside.
2. If the court is satisfied, on an application in terms of sub-rule (1), that there is good and
sufficient cause to do so, the court may set aside the judgment concerned and give leave to the
defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and
otherwise as the court considers just.
3. Unless an applicant for the setting aside of a judgment in terms of this rule proves to the
contrary, he shall be presumed to have had knowledge of the judgment within 2 days after the
date thereof: see; Ndebele v Ncube [see also R63A].

The ground of defence or objection is that one has a bona fide defence to the main matter.
The court must dismiss if there was wilful default: see Neuman Pvt Ltd v Marks 1960 RLR
166. If the applicant was not in willful default and has filed acceptable grounds on merits
the court has a discretion to rescind or vary the order granted and it can also give directions
as is necessary.

Wilful default has three components to it. These are:

1. Knowledge by the applicant that action has been brought against him.
2. Knowledge he deliberately refrains from doing what he is required of him although he was
free to do so.
3. A mental attitude of not caring about the consequences of his default.
Once the first two points are established the last one is presumed: see Gundani v Kanyemba
1988 (1) ZLR 226 (S).

The court must be satisfied with the grounds of defence before granting rescission.

Where the summons does not disclose a cause of action rescission must be granted: see
Bingali v Mondiya SC 91/86. The rule has been interpreted to mean that the grounds for
rescission must be a good prima facie defence. The rescission can also be granted partially:
see Musakasa v Mimba SC 46/86.

Rescission of Default Judgment in Mags

 Qu. 21 – Nov ’12: The Messenger of Court serves your client with a warrant of execution
against property. The client tells you that before the Messenger of Court’s visit, he never
saw any summons or other document suggesting that he was being sued.

You immediately check with the court and discover that a default judgment was entered
against your client two months ago. A perusal of the return of service shows that the
summons was served on Peter, your client’s former gardener who has since left employment.
Your client is adamant that the gardener never handed the summons to him.

(a) Advise your client on what needs to be done to seek the reversal of the
judgment and what his prospects of success are. [7]

The application procedure for rescission of default judgment in the Magistrates Court is
provided in s39 MCA and Order 30 of the Magistrates Court (Civil) Rules.

Order 30R1: Any party against whom a default judgment is given may, not later than 1
month after he has knowledge thereof, apply to the court to rescind such judgment. There is
a rebuttable presumption of knowledge of such judgment within 2 days after the date
thereof [R1(4)]. If the application for rescission is brought out of time there is need to seek
condonation first: see Mahoqa v Libenburg SC 206/91.

The application must be supported by affidavit stating the reasons why the applicant did not
appear at the hearing.

The ground of defence or objection is that one has a bona fide defence to the main matter.
The court must be satisfied with the grounds of defence before granting rescission. Where
the summons does not disclose a cause of action rescission must be granted: see Bingali v
Mondiya SC 91/86. The rule has been interpreted to mean that the grounds for rescission
must be a good prima facie defence. The rescission can also be granted partially: see
Musakasa v Mimba SC 46/86.

In terms of R2(1) the court must dismiss if there was wilful default: see Neuman Pvt Ltd v
Marks 1960 RLR 166. If the applicant was not in willful default and has filed acceptable
grounds on merits the court has a discretion to rescind or vary the order granted and it can
also give directions as is necessary.

Wilful default has three components to it. These are:

1. Knowledge by the applicant that action has been brought against him.
2. Knowledge he deliberately refrains from doing what he is required of him although he was
free to do so.
3. A mental attitude of not caring about the consequences of his default.
Once the first two points are established the last one is presumed: see Gundani v Kanyemba
1988 (1) ZLR 226 (S).

In this case, there was clearly not wilful default. His prospects of success will be good if he
can prove this to the court, so his success will depend on the quality of his evidence that he
did not receive the summons.

Stay of Execution pending application to rescind

(b) Is there anything that can be done to ensure that the Messenger of Court does
not proceed with the execution in the meantime? [5]

He can apply for a stay of execution. Section 39(3) MCA provides that where an application
to rescind has been made, the court may direct that the judgment be suspended pending the
decision upon the application and the direction shall be made upon such terms, if any, as the
court may determine as to security for the due performance of any judgment which may be
given upon the application.

The court has power to order a stay of execution on application by the judgment debtor on
good cause shown: see Cohen v Cohen 1979 RLR 184.

The principles applied by the courts are set out in Mupini v Makoni and Cohen v Cohen:

 The court has an inherent power to control its own process and procedures,
 In the exercise of its wide discretion, it may decide to stay execution of judgment
 It will act where real and substantial justice so demands
  The onus rests on the applicant to satisfy the court that special circumstances exist to
depart from the general rule is that a party who has obtained an order is entitled to
execute upon it.
 He must establish the potentiality of his suffering irreparable harm or prejudice.
(Santam Insurance Co. v Paget)

Time limit for Application to Rescind

(c) Is the fact that the judgment is now two months old of any consequence? [3]

[Order 30R1]. Application to rescind such judgment must be made not later than 1 month
after he has knowledge thereof. There is a rebuttable presumption of knowledge of such
judgment within 2 days after the date thereof [R1(4)]. See Ndebele v Ncube. Once rebutted,
the 30 days start running from the day you have become aware of the default judgement

If the application for rescission is brought out of time there is need to seek condonation first:
see Mahoqa v Libenburg SC 206/91.

What is important is to show that the delay in filing an application for condonation was not
an inordinate delay, and that the default in the first place was not willful and that there are
prospects of success.

(d) Would you have advised your client differently if your client was not
disputing the claim but was still insisting that he was never served with the
summons? [5]

As mentioned above, in deciding whether to grant rescission of judgment, the court will
firstly consider whether he was in wilful default: see Neuman Pvt Ltd v Marks 1960 RLR 166.
In this case, he was not in willful default because he did not have knowledge of the action
that was brought against him.

However, the court must also be satisfied that the client has acceptable grounds for a
defence. before granting rescission. This means that the grounds for rescission must be a
good prima facie defence.

If the client does not dispute the claim and he therefore cannot present acceptable grounds
for a defence, his prospects of success are not good. His application will in all likelihood be
dismissed.

If client has no defence then he can not fulfill the requirements for rescission of default
judgement. However client can file an application for stay of execution pending satisfaction
of judgement (to prevent irreparable harm, for example if immovable property were
attached in the execution, when the debt could be satisfied without attachment of
property).
 (e) What difference, if any, would it make to your approach to the case if your
client was admitting liability but disputing the amount only? [5]

The client can still apply for rescission of judgment on the basis that he did not have
knowledge of the action, and was therefore not in willful default, but he would apply for
variation of the order granted as opposed to rescission. (Section 39 MCA provides that in
civil cases, the court may vary any judgment, which was granted by it in the absence of the
party against whom it was granted.) This may not succeed given that he does not have
grounds for a defence on the merits.

