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CIVIL PROCEDURE LECTURE NOTES

Lecturer: Rodgers Matsikidze

Email: rodgersmatsikidze1982@gmail.com
0775583333
0718583333

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Lecturer: Rodgers Matsikidze

Email: rodgersmatsikidze1982@gmail.com
0775583333
0718583333

INTRODUCTION TO CIVIL PROCEDURE IN THE SUPERIOR COURTS.

What is civil Procedure?

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

Distinction between Civil Procedure and Criminal Procedure.

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

Which Courts constitutes the Superior Courts of Zimbabwe

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

Zimbabwe that does not have a corresponding statute that speaks of its establishment and
defines its purpose and functionality. All the courts in Zimbabwe are created by the
Constitution of Zimbabwe and corresponding Acts of Parliament.
 According to section 166 of the Constitution, the Constitutional Court is a superior
court of record.

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 Section 167 stipulates that the Constitutional court is the highest court in all
Constitutional matters and its decisions are bind all other courts.
 Section 168 of the Constitution establishes the Supreme Court and speaks of it as a
superior court of record. According to section 169 of the Constitution the Supreme Court
is the final court of appeal for Zimbabwe, except in the matters over which the
Constitutional court has jurisdiction.
 Section 170 of the Constitution refers to the High Court as a superior court of
record. Section 171 of the Constitution provides for the jurisdiction of the High Court.

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

Civil procedure refers to the embodiment of rules emanating from the Constitution, the
Acts of parliament and the rules of court and common law that are designed to regulate
and manage the processes in court. Civil procedure ensures that justice is accessed in
courts due to the following reasons;

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

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

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

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Purpose of Civil Procedure

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

Distinction between Adversarial and Inquisitorial Judicial system.

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

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

The principles underlying the adversarial system

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Lovemore Madhuku, Introduction To Law Page 107

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

The sets of rules and procedures in the Superior courts of Zimbabwe

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

CONSTITUTIONAL COURT

 The Constitution of Zimbabwe

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

THE SUPREME COURT

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

THE HIGH COURT

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

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Action procedure v Application procedure

Form of proceedings

There are two basic forms of proceedings which may be used for instituting proceedings
in the High Court.
(i) Application (by way of notice of application or affidavit) affidavit of evidence.
(ii) Action – summons and (2) ZLR 338

When and when not to use Application procedure

There are circumstances were application procedures are not used e.g in matrimonial
matters; claims for unliquidated damages – it means they are not yet been qualified by the
court and difficult to ascertain.

See Room Hire Co. v Jeppe Street Mansions 1949 (3) SA 1155

i. Claim for provisional sentence ie. O 4 Rule 20 specifically says it should be by way
of summons.

ii. Civil imprisonment (go by way of summons O41 Rule 368)

There are situations were required to use application procedures.

(1) where directed by statute

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

 If it’s a straight-forward money claim where you don’t anticipate any opposition then
it is less expensive to use action and application procedure. Choose the less
expensive one because if you use the more expensive one you will be penalized with
costs.

 Whether or not there is a material dispute of fact. If there is a material dispute of fact
then don’t use application proceedings.

Cases on material dispute of facts

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

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

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

"Now in the present case I have not the slightest doubt that the applicant should have
realized that a serious dispute of fact was to develop as between himself and both
respondents. Should I nevertheless, in the interest of saving costs and generally getting on
with the matter, condone the wrong procedural approach? In my view it would be wrong
to do so. There are a number of reasons. In the first place this is a very clear example of
the wrong case of procedure. The conflicts of fact were glaring and obvious and were in
fact referred to in the applicant's affidavit. In the second place the claim for damages was
clearly illiquid and would patently need examination by way of evidence".

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

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

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

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

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Held: On the issue of waiver of breach the court held that the facts the respondent had
not been aware of the payment and had tendered return of payment when he became
aware of it. It was stated the lease was automatically terminated when realized that the
premises were being used as a brothel.

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

What happens when there is material dispute of facts?

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

Soffiantini v Mould 1956 (4) SA 150

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

i. There was a genuine dispute of fact which could not be resolved on affidavit
evidence.

ii. The Judge a quo should have directed oral evidence to be heard.

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

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

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

o If the court discovered that there is a material dispute of fact and cannot be resolved
on affidavit, it has 3 options;

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o It can dismiss the application

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

Musevenzo v Beji & Anor HH-268-13

Mafusire J

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

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

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

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Circumstances where a matter may be dismissed

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

When a matter is referred to trial O23 R159

Chirinda v Chitepo and Anor SC 42/92

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

The court held that the fact that one died a natural death and of the names was
immaterial. On issues of signatures, it was alleged that the first defendant was privy to
the negotiation. The court had dismissed the application because it had differed
substantially with the one on the deceased drivers’ licence. On appeal the court said that
the dispute should have been referred to trial and it gave two reasons;

There were other documents purportedly signed by the deceased which had different
signatures i.e marriage certificate, agreement of sale entered into between the deceased
and Chitungwiza Town Council. The daughters of the deceased who were witnesses to
the agreement of cession alleged that they had one so under duress.

The court held that these matters should only be investigated at trial. The appeal was
allowed.

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

See Jongani v Kadenhe SC 24/92

When oral evidence on the dispute should be heard (O23 R159).

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

Bhura v Lalla 1974 (2) SA 336.

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

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

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

READ
Barklie v Bridle 1955 SR 350
Masango v Masango HH 324/84
Shana v Shana 1990 (2) ZLR 129
Zimbabwe Bonded Fibre Glass Pvt Ltd v Peech 1987

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Can there be claims in reconvention in motion proceedings

No claim in reconvention in motion proceedings

Sumbureri v Chirinda 1992 (1) ZLR 240

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

In notice of motion proceedings, the respondent should according to the rules of court,
confine his opposition to a defense, he should not, in the opposing affidavit launch an
attack on the applicant and make a claim in reconvention.

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

JURISDICTION

General principles
Jurisdiction refers to the authority or the competence of a particular court to hear a matter
which has been brought before it and to grant relief in respect of that matter. It is
important for the parties or counsel to the plaintiff as part of its preparations to a case to
be able to determine whether a particular court has the jurisdiction to hear and determine
on a matter. The effect of a party issuing a case in a court with no jurisdiction to hear the
matter might result in the court refusing to adjudicate and dismiss the matter. The court
may also order the plaintiff to pay wasted costs. This may have great repercussions in the
circumstance where the plaintiff’s claim has prescribed. Such in such circumstances
prescription will prevent the plaintiff from succeeding even in the appropriate court.

It is important for the plaintiff to choose the court with the right jurisdiction; failure to do
so allows the opposing party to defeat the claim without entering into the merits or
substance of the claim.

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Jurisdiction of the High Court

The High Court is created by the High Court Act Cap 7:06. It has jurisdiction under both
common law and statute. In terms of the common law the High Court has inherent
jurisdiction – it can order anything or determine any case which is not prohibited by law.
The jurisdiction of the High Court is provided under section 171 of the Constitution of
Zimbabwe. Section 171(1) stipulates that;

The High Court;

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

 READ SECTION 171 IN FOR EXTENSIVE DETAIL.

Principles of common law: jurisdiction of high court is exercised

Inherent jurisdiction

Inherent jurisdiction refers to the power of the court to hear and adjudicate on any matter
that is not prohibited by a statute. This inherent power is accorded to superior courts in
Zimbabwe.

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

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

Mathonsi J

Applicant was employed by the respondent as a quality controller and was dismissed
following a disciplinary hearing. She appealed to the manufacturing director who upheld
the disciplinary committee’s decision. She further appealed to the Director of Corporate
Services who dismissed the appeal. The director advised her to appeal to the Labor Court.
Instead she filed an urgent application and a review application with the High Court.
Section 89 of the Labor Act was referred to. It provides that
“No court other than the Labor Court shall have jurisdiction in the first instance to hear
and determine any application, appeal or matter referred to in section 1”

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

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See also, Munodawafa v District Administrator, Masvingo, & Ors HH-571-15, where it
was held that constitutionally, as provided for by s 171, the High Court has inherent
jurisdiction to hear all civil and criminal matters throughout Zimbabwe. The High Court
is therefore always a forum of jurisdiction that can be selected by the parties and the court
will exercise its jurisdiction where it is clear that it should do so. Critically, however,
where domestic remedies for resolving the issue are provided, as here, the court will want
to know why it should exercise its inherent jurisdiction if such remedies have not been
exhausted. There was no reason why the remedies provided in s 283 of the Constitution
should not be exhausted first.

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When security costs may be required to confirm jurisdiction

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

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

(Mathonsi J)

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

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

Zendera v Macdade and Anor 1982 (2) ZLR 18

Because the respondents were peregrine the applicant sought for the respondents’
security for costs which he could incur in the contesting the motion proceedings

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Held: Dismissing the application that the object of the rule requiring a peregrinus to give
security for the defendant’s costs is to make sure that the incola will not suffer any loss if
he is awarded costs

Common law principles on Claims Sounding in Money (for payment of money).

There are common law principles and this depends on whether the party is an incola or a
peregrinus. An incola is a person who is either domiciled or resident within the court’s
jurisdiction. A peregrinus is a person who is neither resident nor domiciled in Zimbabwe
or within the court’s jurisdiction.

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

Incola Plaintiff v Peregrine Defendant

There are three different circumstances in which the courts have jurisdiction at common
law.
(1) If the defendant submits to the court’s jurisdiction (doctrine of submission).
(2) If it is the court within whose area of jurisdiction the cause of action arose. Cause of
action is not enough because of the doctrine of effectiveness. The court will not hear the
claim unless the peregrine defendant either had no property in Zimbabwe which can be
attached to confirm the jurisdiction of the court or the peregrine defendant is in
Zimbabwe and can be arrested to confirm the jurisdiction.

