QSN 3 TUTORIAL 5.

What is the purpose of third party procedure under Rule 35?

Third-party procedure refers to the procedure in a civil suit whereby a defendant is given
room to join another person who is not a party to suit as co-defendant into the suit on
the grounds that he (the defendant) has a legally recognized claim against that other
person called the third party.

In the Zimbabwe High Court Rules, 2021, third party procedure is as provided for
under Rule 35.

35. (1) Where in any action a defendant who has entered appearance to defend claims
against any person not already a party to the action (in this rule called a “third party”)—

(a) that he or she is entitled, in respect of any relief claimed against him or her, to a
contribution or indemnity from such third party;

(b) that he or she is entitled to any relief or remedy relating to or connected with the
original subject matter of the action and substantially the same as some relief or remedy
claimed by the plaintiff;

(c) that any question or issue relating to or connected with the said subject matter is
substantially the same as some question or issue which has arisen or will arise between
the plaintiff and the defendant, and should properly be determined, not only as between
the plaintiff and the defendant, but as between the plaintiff, the defendant and the third
party or between any or either of them;

the defendant may make a court application to join that person as a third party in the
action.

Thus the import of third-party procedure under Rule 35 permits a party to be added to a
proceeding where the third party’s liability is merely contingent on the defendant’s
liability. The third-party procedure enables liability between plaintiff and defendant, and
defendant and third party to be determined concurrently, in the same proceeding. There
can be no judgment against the third party until the court gives judgment against the
defendant. There must be a nexus between all claims. Although the claims are heard
together, a third-party claim is still a separate and independent part of the proceeding
between the plaintiff and defendant

The application referred to in sub rule (1) shall state the nature and grounds of the claim
or the nature of the question or issues ought to be determined and the nature and
extent of any relief or remedy claimed and shall be served on the third party and on all
other parties to the action.

The court hearing the application may give the third party liberty to defend the action
either alone or jointly with the original defendant, upon such terms as may be just, or to
appear at the trial and take such part therein as may be just. Where the action is tried,
the court may, at or after the trial, enter such judgment as the nature of the case may
require for or against the defendant who has applied for joinder of the third party,
against or for the third party, and may grant to the defendant or to the third party any
relief or remedy which might properly be granted if the third party had been made a
defendant to an action duly instituted against him or her by the defendant, provided that
execution against the third part shall not be issued without leave of the court until after
satisfaction by the defendant of any judgment given against him or her in the action.

In the case of Kheirs Financial Services Pty Ltd v Aussie Home Loans Pty
Ltd [2010] VSCA 355 at [20], Cassels J said:

‘‘The cause of action which entitles a defendant to bring a third party before the court is
the liability of the third party to make contribution or pay an indemnity. That cause of
action has not arisen until the liability of the defendant has been ascertained. Under [the
relevant statute and Rules of Court] governing third-party proceedings, notice of them is
given to a third party before liability is established. It is one of the peculiarities of that
procedure which enables this to take place before there is any liability. But the plaintiff
can never get a judgment against the third party; .... Neither, in such proceedings, could
the defendant succeed and yet leave the plaintiff with judgment against the third party. It
is only on the defendant’s being made liable that the defendant has any cause of action
against the third party. Whatever for convenience of procedure may be the order for
directions for the trial, however the witnesses may be called and heard, or whether the
proceedings by the plaintiff against the defendant are tried at the same time as the
proceedings by the defendant against the third party matters not. The position is quite
clear. The proceedings by the defendant against the third party are independent of and
separate from the proceedings by the plaintiff against the defendant, except that, when
the defendant is made liable to the plaintiff, he then has his right open against the third
party to establish, if he can, that he possesses a right to indemnity and contribution from
that party’. ...”

QSN 4 TUTORIAL 5.

What is a claim in reconvention?

an action brought by the defendant in pending litigation against the plaintiff: the
defendant's claim must be connected in some way with the subject matter of the
plaintiff's action. An action brought by the defendant against the plaintiff before the
same judge.

In the Zimbabwe High Court Rules, 2021, claim in reconvention is as provided for
under Rule 38.

38. (1) A defendant who counterclaims shall, together with his or her plea, deliver a
claim in reconvention setting out the material facts thereof in accordance with rules 13
and 36. Provided that with the consent of the plaintiff or if no such consent is given, with
the leave of the court, a claim in reconvention may be filed and delivered at a later
stage.

In Stewart Mungofa vs William Sande and Drusillia Mungofa HC 1972 of 2006 the
second respondent instituted proceedings for divorce and ancillary relief in case No. HC
1195/04 against the applicant. The applicant filed a counter-claim in which he cited the
first respondent as the second defendant in that matter. He claimed from the first
respondent adultery damages alleging that the first respondent was the man with whom
the second respondent had committed adultery. The applicant now sought to join the
first respondent to the original filed matter.
How does one proceed when there is a claim in reconvention (Plaintiff and
Defendant)?

The procedure for such claim in reconvention is as outlined under sub rules (2)-(11).

(2) The claim in reconvention shall be set out either in a separate document or in a
portion of the document containing the plea, but headed ‘Claim in Reconvention’ and it
shall not be necessary to repeat therein the names or descriptions of the parties to the
proceedings in convention.

(3) The claim in reconvention may set out any right or claim the defendant in an action
may have against the plaintiff and such claim in reconvention shall have the same effect
as a cross-action, enabling the court to pronounce a final judgment in the same action
both on the original claim and on the claim in reconvention.

(4) Where a defendant establishes a counterclaim against the claim of the plaintiff and
there is a balance in favour of one of the parties, the court may give judgment for the
balance, so, however, that this provision shall not be taken as affecting the court’s
discretion with respect to costs.

(5) A claim in reconvention may incorporate the facts and allegations already set forth in
the plea, or in the declaration and admitted in the plea, by reference to the relevant
paragraphs of the plea or declaration as the case may be.

(6) 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.

(7) Where the defendant who has filed a claim in reconvention makes default at the trial,
the plaintiff shall be entitled to an order of absolution from the instance in respect of the
claim in reconvention.

(8) If the defendant is entitled to take action against any other person and the plaintiff,
whether jointly, jointly and severally, separately or in the alternative, he or she may with
the leave of the court proceed in such action by way of a claim in reconvention against
the plaintiff and such other persons, in such manner and on such terms as the court
may direct.

(9) A defendant who has been given leave to counter claim in terms of sub rule (8) shall
add to the title of his or her plea a further title corresponding with what would be the title
of any action instituted against the parties against whom he or she makes claim in
reconvention, and all further pleadings in the action shall bear such title subject to the
proviso to rule 36(1)(b).

(10) A defendant may counter claim conditionally upon the claim or defence in
convention.

(11) If the defendant fails to comply with any of the provisions of this rule, the claim in
reconvention shall be deemed to be an irregular step and the other party shall be
entitled to act in accordance with these rules providing for action against an irregular
step.