The client could also consider lodging an appeal of the order in terms of the amount (s.40
MCA), if the Magistrate Court’s decision on the amount was unfounded on the evidence
before it (fresh evidence cannot be introduced on appeal). An application for extending the
period of notice of appeal would need to be lodged, as the client is now out of time (an appeal
from the Magistrates Court should be noted 21 days after the date of the judgment appealed
against, or 14 days after the delivery to the clerk of the court by the magistrate of a written
judgment; whichever period is the longer [Order 31 R2(1) (a) and (b) of the Magistrate Court
(Civil) Rules.).

Stay of Execution pending application for Rescission

 Qu. 10, June ’11 - ** What principles are applied by the Magistrates Court when
deciding whether or not to grant an application for –
(c) [stay of execution pending an application for rescission of a default judgment?]
[4]

Section 39(3) MCA provides that where an application to rescind has been made, the court
may direct that the judgment be suspended pending the decision upon the application and the
direction shall be made upon such terms, if any, as the court may determine as to security for
the due performance of any judgment which may be given upon the application.

The court has power to order a stay of execution on application by the judgment debtor on
good cause shown: see Cohen v Cohen 1979 RLR 184.

The principles applied by the courts are set out in Mupini v Makoni and Cohen v Cohen:

 The court has an inherent power to control its own process and procedures,
 In the exercise of its wide discretion, it may decide to stay execution of judgment
 It will act where real and substantial justice so demands
 The onus rests on the applicant to satisfy the court that special circumstances exist to
depart from the general rule is that a party who has obtained an order is entitled to
execute upon it.
 He must establish the potentiality of his suffering irreparable harm or prejudice.
(Santam Insurance Co. v Paget)
Appeals from Magistrates Court

Appeal of Summary Judgment?

 Can a Magistrates’ Court’s decision to dismiss an application for summary judgment be
appealed against? Cite the relevant authority for your answer [2]. – Qu. 7 Nov ‘12

Section 40 of the Magistrates Court Act provides that only judgments of the Magistrates
Court listed in section 18 or section 39 of the Act can be appealed against. As a magistrate’s
dismissal of an application for summary judgment is not listed in these sections, it cannot be
appealed against.

Execution of Judgment pending Appeal

 *** You represent a plaintiff who has won a judgment in the Magistrates’ Court.
The defendant has noted an appeal in the High Court against the judgment. Can
your client execute upon the judgment despite the noting of the appeal. Give
reasons for your answer. [3] – Qu. 3, Nov ‘12

 Also: * Qu. 1 – June ’11 & Qu. 5 June ‘13 - You represent a Plaintiff who has won a
judgment in the Magistrates’ Court. The losing party has noted an appeal in the
High Court against the judgment.

(a) What is the nature of the application that you need to make to enable your
client to execute upon the judgment notwithstanding the noting of the
appeal? [2]

The client needs to make a formal application for execution. The court has discretion whether
to grant leave to execute pending appeal once application is made. In exercising its discretion
the court is guided by certain factors discussed below in (c). A party applying for execution
must show special reasons why execution should be allowed.

The authority for the court to order execution is section 40(3) of the MCA: where an appeal
has been noted, the Magistrates Court may direct either that the judgment be carried into
execution or that execution thereof shall be suspended pending the decision upon the appeal
or application.

Once the court has ordered execution, the client must file the warrant of execution with the
clerk of court. If accepted, the court official must stamp and sign it on behalf of the clerk of
court. This is what is called issuing. In terms of Order 3 R2 (a) of the Magistrates Court
(Civil) Rules, it is the duty of the clerk of the court to issue all such process of the court as
may be sued out by any person entitled thereto.
 (b) Which court do you approach for such application? [2]

Section 40(3) of the MCA, provides that where an appeal has been noted against a decision of
the Magistrates Court, it is the Magistrates Court may direct that the judgment shall be carried
into execution or that execution thereof shall be suspended pending the decision upon the
appeal or application.

(c) What principles guide the court in determining the said application? [6]

An appellant has an absolute right to appeal, and to test the correctness of the decision of a
lower court before he or she is called upon to satisfy the judgment appealed against.
Execution of the judgment before the determination of the appeal negates this absolute right
of the appellant, and is therefore generally not permissible.

Where however the appellant brings the appeal with no bona fide intention of testing the
correctness of the decision of the lower court, but is motivated by desire to either buy time or
harass the successful party, the court in its discretion may allow the successful party to
execute the judgment, notwithstanding the absolute right to appeal vesting in the appellant.

The court exercises its wide discretion by determining what is just and equitable in all
circumstances, guided by certain factors. These were set out in a number of cases such as
ZDECO Pvt Ltd v Commercial Careers College (1980) Pvt Ltd 1991 (2) ZLR 61 (H) and
Masimbe v Masimbe 1995 (2) ZLR 31 (S):

1. The potential of irreparable harm or prejudice sustained by the parties;

2. The prospect of success on appeal, including more particularly, whether the claim is
frivolous or vexatious.
3. If both parties face potential irreparable harm, the court consider the balance of
hardships or convenience

(d) If the application is dismissed, what recourse if any does your client have?
[3]

No right of appeal for dismissal of application for execution pending appeal under s.40 MCA.
Not a decision listed in s.18 or s.39. Can apply for review if there has been a gross
irregularity.

Maintenance Court

Variation of High Court order

 May a Maintenance Court vary a maintenance order that was issued by the High Court?
Explain your answer fully. [3] – Qu.17 June ’11

Variation of a maintenance order may be made in a Maintenance Court under s.8 of the
Maintenance Act subject to registration of the order in the appropriate maintenance court of
the province or district where the person against whom the order was made resides in
accordance with s.18(2).

Under s.18(3), where such an order has been registered, it may be varied by the Maintenance
Court as if the order had been made by the maintenance court itself, and notwithstanding that
the order of the High Court permits or authorizes a variation of any of the terms thereof only
by way of application to the High Court; and where any such order which has been made in
favour of a child has ceased or is due to cease upon the child having attained or attaining a
specified age, the maintenance court may, upon application being made to it and upon due
inquiry to which section eight shall apply, mutatis mutandis, extend the order for such period
and subject to such conditions as it may think fit.

Section18(4) provides that where a maintenance court varies, extends or discharges an order
of the High Court that has been registered under s.18 (2)—
(a) it shall as soon as possible cause the record of the proceedings to be forwarded to the
registrar of the High Court for review by a judge in chambers who may—
(i) confirm, vary or set aside the order of the maintenance court; or
(ii) set aside the order of the maintenance court and remit the matter to that court with
instructions to take such further proceedings as the judge may direct and thereafter to
make such order as it thinks fit;
(b) the order of the maintenance court shall be suspended pending the review thereof in
terms of paragraph (a).