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

(Mathonsi J) (Judgment delivered 18 June 2014)

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

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Gwisai v Shamuyedova & Ors HH-623-15

Judgment by Uchena J

Under s 15 of the High Court Act [Chapter 7:06], the court may exercise jurisdiction over
a peregrinus
(a) founded on or confirmed by the arrest of any person or attachment of any property;
(b) who is or which is in Zimbabwe, and
(c) can permit or direct the issue of process, for service in or outside Zimbabwe
(d) without ordering such arrest or attachment. This means that if the property or person
is outside the country it or he cannot be attached or arrested. The absence of a person who
can be arrested or property which can be attached to found or confirm jurisdiction is a
critical consideration in deciding whether or not the court has jurisdiction and can issue
process. The absence of a person who can be arrested or property that can be attached has
the effect of defeating the principle of effectiveness, which is central to the issue of
whether or not a court has jurisdiction. However, if the court believes that there is a
person to be arrested or property to be attached to found or confirm jurisdiction within
Zimbabwe, it can grant an application for edictal citation. The issuance of that process
will, because of the presence of a person or property to be arrested or attached to found or
confirm jurisdiction, itself found or confirm the court’s jurisdiction

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

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

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

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

Held: Decided that the property should confirm with the requirements of the doctrine of
effectiveness although it does not have to be sufficient to satisfy the judgment which may
be given in the case – it must not be trifling value.

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Where there is attachment of property or arrest of the peregrine to found and create
jurisdiction (Thermoradiant (supra)

Central African Airways Corporation v Vickers Armstrong Ltd 1956 (2) SA 492 was an
appeal from the decision of the HC-S-Rhodesia. The claim arose from the loss of an
aircraft whilst on a flight over Tanganyika (Tanzania). The plaintiff was incola and
defendant peregrinus. The aircraft had been supplied by the defendant. The crash was
caused by the breakup of the air craft following the fracture of a win which was caused
by collision of a bolt hole. It was alleged that the defendant had been negligent in that he
had used an unplated bolt which was susceptible to corrosion and yet did not make the
bolt accessible to inspection nor indicate that the inspection was necessary.

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

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Suing a peregrinus defendant in Zimbabwe, procedure

Wenzhou Enterprises v Chen HH-61-15

Makoni J

The general rule in our civil practice and procedure is that a person domiciled and
resident in a foreign country cannot be sued in our courts as they do not have jurisdiction
over that person. For that reason, there is usually need for an attachment ad fundandam
jurisdictionem of that person or his property in order to make him amenable to the
jurisdiction of the court. Such person or his property can only be attached while he within
the jurisdiction of the court and only after the attachment order has been issued by the
court. Although the main object of the attachment is to find or confirm jurisdiction, a
further object of the attachment is to furnish an asset against which execution can be
levied to satisfy the judgment which may be given so that the court’s sentence will not be
rendered nugatory. However, a peregrinus may submit to the jurisdiction of the court.
Submission can take many forms, which can run from a formal consent contained in a
written contract to consent from the bar, submission can also be implied. An implied
submission to jurisdiction must be clear so as to establish it as a legal certainty. Failure to
defend legal proceedings instituted does not necessarily constitute submission to the
jurisdiction of the court, nor can the fact that a defendant contested another issue, in
addition to the issue of jurisdiction, be construed as a clear tacit acceptance by the
defendants of the court’s jurisdiction. However, where the defendant pleads to the merits
without contesting the court’s jurisdiction, or files a notice of opposition and heads of
argument, it can be said that he has submitted to the court’s jurisdiction. If there had ever
been an intention to contest jurisdiction, the issue should have been raised in limine,
before the adjudication on the merits. Raising the issue only on the day of the hearing
would indicate that there never was an intention to contest the issue of jurisdiction.
Court– local court– customary law procedure applicable rather than general law – functus
office.

Peregrine Plaintiff v Peregrine Defendant

i. The court will have jurisdiction if there is submission to the jurisdiction of the court.
By instituting proceedings in that it would have accepted jurisdiction.

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

iii. S15 of the HC Act provides that actual attachment of the property or actual arrest of the
defendant is not necessary as long as it has been established that there is indeed
property which can be attached within the jurisdiction or that the peregrine defendant is
actually within the jurisdiction and can be arrested. This was emphasized in Ex parte
Motor Construction Ltd 1962 (2) SA 664.

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

Where property is attached to found or confirm jurisdiction is the subject matter of

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

Where the property sought to be attached to found or confirm jurisdiction is the only
property that the peregrine defendant has within the jurisdiction and there is a danger of
its removal from its jurisdiction.

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

In this particular case a leave to attach property was granted because there was a danger it
might be removed.

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

African Distillers Ltd v Zietkiewiz 1980 ZLR 135

Both the plaintiff and defendant were peregrine. It was an action for damages arising
from breach of contract and the parties were seeking to rely on s15. The court had no
jurisdiction because neither the property of the peregrines nor the person was unavailable
within the jurisdiction of Zimbabwe or attachment for arrest.
N.B/ An artificial person is a company incorporated in Zimbabwe is an incola or if it is
registered in Zimbabwe. All those incorporated outside Zimbabwe are peregrine.

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Common law principles governing property claims

In terms of immovable property, the court that has jurisdiction in relation to a claim for
immovable property is the court within whose area of jurisdiction the property is situated.

Eilon v Eilon 1965 (1) SA 703 AD

In relation to movable property the situation is the same although it is still not clear
whether if the defendant if the defendant or peregrinus they should be attachment to
confirm jurisdiction.

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

Both parties were peregrine. The plaintiff had sold the defendant a quantity of peas in
Malawi for delivery to India via Harare and Beira. Half of the peas were shipped to India
in terms of the contract but while the other half were still in Harare the defendant
terminated the contract. The plaintiff applied to the HC for leave to attach a consignment
in Harare, confirm jurisdiction of the court, a claim for specific performance. The HC
decided against the plaintiff on the basis that the intended action was a personal right
rather than a real right. Alternatively, the HC refused application on the basis of the
balance of convenience was in favour of the matter being heard in Malawi than in
Zimbabwe. On appeal the SC held that the HIC had jurisdiction on the basis of forum rei
state (court of the place where the property was situated) and this applies whether the
right claimed in relation to a particular property is a real or personal right.
Read Granger v Minister of State (1984 (1) ZLR 194.

Common Law Limitations to Jurisdiction

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

The Prosecutor General v Shokorino Choga

High Court of Zimbabwe (Harare)

HH 255/15

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

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

Further Held the first respondent violated section 8 of the Money Laundering and
Proceeds Act and therefore section 86 of the same act applied to him. The first
respondent was found guilty of contempt of court by the magistrate hence his evasion
from the jurisdiction fearing committal makes him a fugitive from justice. Section 86 of
the money laundering act bans a fugitive from justice from having any right of audience
in the courts.

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

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

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

 Subject matter – outside the jurisdiction of Zimbabwean courts e.g immovable property
situated outside Zimbabwe. Go to the place and property is situated.

First National Bank of Namibia v Kame 1999 (2) ZLR 269 (H)
The applicant bank sued for judgment on a mortgage bond securing a loan on the
purchase of property in Namibia. It also sought an order seeking the property to be
especially executable.

Held that the courts of Zimbabwe have no jurisdiction to make such an order. It would be
necessary for the applicant to seek such an order from a Namibian court in recognition of
the Zimbabwean court’s decision. Judgment would otherwise be entered for the plaintiff.

 Revenue law is subject to bilateral agreements but revenue laws of another country
cannot be enforced in Zimbabwe.

 Political law formed in other country.

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

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

See the case of Karimatsenga v Tsvangirai & Ors HH-369-12 (Guvava J)-The applicant
and the first respondent were lovers. The applicant became pregnant by him. She claimed
that thereafter he sent his representatives to the applicant’s family and married her in
terms of customary law. The applicant proceeded to the first respondent’s rural home
where she stayed with the latter’s mother for two months. When the applicant was 7½
months pregnant she suffered a miscarriage and lost the baby. Subsequently, she learned
that the first respondent was going to marry the second respondent in accordance with the
Marriage Act [Chapter 5:11]. Fearing that if the first respondent were to marry the second
respondent in terms of the general law she will cease to be his wife by operation of law,
the applicant sought an urgent order to stop the proposed marriage. The first respondent,
although admitting a relationship with the applicant, denied having married her in terms
of customary law. The respondents raised a number of defenses, the first of which was
that the court had no jurisdiction to give the order applied for. Their argument was that
the legislature had appointed through statute the persons who should deal with an
objection to a marriage. The applicant’s argument was that the High Court had inherent
jurisdiction to deal with all matters.

It was held that each court is a creature of statute, and its powers are created and defined
by statute. If one court were to claim that it has same inherent power to overrule another
court, instead of a power specifically created by statue, in effect it would be claiming the
power to nullify the body of statute law which specifically relates to the establishment
and powers of each of the civil courts in the country. The High Court cannot invoke its
inherent powers to take away powers which have been given to another court or person in
an Act of Parliament. Section s 19 of the Marriage Act sets out the procedure to be
adopted by a person who wishes to object to a marriage. An objection must be lodged
with the person publishing banns of marriage, the magistrate who issues a marriage
licence, or the marriage officer who is to solemnise the marriage. Once the applicant
became aware of the intended marriage she should have lodged her objection in writing
with to the marriage officer who was to solemnise the marriage. As a magistrate had
issued a marriage licence, she could also have lodged an objection with the magistrate. It
was not for the High Court to usurp the powers of the magistrate and the marriage officer
and take over their functions. If the court were to use its inherent powers to take over the
functions of the lower courts, that would be tantamount to amending legislation through
the back door.