Variation of Order

 What does an Applicant need to prove in order to obtain an order for variation of a
maintenance order? (2) – Qu.4 June ‘13

 For full discharge: the Applicant needs to prove that there are no longer any reasons
for the direction or order remaining in force (s.8(7)(a))

 For variation: that the means or circumstances of any of the parties have altered since
the making of the order (s.8(7)(b)), or that the manner in which payments are to be
made under the order or direction should be altered.

 The court shall take into account s.6(4): the Applicant must prove that the responsible
person and the dependant’s general standard of living is such that a variation is
appropriate; that the responsible person has the means to provide the appropriate
support, taking account of the dependant’s means; that the variation is appropriate to
the number of persons to be supported; and whether the dependant or any of his
parents are able to work.

 Your client is receiving maintenance from her former husband in respect of her minor
child. The maintenance order was part of a divorce order issued by the High Court. Your
client now wants to apply for upward variation of the order.

a) Which court do you approach to make he application and why? (3)

Variation of a maintenance order may be made in a Maintenance Court under s.8 of the
Maintenance Act subject to registration of the order in the appropriate maintenance court
of the province or district where the person against whom the order was made resides in
accordance with s.18(2).

Under s.18(3), where such an order has been registered, it may be varied by the Maintenance
Court as if the order had been made by the maintenance court itself, and notwithstanding
that the order of the High Court permits or authorizes a variation of any of the terms
thereof only by way of application to the High Court; and where any such order which has
been made in favour of a child has ceased or is due to cease upon the child having attained
or attaining a specified age, the maintenance court may, upon application being made to it
and upon due inquiry to which section eight shall apply, mutatis mutandis, extend the
order for such period and subject to such conditions as it may think fit.

b) What do you need to prove for the application to succeed? (3) – Qu.6 Nov ‘13

 That the means or circumstances of any of the parties have altered since the making
of the order (s.8(7)(b)), or that the manner in which payments are to be made under
the order or direction should be altered.

 The court shall take into account s.6(4): the Applicant must prove that the responsible
person and the dependant’s general standard of living is such that a variation is
appropriate; that the responsible person has the means to provide the appropriate
support, taking account of the dependant’s means; that the variation is appropriate to
the number of persons to be supported; and whether the dependant or any of his
parents are able to work.

 Your client has an order for maintenance issued against him in respect of his son. The
child is now eighteen years of age and your client has come to you to seek your advice.
What would you advise your client to do? (3) – Qu.7 Nov ‘13

Under s.11(1)(d) of the Maintenance Act, a maintenance order made in favour of a child shall
ordinarily cease when the child attains the age of 18 years. Under s.11 (2) however, upon
application on behalf of the child, the maintenance court can, upon due inquiry, extend the
order for such period and on such terms as the maintenance court thinks fit.

The court’s inquiry shall take into account s.8(7) of the Maintenance Act, including whether
there are still reasons for the order to remain in force, and the means and circumstances of the
parties. The court shall also take into account s.6(4), including the dependant’s general
standard of living , whether the responsible person has the means to provide the appropriate
support, taking account of the dependant’s means; and whether the dependant or his parents
(our client) is able to work.

Under s.8(8) of the Maintenance Act, the inquiry shall be held in the presence of the
responsible person or in his absence upon proof of the service upon of notice of the
proceedings.
High Court Jurisdiction

 Your client approaches you with instructions to challenge the validity of his father’s Will
which seeks to disinherit him. Which court do you approach? (2) – Qu.18 June ‘13

s.14 High Court Act:

The High Court in which the father was domiciled (Actor sequitor forum rei), or the High
Court which is most able to enforce the Will effectively (Doctrine of effectiveness). The High
Court has inherent jurisdiction in all matters: it can determine any case that is not prohibited
by law. [In terms of s.14 of the Magistrates Court Act, the Magistrates Court does not have
jurisdiction to deal with the validity or interpretation of a written will or other testamentary
document.]

 Your client has instructed you to institute proceedings for divorce. The parties are married
in terms of the Marriage Act [Chapter 5:11].

a) Which court do you approach and why? (2)

The High Court which is the court of the matrimonial domicile at the time of the institution of
proceedings. See Le Mesurier v Le Mesurier and Ors: according to common law the
domicile for the time being of the married pair affords the only true test of jurisdiction to
dissolve their marriage. [also Glen v Glen]. [Note s.14 of the Magistrates Court Act: the
Magistrates Court shall have no jurisdiction to deal with dissolution of a marriage other than a
registered customary marriage, whereas the High Court has inherent jurisdiction in all
matters: it can determine any case that is not prohibited by law]

b) Which procedure do you adopt in approaching the court? (2) – Qu.1 June ‘13

Order 35, R269A of the High Court Rules:

A special summons (Form 30A) is used in divorce proceedings, to which a copy of the client’s
declaration shall be annexed. R10. The summons must call upon the defendant to enter
appearance to defend if he intends to oppose the client’s claim.

Legal Capacity

 What does the term locus standi in judicio mean? (3) – Qu.16 June 2014

General rule: every natural person has locus standi in judicio, the legal capacity to sue and
be sued.

However, certain classes of natural persons’ legal capacity is varied and are under a disability
in this respect, for example minors.

Minors:
In general a minor has no locus standi in judicio. They may sue or be sued, either:
(i) in the name of the guardian: see Walt v Hudson and Moore; or
(ii) in his own name assisted by his guardian: see Willmer v Rance
If there is no guardian or where a possible conflict of interest with the guardian exists then it
is necessary for curator ad litem to be appointed. In certain exceptions minors have locus
standi in judicio; namely, when the minor is emancipated or in exceptional circumstances:
see ex parte Goldman 1960(1) SA 89 (D).

Other categories of persons who may not have locus standi in judicio include women
married in community of property; Mentally defective or disordered persons; Prodigals;
Insolvents; and Alien enemies. The President and Judges, Members of Parliament and
diplomats and foreign government also have certain immunities from being sued.

 Your client was involved in a Road Traffic Accident. The other party, who was at fault, is
sixteen (16) years old and was driving his father’s motor vehicle. The other vehicle was
not insured. Who in the circumstances does your client cite in the claim and why? (3)

In general a minor has no locus standi in judicio. They may sue or be sued, either:

(i) in the name of the guardian: see Walt v Hudson and Moore (1986) 4 SC. 327 or
(ii) in his own name assisted by his guardian: see Willmer v Rance (1904) 21 SC 423.

If there is no guardian or where a possible conflict of interest with the guardian exists then it
is necessary for curator ad litem to be appointed. In certain exceptions minors have locus
standi in judicio; namely, when the minor is emancipated or in exceptional circumstances:
see ex parte Goldman 1960(1) SA 89 (D).

Action vs Application

 ** What factors do you consider in deciding whether to institute proceedings by way

of action or application? (3) – Qu.19 June ’13 & Qu.3 June 2014

 Also: ** What considerations do you take into account in deciding whether to

approach the court by way of action or application? (4) – Qu.10 Nov. ‘13

Firstly it is important to distinguish these different procedures:

1. An action commences by a summons, followed by a set of pleadings and a trial at which
oral evidence is submitted.
2. An application commences by a Notice of Application supported by an affidavit, followed
by a set of affidavits and is usually decided on the papers.

It is appropriate to use application procedures where:

 1. Directed by statute, for example, insolvency proceedings;
2. It’s a straight-forward money claim where you don’t anticipate any opposition and
it’s less expensive to use the application procedure (choose the less expensive one
because if you use the more expensive one, you will be penalised with costs);
3. If there is no material dispute of fact (so no oral evidence required).

Instances Where Application Proceedings Are Not Permissible

1. Matrimonial matters (main claim) (incidental issues like custody and maintenance
pendente lite can be by application);
2. Unliquidated damages, that is, damages yet to be assessed by the court: see Room
Hire Co v Jeppe Street Mansions 1949 (3) SA 1155.
3. Provisional Sentence Matters [Order 4 R20 specifically says application should be by
way of summons.
4. Civil Imprisonment (041 R368).
5. If there is a material dispute of fact (in which case oral evidence is required) see
Herbstein and Van Winsen

Courts’ Approach:
If the matter is wrongly brought by way of application, where there is a material dispute of
fact which cannot be resolved on affidavit evidence, the court can dismiss the application.
There must be some evidence to support an averment of dispute of fact however. A bald
averment is not sufficient.

The court must not hesitate to decide an issue of fact on affidavit merely because it may be
difficult to do so. It should adopt a robust view and endeavour to resolve the dispute
without hearing evidence, if this can be done without doing injustice to either party: see the
Room Hire case and Soffiantini v Mould.

If the court decides a dispute of fact is material and cannot be resolved on affidavit evidence
then the court may, not only:
1. Dismiss the application: see Room Hire case and Masukusa v National Foods case; but also
2. Order the parties to trial: see Order 23 R159(b), Room Hire case; or
3. Order that oral evidence be heard [O 23 R.159(a): see Bhura v Lalla

Proceedings by Way of Action

Summons

Dies Induciae
 What is dies induciae? (3) – Qu.14 June 2014

Dies induciae means the time given to the defendant in a summons within which to enter
appearance to defend.

It is 10 days in the High Court [R17]. It excludes holidays and weekends [Order 1 R4A].

It is 7 days in the Mag crt RO10 R1(a)

Application for Default Judgment in the High Court

Default - Failure to Enter Appearance to Defend

 What recourse does the plaintiff have where the defendant has failed to enter appearance
to defend an action in the High Court within the prescribed period? [3]. – Qu. 14 Nov ‘12

Order 7 R50 High Court Rules: If D fails to enter appearance to defend he is automatically
barred. When a party is barred the Registrar cannot accept for filing any pleading or other
document from that party. That party shall not be permitted to appear in person or by a legal
practitioner in the subsequent proceedings in the action or suit. The only exception is when
they file pleadings for the purposes of applying for the removal of the bar.

Once the D has been barred, the plaintiff may then apply for default judgment in particular
circumstances:

Claim for debt or liquidated demand R57. If the claim is a debt or liquidated demand and no
appearance to defend has been entered, the plaintiff can make a chamber application for
default judgment.

Claim not for debt or liquidated demand If the claim is not for a debt or liquidated demand
then the procedure, if there is default in entering appearance to defend, the procedure for
application for default judgment is set out in R58: -
 The plaintiff must file and serve a declaration if that has not yet been done. If the
defendant remains in default after the service of the declaration then the plaintiff
may proceed to make a court application for a default judgment by setting the
matter down for hearing in terms of R223(1).
 The court will then consider the matter except that where it is a claim for damages
the court will require evidence as to the quantum of damages [R60]. The evidence to
quantum is by way of an affidavit and not oral evidence.

Note: You cannot apply for default judgment where the defendant fails to enter appearance to
defend in a divorce, judicial separation, nullity of marriage or restoration of conjugal rights
matter. A different procedure would be followed including serving declaration, notice to
plead and notice of trial personally.

R277B: In an unopposed matrimonial case, it shall not be necessary for the plaintiff to give
oral evidence if… the plaintiff files with the registrar an affidavit setting out the evidence on
which he relies, to which he shall annexe his marriage certificate, the original consent paper,
if any, and any other documentary evidence needing to be adduced, provided that the court
may require the plaintiff to give oral evidence and may postpone the matter for that purpose.

Defendant’s Claim in Reconvention

o What does a Defendant who has been served with a Summons by a Plaintiff and has
 himself a claim against the Plaintiff do? (2) – Qu.18 June 2014

 Order 18 High Court Rules: If the defendant wishes to raise a claim against the plaintiff
he does so by filing a claim in reconvention (a counter-claim).

 A claim in reconvention does not necessarily arise out of same facts as a claim in
convention but it can be raised in respect of any matter in which the defendant could have
maintained in an independent action [R120(1)].

 Claims in reconvention are set out in same manner as a declaration [R121(2)].

 A claim in reconvention is to be filed and bound with the defendant’s plea [R121(1)].

 A claim in reconvention may be dealt with separately in certain circumstances but

execution should be suspended until both claims have been decided. If, in any case in
which the defendant sets up a claim in reconvention, the action of the plaintiff is stayed,
discontinued or dismissed, the claim in reconvention may nevertheless be proceeded with.

 The court may for good cause shown order the plaintiff’s claim and the claim in
reconvention to be tried separately [R123 and R124]: see Van den Berg and Partners v
L.C. Robinson and Co Ltd 1952 SR 148.

Plaintiff’s Replication

 ** What is the reply to the Defendant’s Plea called and how long after service of the
Defendant’s Plea can this be filed? (4) – Qu.20 June ’13 & Qu.16 Nov.’13 &
Qu.13(b) June 2014

If the plaintiff wishes to file a reply to the D’s plea, he will serve what is called a replication.

R127, Order 19 of the High Court Rules: A replication is not compulsory. It is necessary
where the defendant raises new facts in his plea. A replication will be required where the
defendant’s plea is one of confession and avoidance [R126].

If it is to be filed, it must be filed within 12 days of the date of service of the plea [R125]

Set Down

o In terms of PD 1 of 2014 as amended; who has authority to effect service of a notice of set
down in the High Court? (2) – Qu.12 June 2014

All notices shall be served by the Sheriff. At the time of filing an appeal,application, or a pre-
trial conference request, as the case may be, a aparty shall deposit with the Sheriff an amount
as determined by the Sheriff as security for costs of service of all notices of set down.
A copy of the receipt of such deposit shall be furnished to the Registrar by the party within
five days of filing the appeal, application or PTC request.