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See the case of Nyaguwa v Gwinyai 1981 ZLR 25 where the petitioner and respondent
had entered into a contract of lease in respect of business premises on the 15 th of July
1976. The monthly rental was $120.00 payable in cash in advance at the shop on or
before the 5th day of the month. Upon breach of the contract the landlord (respondent)
was entitled to cancel the lease, eject the tenant regardless of any previous acceptance of
late payment. In the lease agreement the parties had agreed to submit to the jurisdiction
of the magistrate court in Salisbury in respect of any case relating to the agreement. In
December 1980 the respondent issued summons claiming cancellation of the agreement
and ejectment of the petitioner on the basis those on 14 different occasions between
February 1979 and June 1980 the petitioner had paid later than the 5 th day of the month.
The petitioner did not see the summons so a default judgment was entered and a warrant
of ejectment was issued. The petitioner saw the warrant when it was served on 16 th
January 1981. On the 19th of Jan 1981 the petitioner filed a petitioner with the HC
seeking the order restoring the property to him pending the application for rescission of
default judgment granted by the magistrate’s court. The petitioner was relying on the
High Court’s jurisdiction to remedy injustice.

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

FURTHER IT WAS RULED that the application by the petitioner should be dismissed
because the High Court had no jurisdiction to interfere with the proceedings of the
magistrates court.

The High Court Has Jurisdiction in Constitutional Cases

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

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

In the case of Net-One Cellular (Pvt) Ltd v Min of Labor & Anor HH-211-15 (Makoni J)
(Judgment delivered 25 February 2015.

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In an application brought before the coming into effect of the 2013 Constitution, the
applicant sought to challenge the constitutionality of s 82(1)(a) of the Labor Act [Chapter
28:01] and ss 2 (a), 33 and 36 of the Collective Bargaining Agreement (CBA) for the
Communications and Allied Services Industry, published in SI 1 of 2012, in terms of
which the Agreement was deemed to be binding on the applicant, although it had not
been a party to its formulation and had no wish to be a member of the relevant national
employment council. It argued that its rights of freedom of association under s 21(1) of
the 1980 Constitution were being infringed and that its right under s 16 not have its
property compulsorily acquired was infringed by being made to pay subscriptions. The
respondents argued that the High Court had no jurisdiction in constitutional matters and
that the matter should be decided in the Labor Court.

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

JURISDICTION OF THE SUPREME COURT

Appellate jurisdiction

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

Jurisdiction in civil appeal cases

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

i. The Supreme Court is the final court of appeal for Zimbabwe, except in Constitutional
matters over which the constitution has jurisdiction.

ii. Subject to subsection 1, an act of parliament may confer additional jurisdiction and
powers on the Supreme Court.

The Constitution stipulates that the Supreme Court is the final appellate court. The
court has no original jurisdiction and therefore it is not a court of first instance. Its

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jurisdiction and procedure is elaborated in the Supreme Court act under chapter IV of
the same.

Section 21 of the Supreme Court Act provides that

1. The Supreme Court shall have jurisdiction to hear and determine an appeal in any
civil case from the judgment of any court or tribunal from which, in terms of any
other enactment, an appeal lies to the Supreme Court

2. Unless provision to the contrary is made in any other enactment, the Supreme Court
shall hear and determine and shall exercise powers in respect of an appeal referred to
in subsection (1) in accordance with this Act

Section 22 of the Supreme Court Act provides for the powers of the Supreme Court. It
provides that

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

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

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

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

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

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

Concurrent review jurisdiction.

In the case of Kwaramba v Bhunu NO S-46-12 Chidyausiku CJ, in chambers ruled that
the Supreme Court had inherent review powers-concurrent jurisdiction.
The applicant was one of the team of legal practitioners representing 29 persons who
were accused of murdering a police officer. The trial of the accused persons had
commenced in the High Court. The applicant, on behalf of the accused persons, made a
bail application, which the State opposed. The court, presided over by the respondent,

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reserved its judgment. The trial continued while awaiting judgment on the bail
application. While judgment was pending on the bail application, an article appeared in a
newspaper stating the applicant had said that the law was not being applied fairly and that
justice was being politicized because the accused belonged to a particular political party.
The applicant admitted being asked to comment on the manner in which the wheels of
justice were turning in the matter and that he expressed disappointment at the lengthy
stay of his clients in remand prison. He said that although the article was to some extent
true, it contained several inaccuracies, which inaccuracies probably created the wrong
impression in the minds of readers, including the presiding judge. The respondent,
disturbed by the article, summoned all the legal practitioners in the matter to his
chambers. There he expressed his concern over the contents of the article and asked the
legal practitioners to comment. The applicant indicated to the respondent that the article
was inaccurate and that there was no intention whatsoever on his part to attack the court
or make adverse comments. He tendered his apology to the respondent if the wrong
impression had been created. He alleged that the newspaper had misquoted him or
misrepresented him. He assumed that the matter had been resolved, but when the
respondent gave his decision on the bail application in court, he castigated the applicant
for his communication with the newspapers, accusing him of “demonising and attacking
the dignity and integrity of this court and the judiciary of this country in general”. He
described the applicant’s remarks as being “ill conceived” and “malicious” and said that
the applicant was bent on bringing the due administration of justice into disrepute. He
concluded by describing the applicant as “dishonest, slanderous, contemptuous and
unethical”. The applicant, aggrieved by the remarks, requested that a judge of the
Supreme Court give directions in terms of s 17(h) or s 25 (3) of the Supreme Court Act
[Chapter 7:13] that a review of the matter be instituted.

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

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

The applicant did not seem to appreciate what is expected of him as a legal practitioner
and an officer of the court. The remarks ascribed to him did not only scandalize the

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respondent but were also made while the matter was sub judice. A time honoured practice
which has crystallized into law prohibits the making of inappropriate statements on
matters pending before the courts. The statements ascribed to the applicant grossly
transgressed the sub judice rule and clearly constituted contempt of court, in that they
scandalize the court by ascribing to it political motivation in its judgment. The
inescapable inference is that the remarks were made not only to bring the court into
contempt in the eyes of the public but also in an attempt to influence the outcome of the
bail application and consequently the course of justice. The applicant was lucky that he
was not prosecuted for contempt of court. He should have immediately issued a statement
disassociating himself from the contents of the article and denying that he ever uttered the
words ascribed to him by the newspaper. He should also have urgently sought audience
with the judge to assure him that he never said the words ascribed to him. Instead he only
offered a wishy-washy explanation upon being asked about the matter.

However, note provisions of S53 of the HC Act where if somebody takes a matter to the
HC which could have been heard in the magistrate’s court then if that person is
successful or if they are successful they shall not recover any costs in excess of those
which would have been recovered if they had instituted the proceedings in the
magistrate’s court. If not, successful they will be ordered to pay costs on a higher scale of
a legal practitioner and client.

Appeals in Supreme Court-procedure

Except in constitutional matters, the Supreme Court is the final court of appeal. The court
deals only with the questions of law in respect of the decision by the lower court. This
means that a judge of the Supreme Court, on appeal, is guided by the evidence in the
record.

The commencement of the appeals procedure is by noting of an appeal in terms of r 29 of

the Supreme Court rules signed by the appellant or his or her legal practitioner. The
notice of appeal must be filed with the Registrar and r 29 (2) provides that once the notice
has been filed, it must thereafter be served on the respondent.

A question arises regarding non-compliance with the rules in this aspect so as to render
the appeal fatally defective. The court has a wide discretion and may condone non-
compliance in terms of r 4 of the Supreme Court rules which provides for departure from
rules.

There are certain essential elements which make the appeal valid. These are;

(a) the date on which, and the court by which, the judgment appealed against was given;

(b) if leave to appeal was granted, the date of such grant;

(c) whether the whole or part only of the judgment is appealed against;

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(d) the grounds of appeal in accordance with the provisions of rule 32;

(e) the exact nature of the relief which is sought;

(f) the address for service of the appellant or his attorney

See R 29

Regarding the grounds of appeal, R 32 provides that;

 The grounds of appeal shall be set forth concisely and in separate numbered paragraphs.
 The appellant, whether on appeal or on cross-appeal, shall not without leave of the court
urge or be heard in support of any ground of appeal not set out when the appeal was
entered, but the court in deciding the appeal shall not be confined to the grounds so stated
 After the noting of an appeal, the respondent is entitled to enter a cross-appeal within ten
days of the entry of appeal in terms of r 29.

The appellant may abandon an appeal through a notice served on the Registrar and the
respondent. The Respondent may apply to a Judge for an order of costs incurred during
the appeal or cross-appeal to that effect. See r 37

LEADING OF EVIDENCE IN AN APPEAL (REQUIREMENTS OF THE

APPLICATION)

The basic requirements of an application for the leading of evidence on appeal were set
out by HOLMES JA in S v de Jager 1965 (2) SA 613 as follows;
(a) There should be some reasonably sufficient explanation, based on allegations which
may be true, why the evidence which it is sought to lead was not led at the trial
(b) There should be a prima facie likelihood of the truth of the evidence
(c) The evidence should materially be relevant to the outcome of the trial.

The non-fulfillment of any of the requirements would ordinarily render the application
fatal.

Other processes to Supreme Court

Section 25 of the Supreme Court Act provides for review powers of the Supreme Court.
The section provides as follows;

(1) Subject to this section, the Supreme Court and every judge of the Supreme Court shall
have the same power, jurisdiction and authority as are vested in the High Court and
judges of the High Court, respectively, to review proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2) The power, jurisdiction and authority conferred by subsection (1) may be exercised
whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court
that an irregularity has occurred in any proceedings or in the making of any decision

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notwithstanding that such proceedings are, or such decision is not the subject of an
appeal or application to the Supreme Court.
(3) Nothing in this section shall be construed as conferring upon any person any right to
institute any review in the first instance before the Supreme Court or a judge of the
Supreme Court and any provision may be made in the rules of court, and a judge of the
Supreme Court may give directions, specifying that any class of review or any particular
review shall be instituted before or shall be referred or remitted to the High Court for
determination.