When the matter is ready for set down, the Registrar will submitr the notice of setdown to the
Sheriff for service to be effected.

Procedure for Barring

 ** What recourse, if any, does the defendant have where he wishes to defend an
action in the High Court and the dies induciae have expired but the plaintiff has not
yet taken any further steps? [3]. – Qu. 15 Nov ‘12

 Also: What are the factors that guide the court’s decision when determining an
application for upliftment of a bar? [3] – Qu. 4 June ‘11

 ** Qu.3 June ’11: You are instructed to defend an action in which your client has been
served with summons issued in the High Court. The dies induciae have expired but the
Plaintiff has not yet taken any further steps.
(a) Explain what you need to do to ensure that your client is able to defend the
action [3]
((b) Would your answer be different if the matter was in the Magistrates Court as
opposed to the High Court? [3])

Barring, [Order 7 R50, High Court Rules]: As the defendant has failed to enter appearance to
defend he is automatically barred: it does not matter that the plaintiff has not done anything
(where a party has failed to file his declaration, plea, request for further particulars,
replication or other response to plea, the bar is not automatic [Order 12 R80], so until notice is
filed, the party could submit relevant papers.) As a result of being barred the Registrar cannot
accept for filing any pleading or other document from the Defendant. That party shall not be
permitted to appear in person or by a legal practitioner in the subsequent proceedings in the
action or suit.

Procedure for Removal of the bar The only recourse is to file pleadings for the purposes of
applying for the removal of the bar.
 This can be done by consent. Form No. 10 is used to file a notice of removal of bar.
 If the other party refuses to consent the party makes an application for the removal
of the bar [R84]. The application can be made either as a chamber application or as
an oral application at the hearing of the action or suit involved [R84]
 The application should be supported by an affidavit from the client: Standard Bank
of SA Ltd v Kirkos 1957 R & N 144. Postponement will be granted to allow the
applicant to file a proper affidavit.

 What are the factors that guide the court’s decision when determining an application for
upliftment of a bar? [3] – Qu. 4 June ‘11
See Petras v Petra SC 71/91. In this case it was held that an application for removal of the
bar must satisfy the following requirements: -
1. The applicant must give good reasons for the default.
2. The applicant must set out the facts on which he relies for the defence so that the court
can form an opinion from the merits: that is, whether he has a bona fide defence.

[Steps to be taken to defend action where dies induciae for entering appearance to defend have
expired
((b) Would your answer be different if the matter was in the Magistrates Court as
opposed to the High Court? [3])

Yes, in the Magistrates Court, the plaintiff may apply for default judgment if the defendant
has failed to file the appearance to defend within the prescribed period. [Order 11 Magistrates
Court (Civil) Rules]. However, this is not automatic and in accordance with Order 10 (2) of
the Rules, an appearance to defend, even though entered [late], shall nevertheless be effective
if a request for default judgment has not yet been made.

Applications to Strike Out

 What is an “application to strike out”? Under what circumstances is such application

resorted to? [3] – Qu. 12 Nov ‘12

An application to strike out is an application to have particular paragraphs of the other party’s
pleading removed [Order 137(1)(c), High Court Rules]. The purpose of the application to
strike out is to clarify the pleading so that it properly reflects the case that the plaintiff or
defendant has to answer. Form 12 is used for procedure to apply to strike out: see Tekere v
Zim Papers (Pvt) Ltd 275 1986 (1) ZLR 275.

Salzman v Holmes 1914 AD 152, Judge of Appeal Innes gave his view of the distinction
between an exception and application to strike out:

“The distinction between exception and application to strike out is clear. An

exception goes to the root of the entire claim or defence as a case maybe. The
excipient alleges that the pleading objected to taken as it stands is legally invalid for
its purpose. Whereas individual sections that do not comprise on entire claim or
defence but are only a portion of one must if objected to be attached by a motion to
expunge/application to strike out”

Paragraphs which may be struck out, are those which are:

 argumentative or irrelevant [R141], : see Green v Latz 1966 RLR 633.
 Superfluous
 Evasive or vague and embarrassing material where it does not go to the root of the
cause of action or defence
 inconsistent or contradictory matter; and
 any matter that tends to prejudice or embarrass the other party or that tends to delay
the fair trial of the action [R141(a)]
Amendment of Pleadings

 ** Discuss the High Court’s approach when determining applications for

amendment of pleadings. [5] – Qu.17 Nov ‘12

 Also: ** What are the principles that guide the High Court when determining an
application for amendment of pleadings? [5] – Qu. 8 June ’11 (a) & Qu. 11 June ’13
& Qu.14 (a)Nov.’13

o The purpose of the amendment of pleadings is to ensure that the issues which the
parties seek to be decided at court are clearly brought before the court: see Levenstein v
Levenstein 1955 SR 91.

o Wide discretion: When dealing with an opposed application to amend the pleadings the
court has a very wide discretion. Shill v Milner 1937 AD 101 at 105:
The object of pleading is to define the issues, and parties will be kept strictly to their
pleadings where any departure would cause any prejudice i.e., prevent inquiry. But
within those limits the court has wide discretion. For pleadings are made for the
court and not the court for pleadings.

o Whether amendment changes action substantially : [R134(1)]. If in the opinion of the

court or judge, such amendment may change the action substantially however, then the
amendment would be refused and the plaintiff would have to institute a separate action.

o Whether it is likely to cause prejudice : Whether the amendment in respect of its scope
or the time at which it is applied for is likely to prejudice the opposite party or parties. If
there is prejudice the court will look at whether the prejudice can be cured by an
appropriate order so as to the postponement and or costs: see Lamb v Beazley NO 1988 (1)
ZLR 77. Held: generally an application to amend a pleading will be allowed unless it is
mala fide or there is incurable prejudice.

o Explanation must be given for delay : Lamb v Beazley An explanation must be made
timeously and as to why the allegation was not made when the pleading was originally
drafted.

o Good faith: If an amendment of a pleading amounts to the withdrawal of an admission,

the court will require an explanation as to how it came to be made and also why it is
sought to resile from it. It must not cause incurable prejudice and it must not be mala fide.

DD Transport (Pvt) ltd v Abbott 1988 (2) ZLR 92., the Supreme Court said: ‘the court
would not grant withdrawal of an admission without a reasonable explanation of how it
came to be made and why it is sought to resile from it’… in addition the application to
amend must not cause incurable prejudice and must not be mala fide’.

Ex Parte Applications
 What is an Exparte Application and under what circumstances does one approach the
court ex parte? (3) – Qu.9 June ’13 & Qu.2 June 2014

An ex parte application is an application for the benefit of the applicant only; it excludes the
other parties: it is heard without giving notice to, and outside the presence of, other persons
affected by the hearing.

An ex parte application is used:

1. When the applicant is the only person who is interested in the relief that is being claimed
2. When the relief sought is a preliminary step in the proceedings
3. When, though other persons may be affected by the court’s order, immediate relief is
essential because of the danger or because the notice may precipitate the very harm the
applicant is trying to forestall (Herbstein & Van Winsen, page 232).

In terms of the Rule 242 an ex parte application is made if the applicant reasonably believes
one or more of the following:
1. The matter is uncontentious in that no person other than the applicant can reasonably be
expected to be affected by the order sought or object to it.
2. The order sought is a request for directions or to enforce any other provision of the rules in
circumstances where no other person is likely to object.
3. There is a risk of perverse conduct in that any person who would otherwise be entitled to
notice of the application is likely to act so as to defeat, wholly or partly, the purpose of the
application prior to an order being granted or served.
4. The matter is so urgent and the risk of irreparable damage to the applicant is so great that
there is insufficient time to give due notice to those otherwise entitled to it.
5. There is any other reason, acceptable to the judge, why such notice should not be given.

Ex parte applications require utmost good faith. The applicant should not mislead the court by
giving information which is inaccurate. R242(2) requires the applicant to make an ex parte
application to set out the reasons why he believes the matter should be heard ex parte. If the
applicant is legally represented a certificate from a legal practitioner is required, which also
sets out the reasons why the matter falls within the provisions of R242(1).

Urgent Chamber Applications

 ** Discuss the approach of the courts when determining whether an urgent

chamber application is in fact urgent. [4] – Qu.1. Nov ’12 & Qu.6 June 2014

If a party deems the matter to be urgent, he will submit an ex parte chamber application: this
means without notice to, and outside the presence of, other persons affected by the hearing. If
the applicant is legally represented his/her legal practitioner must submit a certificate with the
application setting out the reasons he/she believes the matter to be urgent (R242(2)(b), High
Court Rules).

In considering whether the matter is urgent, the High Court takes into account Rule 242 (1)
(d): whether the matter is so urgent and the risk of irreparable damage to the applicant
so great that there is insufficient time to give due notice to those otherwise entitled to it;
for example, a parent about to remove a child from jurisdiction.

Under R2421(e) the judge can also take into account any other reason acceptable to the
him/ her why notice should not be given to parties entitled to it: see ZIMDEF (Pvt) Ltd v
Minister of Defence and Anor 1985 (1) ZLR 146.

Ex parte applications require utmost good faith. The applicant should not mislead the court by
giving information which is inaccurate.

In Kuvarega v Registrar General & Anor 1998 (I) ZLR 188(HC) at p193, CHATIKOBO J
sounded this salutary warning in respect of urgent chamber applications:

“There is an allied problem of practitioners who are in the habit of certifying that a case is
urgent when it is not one of urgency… What constitutes urgency is not only the imminent
arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the
matter cannot wait. Urgency which stems from a deliberate or careless abstention from action
until the dead-line draws near is not the type of urgency contemplated by the rules. It
necessarily follows that the certificate of urgency or the supporting affidavit must always
contain an explanation of the non-timeous action if there has been a delay……….. Those
who are diligent will take heed. Forewarned is forearmed.”

[not really relevant to this question]

Procedure of the High Court: If it is urgent the Registrar will immediately submit the papers
to the judge who will consider the matter [R244]. However, there is a proviso to R244 that,
before granting or refusing the order, the judge may direct that any interested party be invited
to make representations in such manner and with such time as the judge may direct on the
issue of whether or not the applications should be treated as urgent.

1. The judge may require the deponent of any other person who may assist in the
resolution of the matter to give evidence under oath or otherwise [R246(1)(a)].

2. The judge may require either party’s legal practitioner representatives to appear before
him to present other arguments as the judge may require [R246(1)(b)].

3. If the applicant is requesting a provisional order then the judge will grant the provisional
order either in terms of the draft or a variation of that draft if he is satisfied that the
papers filed establish a prima facie case. The provisional order is sometimes called rule
nisi..

Rule Nisi

 What is a rule nisi? (3) – Qu.2 June ‘13

A provisional order granted ex parte, for example a temporary interdict, to provide interim
relief or prevent irreparable harm. Can be through court application, or if urgent, through
chamber application.

R247 sets out the procedure in the High Court,. Firstly, it shall be in Form 29C. It shall specify
the parties upon whom the provisional order is to be served, together with the application
and supporting documents. If the service is not to be effected in terms of the rules then the
order shall specify how service is to be effected, that is, by advertising in a local newspaper.
The order shall specify the time within which the respondent and other interested person
shall file notice of opposition if they oppose to the relief sought. Once the provisional order
has been served the matter will then proceed like a court application.

Provisional Sentence

 ** Under what circumstances can a Plaintiff issue Summons claiming provisional

sentence? (3) – Qu.16 June ’13 & Qu.15 Nov.’13

Provisional sentence is a procedure that is designed to enable the plaintiff who sues on a
liquid document to obtain relief without proceeding to trial. F O Kollberg (Pty) Ltd v
Atkinson’s Motors Ltd 1970 (1) SA 660 ‘ the purpose of provisional sentence proceedings is
to enable the plaintiff to receive prompt payment without having to wait for the final
determination of the dispute between the parties’

Requirements to be satisfied
1. The plaintiff must be suing on a liquid document.
2. The probabilities of success must be in favour of the plaintiff. (The defendant must be
unable to adduce such counter proof or evidence as would have satisfied the court
that in the principal case the probabilities of success would be against the plaintiff.)

What is a liquid document?

A liquid document has the following characteristics:
1. It must be signed by the defendant or his authorized representative or be deemed in law
acknowledged by the debtor.
2. The document must send money: it must create an obligation to pay money.
3. The amount of the debt must be fixed and definite on the face of the document. No
extrinsic evidence is allowed to prove the debt apart from certain exceptions.

Note: Rich and Ors v Lagerwey 1974 (4) SA 748 AD: simple conditions precedent are not a
bar to a provisional sentence. All that the plaintiff needs to do is to allege that the condition
has been complied with or that the event has happened. Once the plaintiff does this, the onus
shifts to the defendant to contradict the allegations made by the plaintiff. The court went on to
give a general definition of simple condition: it connotes a condition or event of a kind
unlikely in the nature of things to give rise to a dispute or, where it is disputed, is inherently
capable of speedy proof by means of affidavit evidence.

Interdicts

 **Distinguish between –
(a) a mandatory interdict and a prohibitory interdict. [2]
(b) a final interdict and a temporary interdict [2] – Qu.10 Nov. ’12 & Qu.4 Nov
’13 & Qu.1 June 2014
An interdict is an order prohibiting or restraining someone from doing a particular act, or
ordering someone to do a positive act to remedy an unlawful state of affairs for which
he/she/it is responsible.