An understanding of the section shows five (5) essential aspects which are as follows;

1. It confers review jurisdiction on the Supreme Court and every judge of the Supreme
Court;
2. The review jurisdiction conferred on the Supreme Court and every judge of the Supreme
Court is of the same level as the High Court or a Judge of the High Court and is over
inferior courts, tribunals and administrative authorities;
3. The review jurisdiction is exercisable by the Supreme Court and/or every Judge of the
Supreme Court mero motu when an irregularity comes to its/his attention;
4. In terms of s25 of the Act, no person has a right to institute review proceedings in the
first instance in the Supreme Court; and
5. The section provides for the making of rules for review by the High Court and also for
the Supreme Court or any Judge of the Supreme Court to remit a matter for review to the
High Court.

The Chairman Zimbabwe Electoral Commission and Anor v Roy Leslie Bennet and Anor
SC 48/05
ZIYAMBI J; It appears to me that the effect of subsections (2) and (3) of s 25 of the
Supreme Court Act is that although the Supreme Court may correct an irregularity in
proceedings or in the making of a decision which comes to its attention, not necessarily
by way of appeal or application, no person has the right to institute any review in the first
instance before this Court. Thus it is open to a party aggrieved by proceedings in a lower
court to apply directly to the Supreme Court on review for redress. This much is clear
from the wording of s25 (3) of the Supreme Court Act.

JURISDICTION OF THE CONSTITUTIONAL COURT.

The Constitutional Court is established by section 166 of the Constitution. According to

the section 167 it is a superior court of record and it is the highest court in all
Constitutional matters. The procedure in the Constitutional Court is governed by the
Constitution, the Constitutional Court Rules 2016, and the Practice Directives of the
Constitutional Court no 2 of 2013 and according to rule 45 by the Supreme Court rules in
areas where there are gaps in the Constitutional rules.

Magurure & 63 Others v Cargo Carriers International Hauliers (Pvt) Ltd. (SABOT)
(CCZ 15/2016

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DEFINITION OF A CONSTITUTIONAL MATTER

A constitutional matter arises when there is an alleged infringement of a constitutional

provision. It does not arise where the conduct the legality of which is challenged is
covered by a law of general application the validity of which is not impugned. The
question whether an alleged conduct constitutes the conduct proscribed by a statute
requires not only proof that the alleged conduct was committed, it also entails that the
statutory provision against which the legality of the conduct is tested be interpreted to
establish the content and scope of the conduct proscribed before it is applied to the
conduct found proved.

Court of first instances in specified constitutional matters.

APPLICATIONS IN TERMS OF CHAPTER 4 OF THE CONSTITUTION.

 Rule 22 provides for the procedure for approaching the constitutional court whether an
allegation of violation of the bill of rights. If party intends to approach the court as the
court of first instance in the matter, an application for direct access must first be done
and the rules in rule 21 apply.
 Such procedure is by way of court application and the procedure as to court
applications applies mutatis mutandis.
 Application is to be signed by the applicant or his or her legal practitioner and shall be
furnished with the following elements
 where relevant, the date on which direct access was granted
 The nature of violation being alleged
 The basis upon which the applicant seeks relief
 The nature of the relief sought
 The physical address of service of the applicant.
 Proof of service is to be filed with the registrar within two days of such service.

The procedure that applies in court applications applies with equal effect on court
applications in terms of chapter 4.

 After the filing of an answering affidavit, or the expiry of 10 days after the filing of a
notice of opposition and the founding affidavit, the registrar may require the parties to
file their heads of argument.

Chihava and ors v Principal Magistrate And Anor 2015 ZLR 31

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The applicants approached the constitutional court in terms of s 81 (1) of the Constitution
of Zimbabwe alleging that the manner in which criminal proceedings against them were
conducted in the magistrate court were a breach of their fair trial rights enshrined in s 70
of the constitution. They sought an order quashing the proceedings and directing a trial de
novo before a different magistrate. The applicants filed their application while
proceedings were still pending in the magistrate court. The respondents raised a point in
limine contending that since the application was premised on a constitutional issue that
arose during the course of proceedings in the magistrates’ court, the only course open to
the applicants was a referral in terms of section 175 (94) of the constitution.

HELD: upholding the point in limine, that any constitutional issue that arises during
proceedings in a lower court ought to and must be brought to the constitutional court only
upon a referral in terms of section 175 (4) of the constitution.

HELD FURTHER, that if, however a lower court improperly refuses to refer a matter in
terms of section s 175 (4), an unsuccessful applicant is entitled to approach the
constitutional court directly in terms of section 85 (1).

HELD, FURTHER THAT section 85 (1) of the Constitution must not be given a literal
and grammatical meaning that has the effect of giving any person a direct and unfettered
access to the constitutional court, without regard to order and certainly in court process.

HELD, further that in interpreting section 85(1) and 175 (4) of the Constitution, a
generous and purposive interpretation has to be adopted to avoid the absurdity and
disorder that would arise from parallel proceedings being pursued in the constitutional
matter

CHALLENGE OF THE ELECTION OF THE PRESIDENT OR A VICE

PRESIDENT.
To be done in terms of order 23 which stipulates that it must be done through a court
application. The application is to be filed with the registrar and served on the respondent
within 7 days of declaration of the result of the election.
Respondent, if intending to oppose must file notice of opposition within three days
service upon him or her, failing of which shall be barred.
Applicant may within 3 days of service, file and an answering affidavit.
Applicant is to file his heads of argument simultaneously with his or her answering
affidavit and serve a copy to respondent.

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In the event that the applicant does not intend to file answering affidavit, must file heads
of argument at least 3 days before hearing the matter.
The respondent is to file and serve the heads of argument within three days of being
served with the applicant’s heads or argument.
If a party is a self-actor, shall not be required to file heads of argument.
The registrar shall set down the matter for hearing within 14 days of the filing of the
application.

Appellate jurisdiction.

A constitutional case may be brought before the constitutional court through an appeal
from the lower court.
A party who is aggrieved by a constitutional decision of a lower court is entitled to
approach the constitutional court through an appeal. The initial procedure is to apply for
leave to appeal within 15 days of the decision of the subordinate court which must be
filed with the registrar and the other parties, who must be cited as respondents.
It is necessary to obtain a leave to appeal in all appeals to the constitutional court, except
in the circumstances specified in terms of rule 21 (1) and 31 (2).

The application must contain;

(i) A draft notice of appeal.
(ii) The decision against which the appeal is based and grounds on which such decision is
disputed.
(iii) A statement concisely and clearly stating the constitutional matter raised in the
decision.
(iv)Any supplementary information relevant to the proceedings and to be brought to the
attention of the court.

Respondents to file a notice of opposition within 10 days of service of application for

leave. The notice of opposition must;
(i) show the grounds, in detail on which the respondent opposes the appeal.
(ii) Must have supporting affidavits.
(iii) Any other supplementary information to be brought to the attention of the court.

Cross appeals

Sub rule 6 provides for the provisions of cross appeal. A respondent who intends to cross
appeal must within 10 days from service, file an application for leave to cross appeal.
Rules which apply to appeals shall apply mutatis mutandis.
If the respondent fails to file a notice of opposition, he or she shall be barred and the
applicant entitled to request the registrar to place the matter to before the judge in
chambers for directions.

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If the request is not made, the registrar is to put the matter before the chief justice for
directions after the expiry of 10 days.

Notice of appeal

It is provided for in terms of rule 33

An appeal shall be commenced by a notice of appeal in terms of this rule; the notice of
appeal shall contain.
(i) The date on which and the court by which the judgment appealed against was given
(ii) If leave was granted, the date of such grant
(iii) Whether whole or part of the judgment is being appealed against, and if its only
part, which part of the judgment is being appealed against.
(iv)The grounds of appeal in terms of rule 36
(v) The relief sought
(vi)The address of service of applicant.
The notice of appeal must be filed twice.
One with the registrar of the constitutional court and the other with the registrar or clerk
from the court whose judgment is being appealed against.

The time for noting an appeal is dependent on whether leave to appeal is needed.
1. If leave to appeal is not necessary, the notice must be filed within 15 days of the date
of judgment appealed against.
2. If leave is required, and has been granted, must be filed within 10 days from the date
the leave to appeal was granted.

Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15

(Ziyambi JCC)

The applicants sought leave to set down an appeal from the Supreme Court on an urgent
basis. It was argued that they had such a right of appeal, in view of the wording of s 167
(5) (b) as read with s 169 (1) of the Constitution. The applicants submitted that s 167 (5)
(b) granted a right of appeal in a case where the alleged violation, by the Supreme Court,
of the applicants’ constitutional right only became apparent after the judgment was
handed down. They argued that it was not necessary to have requested the Supreme Court
to refer the matter to the Constitutional Court in terms of s 175(4). The respondent argued
that an appeal invites a superior court to determine the correctness of the lower court’s
decision on issues which were placed before it. There were no constitutional issues
placed before the Supreme Court for determination, or determined by the Supreme Court.
There could, therefore, be no right of appeal since no decision was made by that court on
constitutional matters. The proper recourse available to the applicants was to bring an

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application in terms of s 85 of the Constitution if it was felt that a breach of their

fundamental rights had occurred.

HELD: the applicants had not established any right to approach the Constitutional Court
by way of appeal. Section 167(5) relates to rules of procedure regulating the manner of
approach to the Constitutional Court on appeal from lower courts. It does not confer a
right to appeal on a litigant who has no right of appeal. For this right, the litigant must
look elsewhere in the Constitution. Such a right may be read into s 175(3), which applies
where an order of constitutional invalidity of any law has been made by a court. Failing
that, a right of appeal could only arise where the Supreme Court makes a decision on a
constitutional matter.

Jurisdiction to hear referrals in terms of section 175.

Referral of a matter to the constitutional court(r 24)

Constitutional matters may arise in the proceedings in a lower court. Referrals of such
constitutional matters that arise during the proceedings in a lower court can be made in
two ways.

 The court or judicial officer may mero muto request the parties to refer the submissions
on the constitutional issue or question to be referred for determination

The referral must state the specific constitutional issue he or she considers should be
resolved by the court.