Mandatory Interdict: – interdict which orders someone to act to remedy a wrongful state of
affairs for which he/she is responsible

Prohibitory Interdict: interdict which prohibits the person from doing a particular wrong

[(Not relevant to this question but in case it comes up)

Restitutory Interdict: interdict which orders the person to restore possession of property to a
person who is unlawfully deprived of his property]

Final Interdict: An order to secure a permanent end to an unlawful state of affairs

Temporary/ Interlocutory Interdict : An order granted pendente lite in order to secure the
rights of the applicant pending the outcome of either contemplated or existing litigation

Requirements:

For any interdict to be granted, the applicant must prove:

 that he has either suffered actual injury or has a reasonable apprehension of injury.
 that there is no other ordinary remedy by which he or she can be protected in the
same way as by an interdict.

For a final interdict to be granted:

 the right must be clearly established in fact and law.

Whereas in a temporary interdict:

 the right only needs to be established prima facie;
 but the balance of inconvenience must favour the applicant;
 given the risk of irreparable harm.

Appeal vs Review

 Appeal vs Review ** Explain the difference between an Appeal and a Review. [3] –
Qu.18 Nov. ’12 & Qu.7 June ‘13

 ** Also: Explain the difference between an Appeal and a Review (4) Qu.9 June ‘14

An appeal is concerned with the substantive correctness of the decision based on the facts on
the record or on the law relevant to those facts. A review is primarily concerned with the
procedural validity of the proceedings.

The main differences are:

1. An appeal may be brought against the findings of a lower court on any point of law
and/or fact, but a review may be brought only on the ground of specific procedural
irregularities — absence of jurisdiction, interest in the cause, bias, malice or gross
irregularity (s.27 High Court Act)
2. In an appeal the parties are confined to the record, whereas in a review it is permissible to
 prove a ground of review (e.g. bias) through affidavit. But on automatic review the court
is confined to the record.
3. An appeal must be brought within a fixed time. There is no time-limit for review, apart
from automatic review, though the High Court will not condone the bringing of review
proceedings after an unreasonable time has elapsed.
4. A court has no inherent appellate jurisdiction, whereas the High Court and Supreme Court
have inherent review powers. (s.26 High Court Act, s.25 Supreme Court Act)
5. An appeal is final and conclusive, unless a statute gives the parties a further right of
appeal to another court (for example, an appeal from a magistrates court lies to the High
Court, and from that court to the Supreme Court). A review, on the other hand, is not
final in that a case that has been the subject of review may be reviewed again. (S v Moyo)

Grounds for Review

 ** What are the grounds on which proceedings/ decision may be brought on review
before the High Court? (6) – Qu.17 June ‘13

 ** On what basis/ grounds can you seek a review in the High Court? (6) – Qu.17
Nov.’13

Section 27 (1) of the High Court Act:

1. Absence of jurisdiction on the part of the court, tribunal or authority concerned: see
Witham v Director of Civil Aviation and Another 1983 (1) ZLR 52; Cluff Mineral
Exploration (Zimbabwe) Ltd v Union Carbide Management Services (Pvt) Ltd and Ors 1989
(1) ZLR 224.

2. Interest in the cause, bias, malice or corruption on the part of the presiding officer: see
Austin and Anor v the Chairman of the Detainees’ Review Tribunal and Anor 1988 (1)
ZLR 21.

3. Gross irregularity in the proceedings or decision: see Abbey Estates and Investments
(Pvt) Ltd v Property Renting Corp (Pvt) Ltd 1981 ZLR 39; Ministry of Labour, Manpower
Planning etc. v P.E.N. Transport (Pvt) Ltd 1988 (1) ZLR 293.

Costs

 ** (a) What are legal practitioner and client costs? Under what circumstances
are such costs awarded? [4] – Qu.9 No ’12 & Qu. 6 June ’11

 Also Qu.3 June ’13 & Qu.3 Nov.’13 a) What are Attorney/ client costs? Under what
circumstances can such costs be awarded (4)
Attorney/ client costs are the costs that a legal practitioner is entitled to recover from his
client for professional services rendered by him. These costs are payable by the client
whatever the outcome of the matter and are not dependent on the award of costs by the court.
They include costs which, although not necessary, are incurred at the request of the client.

The court, can, in special circumstances, order the unsuccessful party to pay the costs of the
successful party on an attorney and client basis as a punitive measure.

Nel v Waterberg Landbouwers Ko-operatiewe Vereeninging, 1946 AD 597. At page 607 of

the judgment it was stated:

"The true explanation of awards of attorney and client costs not expressly authorised
by statute seems to be that, by reason of special considerations arising either from the
circumstances which give rise to the action or from the conduct of the losing party,
the court in a particular case considers it just, by reason of such an order, to ensure
more effectively than it can do by means of the judgment for party and party costs
that the successful party will not be out of pocket in respect of the expense caused to
him by the litigation".

Conduct of the losing party which would result in costs being incurred on the attorney/ client
basis would include: instances where the litigant and his attorney’s actions leading up to the
institution of proceedings are reprehensible, wrongful and unjust, where the litigant has
acted fraudulently and recklessly; and where the litigation itself is vexatious or an abuse of
the process of the Court.

 (b) ** What are costs di bonis propriis? Under what circumstances are such costs
awarded? [4] - Qu. 9 Nov. ’12 & Qu. 6 June ’11 & : Qu.3 June ’13 & Qu.3 Nov.’13

These are awarded against a legal practitioner in his personal capacity where the court wants
to show its displeasure at the legal practitioner’s conduct.

See Washaya v Washaya 1999 (2) ZLR 105:

Costs de bonis propriis may be awarded against an attorney in circumstances where he or she
is found to have acted:
- in an irresponsible, grossly negligent manner,
- causing prejudice to the other party, or
- where his handling of a client’s case is “slack” and evinces a lack of concern.

Qu.3 June ’13 c) What are party and party costs? Under what circumstances are such
costs to be awarded? (4) – Qu.3 June ’13

The costs that are awarded by the court to the successful party in an action. The court looks to
the substance of the judgment, not its form, in deciding who is the successful party.

The court can for good reasons, deprive the successful party of the costs in whole or in part:
see Municipality of Bulawayo v Zimbabwe Football Association S 172/89; Moyo v Minister of
Lands, Agriculture and Rural Resettlement and Anor S 112/91; Musara v Air Zimbabwe HH
260/91.

The court can, for good reason, order the successful party to pay the other party’s costs in
whole or in part.
Party and party costs are assessed using the relevant court tariffs. These tariffs may be
amended from time to time.

Execution (High Court)

 What sort of property is excluded from execution by way of a Writ of Execution (5) –
Qu.19 June 2014

There is no execution on certain kinds of property (s21 of H.C. Act). These include:

1. The necessary beds, bedding and clothing of such person or of any member of his family.
2. The necessary furniture of such person, other than beds, and household utensils in so far
as they do not exceed in value such sum as may be prescribed in the rules of court.
3. Stock, tools and implements necessarily used by such person in his trade or occupation in
so far as they do not exceed in value such sum as may be prescribed in the rules of court.
4. Food and drink sufficient to meet the needs of such person and the members of his
family for 1 month.
5. Professional books, documents and instruments necessarily used by such person in his
profession in so far as they do not exceed in value such sum as may be prescribed in rules
of court.

Superannuation of Judgment

 What is meant by superannuation of judgment (5) – Qu.20 June 2014

Rule 324 High Court Rules provides that there is no execution on superannuated judgments.
Once an action has been instituted there is a stipulated time period within which various steps
have to be taken from the issuing of summons to the executing of the judgment. Once this
time period has expired, the judgment becomes superannuated.

Roman law made provision for the superannuation of civil proceedings. Emperor Justinian,
in Code 3.1.11, decreed that civil suits shall not, after litis contestatio, be deferred longer than
three years.

In Zimbabwe the judgment can no longer be executed after one year.

Appeals/ Review

Appeal of Dismissal or Application for Stay of Execution?

  Can a High Court decision dismissing an Application for Stay of Execution be
appealed against? Cite the relevant authority for your answer (4) Qu.7 June
2014

Yes, but only with leave of the judge of the High Court or, if that has been refused, with the
leave of a judge of the Supreme Court.

(Section 43(2)(d) of the High Court Act states that no appeal shall lie to the Supreme Court
from the High Court with regard to an interlocutory order or judgment without the leave of
the judge of the High Court or, if that has been refused, without the leave of a judge of the
Supreme Court.)

Appeal of Decision that Chamber Application not Urgent?

 ** What are the options open to the applicant when a High Court judge rules that
an application brought as an urgent chamber application is not in fact urgent? [3] –
Qu.2 Nov ’12 & Nov ‘13

If the applicant obtains leave of the judge of the High Court or, if that has been refused, the
leave of a judge of the Supreme Court, he/ she can appeal to the Supreme Court under section
43(2)(d) of the High Court Act judgment .

If the decision of the judge is effectively a refusal of an interlocutory interdict, then the
applicant may appeal to the Supreme Court without such leave: s.43(2)(d)(ii).

Execution Pending Appeal to the Supreme Court

 You represent a Plaintiff who has won a judgment in the High Court. The losing party
has noted an appeal in the Supreme Court against the judgment.

a) what, in that event, is the status of the High Court judgment? (2)

The judgment is final until it has been overturned, but the judgment will not be
executed pending the outcome of the appeal without an order for execution.

If a party wishes to execute he has to make a formal application to court. The court
has discretion whether to grant leave to execute pending appeal once application is
made.

A party applying for execution must show special reasons why execution should be
allowed.

Note s40(3) of the Magistrates Court Act.

b) What do you do to enable your client to obtain relief pending the appeal if at all? (3)

The High Court has inherent jurisdiction to order an execution of judgment pending
appeal.

If the Plaintiff wishes to execute he should therefore make a formal application to

 court. The court has discretion whether to grant leave to execute pending appeal once
application is made.

In exercising its discretion the court is guided by certain factors. These were set out in
a number of cases such as ZDECO Pvt Ltd v Commercial Careers College (1980)
Pvt Ltd 1991 (2) ZLR 61 (H) and Masimbe v Masimbe 1995 (2) ZLR 31 (S). A party
applying for execution must show special reasons why execution should be allowed.
Also note s40(3) of the Magistrates Court Act.

c) what principles guide the court in determining the said application? (6)

In exercising its discretion on whether to grant execution pending appeal the court is
guided by certain factors, set out in a number of cases such as ZDECO Pvt Ltd v
Commercial Careers College (1980) Pvt Ltd 1991 (2) ZLR 61 (H) and Masimbe v
Masimbe:

1. The possibility of irreparable harm or prejudice being sustained by either party.

2. The prospects of success on appeal, specifically whether the appeal is frivolous
and vexatious.
3. The equities of the case and the balance of hardship; that is, where the
appellant or respondent may suffer harm if execution is ordered (see
Dabengwa and Anor v Minister of Home Affairs and Ors)

d)If such application is dimissed, what recourse if any does your client have? (4)

If the applicant obtains leave of the judge of the High Court or, if that has been
refused, the leave of a judge of the Supreme Court, he she can appeal to the Supreme
Court under section 43(2)(d) of the High Court Act judgment. If the decision of the
judge is effectively a refusal of an interlocutory interdict, then the applicant may
appeal to the Supreme Court without such leave: s.43(2)(d)(ii).

Recovering Fees from a Client/ Taxation of Costs

 ** You send your client a bill in respect of your fees following work that you have
done for him. Your client writes back to you telling you that your bill is exorbitant
and that he is not going to pay it. Explain the procedure you need to follow to
recover your fees? [5] – Qu.20 Nov ‘12

 Your client has refused to pay your fees on the basis that they are exorbitant and not in
terms of the Law Society fee Tariff. What do you need to do before you can institute
proceedings for the recovery of your fees? (3) – Qu. 12 June ‘13

Before recovering costs from a client, a bill of costs must be submitted for taxation of costs
[see Order 38 High Court Rules]. This is a process where a court official, known as a taxing
officer, examines a party’s bill of costs to see if it is in conformity with the relevant tariff.
Every Registrar is a taxing officer for the purpose of taxing costs and may designate such
persons as he deems fit and for whom he shall be responsible as assistant taxing officers
[R306(1)].

Unless the amount of costs has been agreed between the parties, the costs must be taxed by
the taxing officer before they can be recovered.

The party wanting to recover costs must draw up a detailed statement of account for his
fees and disbursements (known as a bill of costs) in accordance with the relevant tariffs:
1. The tariff in respect of any judicial proceedings is set out in Second Schedule to the
High Court Rules.
2. The tariff in respect of work done in connection with any other matter is set out in
the Law Society Tariff [R308(2) and (3)].
3. The tariff in respect of charges for witnesses and qualifying expenses set out in the
Third Schedule to High Court Rules [R310(1) and (2)]
Thereafter the party may then appear before the taxing officer without the other party
having been given notice to justify the bill of costs or on a minimum of 3 days’ notice to
other party where they are not by default; in which case the other party may also be present
at the taxation to raise objections.

The taxation officer allows all costs, charges and expenses as appear to him necessary or
proper for the attainment of justice or to defend the rights of any party [R307]. The taxing
officer may, without filing any formal documents, submit any point arising at a taxation for
decision by a judge in chambers, and it shall be competent for the taxing officer and for the
legal practitioners who appeared at the taxation to appear before the judge respecting such
point [R313]; review of taxation [R311].

If the client still disputes the bill of costs after assessment by the taxation officer, and refuses
to pay, you will need to institute an action against the client by issuing a summons.