 The party may make an application to the presiding judicial officer for referral of the
constitutional dispute to the constitutional court for determination.

PARTIES TO PROCEEDINGS.

Legal capacity

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

a) Minors are sued in the name of guardian or in their own name assisted by the
guardian. Where there is no guardian a party must seek an order that a curator ad litem
be appointed. The same applies when the interests of the guardian conflicts with those of
the minor child.
b) Mentally incapacitated persons; any proceedings against them are instituted by
curator ad litem.

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c) People declared insolvent: represented by the trustee

d) Woman married in community of property: husband institutes the action
e) Prodigal: it’s a person who is financially irresponsible and is represented by a curator
bonis or ad litem.
f) Alien /enemies – cannot sue – it’s a person in a country in a declared state of war.
g) Fugitives cannot sue
h) MPs cannot be sued in terms of Privileges or Immunities Powers Act.
i) Diplomats: Privileges and Immunities Act only in cases of governmental nature
j) President: s98 of the Constitution in his personal capacity. In his official capacity he
can be sued with the leave or permission of the court in terms of R18 of HC rules.

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

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

HELD: Rule 18 is intended to afford the President and judges protection against
frivolous actions that may be brought against them. This application per se was neither
frivolous nor vexatious; it was of national significance. It must be heard on the merits
notwithstanding the provisions of r 18, a course permissible under r 4C, which allows the
court to direct authorize or condone a departure from any provision of the rules, where it
is satisfied that the departure is required in the interest of justice. In any event, s 4 of the
State Liabilities Act [Chapter 8:14] provides an absolute right to bring proceedings
against the President in his official capacity provided he is cited by his official capacity
and not by name. That is the sole restriction. Had the legislature intended that the
institution of any such action or process be preceded by the grant of leave from the High
Court or Supreme Court, it surely would have said so. Certainly, there is no justification
for reading such a requirement into the section. Nothing in r 18 of the High Court Rules
could be understood to override either s 4 of the State Liabilities Act, or any other
provision of the Constitution, which exhibits a contrary intention.

 locus standi

 A person must have an interest in the matter to institute proceedings. It has been
described as direct and substantial interest and real interest.

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

DEFINITION OF LOCUS STANDI

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The constitution for the third defendant, the Harare Municipal Workers’ Union, was
registered in 1962. One of its 11 listed objects was to regulate the relations between
members and their employers, and to protect and further the interests of members in
relation to their employers. Membership was open to employees of the Harare City
Council. The governing body of the Union was the second defendant, the Executive
Committee, members of which would be elected at the annual general meeting and would
serve for one year. They would be eligible for re-election. They could be removed from
office on the decision of a general meeting, as well as by resignation, suspension,
expulsion from the union or absenteeism. The first defendant was the chairman of the
executive committee. The first plaintiff was the vice-chairman and the second was
chairman of a sub-committee of the union.
The plaintiffs sought a declaratur that the executive committee’s term of office had
expired; that the seats on the committee were vacant; and that the first defendant had
ceased to be a member of the union, having been dismissed by the council. They sought a
consequential order directing the union to hold elections for the executive committee.
The defendants opposed the relief sought, arguing (1) that the plaintiffs, being mere
members of the union, had no locus standi; (2) that the plaintiffs had not exhausted their
domestic remedies and should not have approached the court; (3) that there had been an
elective general meeting in 2012; (4) that the first defendant was appealing against the
ruling of the Labor Court upholding the determination of an arbitrator that he had been
dismissed in 2010 and consequently the arbitrator’s ruling was suspended; (5) that the
union had a new constitution which opened up membership, not only to employees, but to
“any person” which wished to abide by the requirements of the constitution.

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

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(2) The general view is that a litigant should be discouraged from rushing to the courts
before he has exhausted such domestic procedures or remedies as may be available to his
situation in any given case. He is expected to obtain relief through the available domestic
channels unless there are good reasons for not doing so. However, the domestic remedies
must be able to provide effective redress to the complaint. Furthermore, the alleged
unlawfulness complained of must not be such as would have undermined the domestic
remedies themselves. The court will not insist on an applicant first exhausting domestic
remedies where they do not confer better and cheaper benefits. Here, the constitution of
the union had no provision dealing directly or indirectly with the plaintiffs’ grievances.
The first defendant had avoided or prevented the holding of any of the constitutional

Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2)
ZLR 48.

Facts

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

Whether the 3 dismissed teachers who sought to be involved in the proceedings could be
joined at that stage.

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

Sibanda & NPSL v Mugabe & Anor HH 102/94

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

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

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

Joinder of parties

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

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

Patel J

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

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

Zhou J

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The second respondent, the University of Zimbabwe, held a foreign currency account
with the applicant, a commercial bank. In 2007 the first respondent issued a directive
ordering the applicant, together with other authorized dealers to, inter alia, lodge with and
transfer to the first respondent all their corporate foreign currency accounts and non-
governmental organizations balances by close of business on 2 October 2007. In
compliance with that directive the applicant transferred to the first respondent the money
held by it in the second respondent’s account. In 2012 the second respondent issued
summons against the applicant for payment of the money which was held in its account.
Having entered appearance to defend the claim, the applicant applied in terms of r 93 of
the High Court Rules 1971 for the joinder of the first respondent as a third party. The
applicant contended that it was entitled to be indemnified by the first respondent for the
amount being claimed by the second respondent. It argued that the question or issue of its
liability to the second respondent was substantially the same question or issue to be
determined as between the applicant and the first and second respondents.

The first respondent objected in limine to its citation on the ground that it should have
been given notice of 60 days as required by s 6 of the State Liabilities Act [Chapter 8:14],
as read with s 63B of the Reserve Bank of Zimbabwe Act [Chapter 22:15]. Section 6(1)
of the State Liabilities Act requires such notice when a claim is instituted for money or
for the delivery or release of any goods. It was also argued from the bar that the claim
against the first respondent had prescribed. The applicant argued that this application was
not such a claim, but that in any event the court could condone the non-compliance with
the notice period.

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

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

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

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

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

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

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

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

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role, as communicator and facilitator, it shouldered some responsibility for poor

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

Citation of parties

It is essential that parties be properly cited. This is to enable the proper identification of
the parties to who will be affected by the legal effects flowing from the civil case.
 Natural persons are to be cited in accordance to their full names as they appear on the
national identity document or birth certificate.
 Companies to be cited in accordance with the name that appears on the incorporation
certificate.
 Partnership – by the name of the parties.
 Cooperatives by the name as it appear in the constitution.
 Judges are to be cited in their official capacity.
 The president in his official capacity.

Parties in application procedure

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

Parties in action procedure.

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

Action Procedure in the High Court

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

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Keavney and Anor v Msabuka Bus Services (pvt) ltd

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

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

The general rule is that every allegation of fact not specifically dealt with by the
defendant in his plea is taken to have been admitted together with the implied allegation
of fact which arises from that allegation.

Demand

There are two instances where a demand is exercised

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

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

In the case of Asharia v Patel & others 1991 (2) ZLR 276 (SC) Gubbay CJ as he then was
said
“The general applicable rule is that where time for performance has not been agreed upon
by the parties, performance is due immediately on conclusion of their contract or as soon
thereafter as is reasonably possible in the circumstances. But the debtor does not fall into
mora ipso facto if he fails to perform forthwith or within a reasonable time. He must
know that he has to perform. This form of mora, known as mora ex persona, only arises
if, after a demand has been made calling upon the debtor to perform by a specified date,
he is still in default. The demand, or interpellatio, may be made either judicially by
means of a summons or extra-judicially by means of a letter of demand or even orally;
and to be valid it must allow the debtor a reasonable opportunity to perform by

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stipulating a period for performance which is not unreasonable. If unreasonable, the

demand is ineffective.

Requirements for a demand

It is necessary if demand is needed to complete the cause of action. The form and content
of the demand.

(i) It should need not be in writing unless stipulated by statute or by agreement between
the parties.

(ii) It can be by the creditor himself or by someone representing the creditor i.e Legal
Practitioner.

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

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

(v) It is not necessary to threaten legal action

Summons

The action proceedings in the high court of Zimbabwe are instituted through the issuance
and service of the summons. Different legal effects flow with such issuance and service
of summons. These include;
 It stops of the running of prescription
 It freezes the rights of parties with in the matter until determination by the court.

General

What is a claim for a debt or liquidated demand?

This is a claim for either a specific amount of money or one that is capable of speedy and
prompt assessment, claim of a specific thing.

Case: Fred & Anor v Keelan 1951 SR 7

A claim for an order declaring property specially hypothecated in a mortgage bond to be

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

Mohr v Krier 1953 (3) SA 600

The plaintiff was claiming several things:

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

b. an order compelling the defendant to complete and deliver to the plaintiff a

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

c. an order compelling the defendant to complete and deliver to the plaintiff a stop order
addressed to Tobacco Auctions Ltd authorizing the plaintiff to claim 1000 pounds
from the proceeds of the sale of the tobacco for the 1952-53 season.

The issue was whether these claims were a debt or liquidated demand.

Held: on the first claim it was held to be a claim of a debt or liquidated demand because
it was a fixed amount of money, certain.

Held: On 2nd and 3rd claims it was said although claims for debt or liquidated demand
they were also claims for specific performance and failure to comply with these claims
will be punishable by contempt of court as no official could be substituted for the
defendant. For that reason, the claim should not have been made on the endorsed
summons.

SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2) SA 131.
The plaintiff applied for default judgment on an endorsed summons in which he claimed
(i) A statement of account duly supported by vouchers of all premiums received by the
defendant.

(ii) The rebate of such account (an assessment of item so as to come to a determination
of an amount owing).

(iii) Payment of money owing to the account.

(iv) Order directing defendant to disclose all forms of policies in his possession issued
by the plaintiff and delivered to the defendant.

Held: All of them were claims for a debt or liquidated demand except a claim of whatever
was found owing under the account because it was not fixed.

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

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

See International Hardwork Cooperation 1971 (1) SA 404

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

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

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

An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956 RN 148.

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

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

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

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

Atlas Assurance Co. Ltd v Goodman 1955 SR 328.

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

Morris v Stern, 1969 RLR 427.

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

Dube v Sengwayo HHC 110/91.

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

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

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

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

The claim was for $100 000 payment based on a document which had been signed by the
defendant in which she had admitted that she had been fiddling the books and stated as
follows on the amount owed “I would not know the exact amount that I would have taken
but Mr. Rumbold has said that if it is close on to 100 000 which could be about right”
The claim was held to be unliquidated because the amount owing was not ascertained but
merely estimated.
 The form to use in the summons is Form No. 2 but there is special summons used in
matrimonial proceedings i.e divorce, separation, Form 30A.

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

The Contents of the Summons

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

 The summons should give the defendant time upon which to enter appearance to
defendant (dies induciae) and its 10 days in HC Rule 17. It excludes holidays and
weekends (O1 R4 A).

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

Declaration

 This is a statement of the plaintiff’s claim setting out the nature, extent and grounds of
the cause of action and relief claimed (17 R109, 110).

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

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

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

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

Service of summons S20 (1) HC Act.

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

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

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

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

Wattle Co. (Pty) Ltd vs Inducon (Pvt) Ltd 1993 (2) ZLR 108 H
On the 8th of April of 1993 an order was granted by the HC compelling the defendant to
file and serve its discovery affidavit within 5 days of the service of the order. Failing
which the plaintiff would be allowed to apply to have the defense struck out and default
judgment granted. The order was served on the defendant’ legal practitioner by a Clerk
in the employ of P Plaintiff’s Legal Practitioners. He was in default and the plaintiff
applied for default judgment.

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

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There are special rules of service in process on proceedings against the state. S5 of State
Liabilities Act.

O5A R43 A – 43D

Mutyambizi v Goncalves & Anor HH-345-13

Dube J

In terms of r 39 (1) of the High Court Rules 1971, process in relation to a claim for an
order affecting the liberty of a person must be served by delivery of a copy thereof to that
person personally. An application to commit the respondent to prison for contempt of
court would be an instance of such an application. Imprisonment is a harsh form of
punishment and deprives a person of his liberty and is therefore a grave consequence the
respondent may have to endure. It is imperative, in contempt of court applications where
the remedy sought is likely to result in imprisonment that process is served personally.
The fact that there is a proviso in the order sought that enables the court to suspend the
imposition of a custodial sentence does not take away the requirement for personal
service. Service on the respondent’s legal practitioner is not sufficient.

Cleminson v Sher & another HC 1762/14

In case number HC 1508/14 the respondents issued summons against the applicant on 2
July, 2014 claiming arrear rentals and eviction as a result of breach of a lease agreement
entered into by the parties. The summons was served at the applicant’s domicilium
citandi ET executandi number 5 Luton Street, Belmont, Bulawayo on 4 July 2014 by
affixing it thereat on the door after unsuccessful diligent search. The dies induciae
expired on 18 July, 2014. On 17 July, 2014 the respondents’ legal practitioners, out of
courtesy, e-mailed the summons to applicant and also alerted applicant that they had
served the summons at his domicilium citandi on 4 July, 2014. The applicant did not
enter appearance to defend. On 31 July, 2014 the applicant filed a chamber application
for the upliftment of the automatic bar. The respondents opposed that application.

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

African Export-Import Bank v Rio Zim Ltd HH-464-13

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Chigumba J

The defendant averred further that the domicilium citandi et executandi specified in the
note made it clear that summons ought to have been served in England, and consequently,
service of the summons in Zimbabwe was improper and invalid at law
HELD: With regard to the service of process in Zimbabwe, there was nothing which
supported the contention that any and all legal process in regards to the promissory note
ought to be served in England at the agent’s address. In any event, the defendant accepted
service of the letter at its Harare address addressed to it by the plaintiff, in which the
plaintiff advised that the promissory note had been dishonored by non-payment. No effort
was made to disabuse the plaintiff of the notion that it had effectively placed defendant in
mora by delivery of the letter to that address. The defendant ought to have advised the
plaintiff to deliver the letter to its domicilium citandi e t executandi.

SUBSTITUTED SERVICE
Where service cannot be affected as stipulated by the rules a party can apply for
substituted service to a judge of the HC. It should state the facts on which the cause of
action is based, reason why service cannot be effected in any of the ways provided by the
rules; sufficient relevant facts indicating manner in which service will be effected.

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

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

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

PROCEDURE

Monarch steel (1991) (Pvt) Ltd v Four Way Haulage (Pty) ltd
The plaintiff company claimed damages for breach of contract. The defendant company
did not have property within the court’s jurisdiction capable of attachment. The defendant
company was registered in South Africa. The plaintiff made a chamber application for the
leave to effect service of summons and declaration outside the jurisdiction of the court in
Boksburg South Africa. Leave was granted, although the plaintiff did not submit a

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statement setting out the grounds on which it alleged that the court had jurisdiction to
entertain the matter. The defendant entered an appearance to defend but filed a special
plea which it averred that the court had no jurisdiction. The plaintiff averred that the court
had jurisdiction by virtue of issue of process.

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

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

Mathonsi J

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

HELD: While in terms of s 20 (3) of the High Court of Zimbabwe Act [Chapter 7:06], the
deputy sheriff’s return of service is prima facie evidence of the matters stated therein,
once the return has been challenged, the deputy sheriff must do more than just refer to the
return. He must assist the court to determine the truthfulness of the return of service. His
explanation was unhelpful as it merely repeated what was in the return of service. After
the return of service was impugned, the erstwhile assistant needed to do more than that.
For instance, more details of the location of the applicant’s address the appearance of the
reception where the summons was served and a description of the recipient would have
enhanced his credibility. Rescission would therefore be granted

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Service outside jurisdiction

There are two rules – R45 deals with service in SA, Namibia, Lesotho, Swaziland or
Botswana – serviced by sheriff or deputy sheriff of the country or province in which the
defendant is residing. If the person serving is appointed under the sheriff there should be
a certificate from the sheriff that the person was indeed appointed.

In other cases, follow R44 that is seeking leave of the court or judge seeking permission
to serve outside the country. The court would order the manner of service. In an
application make the following information:

Jotham Chirongoma v TDG Logistics

“There is no way a summons can be lawfully sued out against a peregrine defendant
without the leave of the court. Where such summons is issued, it is clearly invalid and of
no legal effect.”

i. facts in which cause of action is based

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

iii. proposed manner of service

iv. last known whereabouts of the person to be served. Give details on what enquiries you
have made to ascertain the whereabouts i.e gazetting.

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

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

Further procedure when action uncontested

Judgment by consent

 R 53 the Defendant can consent to judgment at any time after service of summons
except in

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

 The consent to judgment has to be in writing and signed by the defendant personally or
by his/her legal practitioner.

 If the consent is signed by the defendant him/herself then the defendant’s signature
must be verified by affidavit and the affidavit is to be by the person other than the
defendant himself.

It can be verified that the signature of the legal practitioner acting for the defendant.

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

Washaya v Washaya 1989 (2) ZLR 195

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

HELD: When the client applied for rescission of the judgment the court held that the
consent was not binding on the client because the provisions of R 54 were not followed.
The judgment was rescinded and the costs de bonis propis were awarded to Legal
Practitioner who had consented to judgment without the client’s authority.

If the consent is filed in a proper form, then judgment by consent will be met through the
chamber application R55. R56 gives the court authority to set aside a judgment given by
consent and its own good and cause shown.

Georgias & Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488
(S)
When considering an application for rescission of a judgment entered by consent, the
court should have regard to:
(1) the reasonableness of the explanation proffered by the applicant of the circumstances
in which the consent judgment was entered;
(2) the bona fides of the application;
(3) the bona fides of the defense on the merits of the case which prima facie carries some
prospect of success. A balance of probability need not be established.

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

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

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

Judgment in default and application for rescission of judgment

Defendant default at trial.

Mpehlani v Expert Panel Beaters & Spray Painters (Pvt) Ltd 1993 (2) ZLR 212 (SC)
The plaintiff claimed damages from the defendant for negligent repairs to the car. The
defendant entered appearance to defend and filed a plea in which he denied negligence
and defaulted at trial. Counsel for the plaintiff led evidence on quantum of damages and
not on liability despite the trial judge’s indication that this is necessary as per the case of
Dunlop v West supra). The trial court dismissed the claim and the plaintiff appealed to the
SC. The SC held that negligence was put in issue by the defendant’s plea and therefore
had to be proved. The appeal was dismissed.

Rescission of default judgment-(trial)

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

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

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

Default Judgment

If the claim is a debt or liquidated demand and there is no appearance to defend has been
entered the plaintiff can make a chamber application for the judgment (R 57).

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If the claim is not for a debt or liquidated demand then the procedure if there is default to
appearance, the procedure is set out in R58. The plaintiff must file and serve her
declaration that has not yet been done. If the defendant remains in default after service of
the declaration then the plaintiff may proceed to make a court application for default
judgment by setting the matter down for hearing in terms of R223 (1). The court will
then consider the matter except that where it’s a claim for damages the court will require
evidence as to the quantum of damages (R 60). The evidence to be quantified 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.

(i) if in Byo then the affidavit must be filed by 10.00 am on Wednesday immediately
preceding the Friday on which the case is set down for hearing.

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

The plaintiff issued summons against the defendant claiming 6000 pounds for damages
suffered as a result of the negligence of the defendant. The damages arose from the
damage to the plaintiff’s car as a result of a collision of the defendant’s car. The
summons and declaration were served by affixing copies to the principal door of the
defendant’s residence. There was no appearance to defend by the defendant so the
plaintiff set the matter down for judgment. The plaintiff made evidence regarding the
quantum of damages but gave no evidence in relation to the issue of liability (cause of
action). The question raised was whether it was proper for the court to grant judgment
without hearing any evidence substantiating the cause of action.

Held: The predecessor to current R60 does not suggest that the court should dispense
with the hearing of evidence on the cause of action. It would ordinarily be unwise for a
court to do so where the action is for damages arising out of a motor accident because of
the possible existence of complex issues of whether or not there was contributory
negligence.

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

Dunlop v West 1974 (2) SA 642

The plaintiff a minor sued assisted by father. Plaintiff was suing a defendant minor
assisted by father for damages of $60 000. The claim arose from injuries sustained in a
car accident. The plaintiff was a passenger in a car driven by the defendant. The car
veered off the road and collided with two trees. The plaintiff was reduced to a ‘human
cabbage’ seriously injured. The defendant entered appearance to defend and defaulted at

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trial. The issue was that the plaintiff led evidence on quantum and sought judgment
without addressing issues of liability.

Held: Under the rules as they were at that time the court had no discretion to dispense
with evidence as to liability (res ipsa loquitor – was it as a result of negligence). It was
held it was not because there was other evidence on what actually happened. There was a
young girl a passenger in the court who had not been called. It was held that the court
must hear evidence as to liability and the case was postponed to give required evidence.

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

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

ZEDTC v Ruvinga (1) HH-307-12

(Bere J)

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

HELD: In order to succeed in having an order made in default of appearance set aside the
applicant must show good and sufficient cause. The explanation tendered by the applicant
must negative any willful default on the part of the applicant. In the context of default
judgment, “willful” connotes deliberateness, in the sense that the applicant must have had
full knowledge of the set down date and of the risks attendant upon default, and freely
took the decision to refrain from appearing, whatever the motivation of that decision may

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have been. There is nothing like an automatic postponement when a matter is set down
before a judge. A party desiring a postponement must advance cogent reasons for a
postponement and seek the court’s indulgence in that regard. Only when the court agrees
with the submissions of a party seeking postponement would the court accede to such an
application. It was certainly not enough for the applicant’s legal practitioner to decide not
to attend court on a date that he had agreed to and to delegate his junior to handle the
desired postponement.

Rescission for default judgment

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

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

said that;
There are three separate ways in which a judgment in default of one party may be set
aside. This can be done in terms of r 63 of the High Court Rules, or r 449 (1) (a), or in
terms of the common law. An applicant is at liberty to elect to use whichever one of those
three vehicles best suits the circumstances of the case. Whichever one he chooses; the
court will have to consider the question of length of time that will have elapsed since the
judgment sought to be rescinded was granted. To qualify for relief under r 63, a litigant
must show that:
• Judgment was given in the absence of the applicant under these rules or any other law;
• The application for rescission was filed and set down for hearing within one calendar
month of the date when the applicant acquired knowledge of the judgment;
• Condonation of late filing has been sought and obtained where applicant fails to apply
for rescission within one month of the date of knowledge of the judgment.
• There is “good and sufficient cause” for the granting of the order. “Good and sufficient
cause” has been construed to mean that the applicant must (a) give a reasonable and
acceptable explanation for his default; (b) prove that the application for rescission is bona
fide and not made with the intention of merely delaying plaintiff's claim; and (c) show
that he has a bona fide defense to the plaintiff's claim.
To qualify for relief under r 449 (1) (a) a litigant must show that:
• the judgment was erroneously sought or erroneously granted.
• the judgment was granted in the absence of the applicant or one of the parties, and
• the applicant's rights or interests were affected by the judgment. In order to qualify for
relief in terms of the High Court’s common law power to rescind its own judgments a
litigant must show that.
• the court’ discretion that it is being asked to exercise is broader than the requirements of
both rules 449 and 63, and
• whether having regard to all the circumstances of the case, including the applicant’s
explanation for the default, it is a proper case for the grant of the indulgence.
The question is, what sort of error will suffice to bring an applicant squarely within the
ambit of r 449(1) (a)? Is it an error of fact, an error of law, or both? An “error” in
common and ordinary parlance, is defined as a mistake, fault, blunder, slip, slip-up,

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inaccuracy or miscalculation. The law is settled on the issue of if or when and whether
the court ought to grant rescission of its own judgments in terms of rule 449. A party
against whom default judgment has been granted is entitled to place before the correcting,
varying or rescinding court facts which had not been before the court granting the default
judgment. It is not necessary for a party seeking relief under r 449 to show "good cause".
If a court holds that the default judgment was erroneously granted, it may be corrected,
rescinded or varied without further enquiry. Rule 449 is one of the exceptions to the
general principle that once a court has pronounced a final judgment or order it is functus
officio and has itself no authority to correct, alter or supplement it. Mistakes of fact are
not precluded, although the mistakes must not be trivial or petty clerical ones.

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

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

Applicant sought rescission of a default judgment which was opposed by the respondent.
The applicant filed an answering affidavit to the respondent opposing affidavit on the
afternoon preceding the date which the matter was to be heard. The respondent’s legal
practitioner objected to the late filing of the affidavit. The respondent subsequently
withdrew the opposition for the late submission to the late filing and the explanation for
the delay was that the applicant’s legal practitioner had renounced agency on the 7th of
July 1993 when the matter was to be heard on 14th July 1993 thus giving him sufficient
time to prepare himself to conduct the case on his own. The court strongly censored the
conduct of the LP and the mater resume the former LP came back. On the resumed
hearing mero motu (own initiative) raised an issue on whether the application should

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have been made under R 449 (1) instead of R 63 which is the rule on rescission of default
judgment. The reason for the subjection is that there was an appearance to defend by the
applicant which had been duly signed by the registrar but had not been duly served by the
plaintiff.

Mubvimbi v Maringa and anor 1993 (2) ZLR 24

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

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

(Mathonsi J)

The applicants sought rescission of a default judgment obtained against them. After issue
of the summons, they had signed an acknowledgment of debt in respect of the full
amount claimed by the respondent and undertook to pay the debt at an agreed rate per
month. In spite of this undertaking they did not pay the monthly sums agreed; they paid
only one amount, which was considerably less than the agreed monthly rate. The grounds
for rescission were that they were not in willful default and had a defense to the claim.

Held: Nowhere in the world can it be a defense to say that a debtor should be allowed to
pay in installments. To say that the applicants negotiated a settlement after receipt of the
summons did not even begin to explain the default. It was as unreasonable an explanation
as it was dishonest. To say that the applicants should be allowed to pay the debt they
acknowledged as owing in monthly installments did not come anywhere near presenting a
bona fide defense. It put to question the bona fides of the entire application for rescission
of judgment. This kind of litigation must be discouraged at all costs and legal
practitioners who indulge in such egregious departure from acceptable behavior risk the
sanction of costs de bonis propriis being visited upon them.

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

(Ndou J)

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

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Offers and tenders in settlement – (O 22)

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

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

Once a written offer is made you must given notice of the offer to the party whom you
are giving the offer. R146(1) – the notice must state whether the offer is being made
without prejudice and it must also state whether the offer is being made in respect of both
the claim and costs or being made in respect of the claim only. Also state whether the
offer is accompanied by an offer to pay all or part of the costs and therefore any
conditions subject to which the costs will be paid. The same rule also applies in the case
of a tender.
A tender is a tender in performance of a specific act {R145 (1)}. The performance can
either be in whole or in part R145 (1). According to R145 (3) it can also be ‘without
prejudice’ offer. The details required are the same as in the offer i.e signed by the parties’
LP {R145 (4)}.

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

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

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

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

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Summary Judgment

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

Charisma Pvt Ltd v Stutchbury & Anor 1973 (1) RLR 277.
There was an application for summary judgment and the Plaintiff’s claim was for
accelerated performance by reason of an allegedly implied term of the contract of the
defendant partially performed obligations as the purchaser under a written deed of sale o f
a general dealer investment business as a going concern. The defendant’s defense that he
had cancelled the contract and had intended to counter-claim for cancellation of contract
and restitution. There was extensive correspondence between the parties attorney in
which the defendant’s defense on counter claim were provided and these were that a
resolutive condition of the agreement was not timeously fulfilled and also that the
plaintiff had failed to deliver the subject of contract of sale (ii) The defendant alleged that
have been induced to enter into contract by material and fraudulent misrepresentation.
The defendant was denying the alleged implied terms on which the plaintiff was relying
on performance. There was application for summary judgment by plaintiff.

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

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

Procedure (O 10)

The application for summary judgment is a court application and can be made at any time
before a pre-trial conference is held. The court application will be supported by affidavit
made by the plaintiff or any other person who can swear positively to the facts in the
affidavit, the deponent of the affidavit will do the following; verify the cause of action
and the amount claimed if any; state that there is no bona fide defense to the action {R 64
(2)}.

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

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Once an application has been made the defendant has several options.
i. judgment which may be given against him/her in the action {R66 (3) (a)} whatever
security given must satisfy the registrar that it is adequate

ii. to satisfy the court by affidavit or with the leave of court by oral evidence that he has
a good prima facie defense R66 (1) (b).

An affidavit can also be by defendant or anyone else who can swear positive to the fact –
with personal knowledge of the facts.

What is meant by good prima facie defense?

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

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

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

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

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

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

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Lincoln Shop (Pvt) Ltd v Axis International and Wonder Chizema HH 54/94
An application for summary judgment and claim based on two lease agreements and
plaintiff was seeking arrear rentals totaling $19 288. The second defendant had signed
the leases on behalf of the first defendant and he also bound himself as co-principal
debtor. The plaintiff attached the following documents in support of its application for
summary judgment;
(i) copy of the lease agreement
(ii) an acknowledgement of debt in respect of part of the arrear rentals
(iii) a letter to the plaintiff by the first defendant managing the premises in which he
indicated willingness to vacate the premises and pay the arrears and sign an
acknowledgement of debt in respect of the arrears. The defendant’s defense was that
the agreement of lease attached was not the one he signed and that he had no
authority to bind the company.

Held: The defendant had not denied liability but was merely raising technicalities (were
missing pages of the lease agreement). The defendant had no bona fide defense and
summary judgment was granted.

Rex v Rhodian Investment Trust (Pvt) 1957 R & N 723 1957 (4) SA 631.
The claim was in the plaintiff’ s summons represented an alleged balance of a loan made
by her in July 1955 to a company named Somerset Holdings (Private) Limited for
repayment of which loan defendant company had bound itself as surety and co-principal
debtor. On the 7th August, when serving on the defendant company’s attorneys notice of
an application, for a minor amendment of the summons, plaintiff’s attorneys, in writing,
requested defendant’s attorneys to intimate before 4 p.m. the following day failing such
intimation, the letter stated that application for summary judgment would be made. With
the intimation not being made, the plaintiff gave notice of intention to apply for summary
judgment.

Held In summary proceedings, the merits of a defense are not fully investigated or
debated. The plaintiff need not establish his claim-all he has to aver is a belief that there
is no defense and as pointed out by Herbstein, J, in Wright v McGuinness 1956 (3) SA.
184 (C) at p187, it is not intended that plaintiff should go into details. The defendant in
return has not to establish his defense on the probabilities, all he need allege is facts
disclosing a defense and sufficient if pleaded and accepted on trial to establish a defense.

Good prima facie defense means that the defendant must allege fact which if he can
succeed in establishing them at the trial would entitle him to succeed in his defense.

Wilson v Hoffman & Anor 1974 (1) SA 44

The claim was for goods sold and delivered. The defendant’s defense was that some of
the goods were defective and had to be repaired at an estimated cost of $1 613.30. There
was an argument by plaintiff’s counsel that this estimation was not an averment of fact
and therefore do not entitle the defendant to a defense.

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Held: The phraseology urged by the defendant should not be placed under a microscope.
A mere want of particularity in making an averment that discloses the defense sought to
be relied on is an ordinarily fatal to the defendant’s case provided that the facts are there
good if proved to be a good defense.

Held: The defense had raised a legitimate issue for trial. The fact that the defendant’s
counter-claim was less than the plaintiff’s claim would not make it unacceptable to the
defense to summary judgment.

Rheeder v Spence 1978 (1) SA 1041

The plaintiff claimed $4500 being money lend and advanced to the defendant. The
defendant’s defense was that at the time that he loans were made he and the plaintiff were
having an affair and living together as husband and wife. It was agreed that he would
repay when “he could afford and also when it was convenient to do so. The plaintiff’s
alleged that the condition of repayment was vague and unenforceable and therefore the
defendant had no good prima facie defense had no a good prima facie defense.

Held: The defendant had raised a triable issue that even though the condition was vague
it could be established by evidence at trial.

Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH-

(Makarau JP)

The test to be applied in summary judgment applications is clear and settled. The onus
resting on a defendant resisting summary judgment has been described as amongst the
lightest that the rules of procedure cast on litigants. He does not have to prove his
defense. He must merely allege facts which, if he can succeed in establishing them at the
trial, would entitle him to succeed in his defense. The defense so set up must, however,
be plausible and bona fide. Obviously implied in this test, but often overlooked by legal
practitioners, is that the defendant must raise a defense. The facts alleged must lead to
and establish a defense that meets the claim squarely. If the facts that he alleges,
fascinating as they may be and which he may very well be able to prove at the trial of the
matter, do not amount to a defense at law, the defendant would not have discharged the
onus on him and summary judgment must be granted. To defend a claim arising out of a
contract of sale, the purchaser must attack either the existence of the agreement itself or
the fact that the goods sold were not delivered to him. If other defenses are raised, they
must be raised explicitly. It is not the function of the court to put words into the
defendant’s mouth and thereby establish a possible defense on his behalf when the
defendant fails to do so in his opposing affidavit.

Oak Holdings (Pvt) Ltd v Newman Chiadzwa SC 50/86.

The plaintiff sued the defendant for payment of $92 950.00 under an i.o.u note signed on
behalf of the defendant by its managing director. The plaintiff applied for summary
judgment. The defendant’s defense was that the i.o.u not signed on behalf of the
defendant by its managing director.

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The plaintiff applied for summary judgment. The defendant’s defense was the i.o.u not a
question was to the knowledge of both parties and fictitious document. He said it had
been created for the purpose which was later abandoned. She gave full details of the
alleged purpose. The defendant went on to say that when the purpose was abandoned it
was agreed that the i.o.u note should be destroyed and that the plaintiff had actually
destroyed the document in the presence of the defendant which he fraudulently presented
as i.o.u note. The judge in the HC was of the view that the defense raised by the
defendant was so improbable in the facts that it could not be good prima facie defense.
Summary judgment was granted and appealed to the SC. The SC disagreed with the
approach of the HC on the question of defense and stated that applications for summary
judgment are not decided on a balance of probabilities however strong. Unless the court
is satisfied that the plaintiff’s case is clearly unanswerable it is not entitled to grant
summary judgment. The defense was disclosed in the affidavit “replete with details” (full
of details) and “by no means so farfetched that it can be dismissed out of hand as an
obvious fabrication.” Appeal was allowed with costs.

R 67 limits the evidence that can be presented at the hearing of the application of
summary judgment. The plaintiff is restricted to the affidavit which would have been
made in support of the application and neither party may cross examine any party who
gives evidence wither orally or by affidavit. However there are exceptions in a proviso to
R67. These are:

(a) the court may permit evidence to be led in respect of any reduction to the plaintiff’s
claim R67 (a).

(b) The court may ask questions of any person who gives oral evidence for the purpose
of elucidating or clarifying what the defense is or for the purpose of determining
whether that the time the application was instituted the plaintiff was or should have
been aware of the defense R67 (b).

(c) The court may also permit the plaintiff to supplement his affidavit to deal with either
or both of two specific issues.

(d) any matter raised by the defendant which the plaintiff could not reasonably be
expected to have dealt with in his first affidavit – where plaintiff was taken by
surprise.

Jena v Nechipote 1986 (1) ZLR 29(SC)

Gubbay JA, remarked as follows:

“All that a defendant has to establish in order to succeed in having an application for
summary judgment dismissed is that ‘there is a mere possibility of his successes; ‘he has
a plausible case’; ‘there is a friable issue’; or, ‘there is a reasonable possibility that an
injustice may be done if summary judgment is granted”.

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Shingadia v Shingadia, 1966 RLR 285

The plaintiff claimed summary judgment on an agreement which required him and
another to act jointly in claiming relief. Plaintiff had not so joined this party. Defendant
opposed the claim on the ground that the agreement precluded plaintiff from suing alone.

The court held as follows:

“Accordingly, summary judgment should not be granted when any real difficulty as to
matter of law arises, but it has been held that, however difficult the point of law is
satisfied that it is really unarguable, judgment will be granted”

The application was dismissed.

CABS v Magodo (HC 10619/13)

The applicant brought an action for summary judgment in terms of rule 64. It was their
argument that the defendant has no plausible defense.

HELD: A court will grant summary judgment only in a case where the applicant has
shown that the respondent has no arguable case or in other words, a genuine dispute
regarding any material fact and that it is entitled to judgment at law. Where the evidence
available does not support the absence of a genuine dispute regarding any material issues,
summary judgment may be declined.

Kingstons Ltd v D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (5)
“In summary judgment proceedings, not every defense raised by a defendant will succeed
in defeating a plaintiff’s claim. What the defendant must do is to raise a bona fide
defense, or a plausible case, with sufficient clarity and completeness to enable the court
to determine whether the affidavit discloses a bona fide defense. The defendant must
allege facts, which if established, would enable him to succeed. If the defense is averred
in a manner which appears in all circumstances needlessly bald, vague or sketchy that
will constitute material for the court to consider in relation to the requirement of bona
fides. The defendant must take the court into his confidence and provide sufficient
information to enable the court to assess his defense. He must not content himself with
vague generalities and conclusory allegations not substantiated by solid facts. … The
proviso to R 67 of the High Court Rules 1971 is therefore to be restrictively interpreted.”
The restrictive interpretation is meant to prevent a plaintiff in summary proceedings to
dispense with the provisions of the main rule itself which bars him from adducing
evidence except through his original affidavit. The real purpose of the proviso is not to
enable a plaintiff to proffer a reply to respondent’s affidavit otherwise, summary
judgment proceedings would degenerate into a court application.

Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H)

MAKONI J stated that:

“The law of summary judgment is settled in our jurisdiction. It is a drastic remedy in

which the plaintiff, whose belief is that the defense is not bona fide and entered solely for

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dilatory purposes, should be granted immediate relief without the expense and delay of a
trial. It has far reaching consequences, as it effectively denies the defendant the benefits
of the fundamental principle of the audi alteram partem rule. It can only be granted to
the plaintiff when all proposed defenses to the claim are clearly unarguable, both in fact
and in law. The defendant does not have to establish his defense on the probabilities. All
he needs to do is to allege facts, which disclose a defense. These facts, if pleaded and
accepted at the trial, must be sufficient to establish a defense.”

Nedlaw Investments & Trust Corp Ltd v Zimbabwe Development Bank S-5-00.
What the authorities state quite simply is that relief by way of summary judgment is of an
unusual kind that is meant to grant a plaintiff with an apparent clear right a speedy means
of relief against a delaying or recalcitrant debtor. The court therefore has discretion as to
whether or not it will enter summary judgment. That is a stringent power whose exercise
must be watched, strictly in order to see that the plaintiff has brought himself to within
the scope of the provisions of the rule. However, this does not mean that every
unsubstantial technicality raised by the defendant must be given effect. Rather, the
proper approach is that care must be taken to see that the plaintiff has, in accordance with
the terms of the rule made out a cause of action to which the defendant can have no
possible defense.

See Lincoln Shop (Pvt) Ltd v Axis International HH 54/94

MWP Enterprises (Pvt) Ltd v V.A.M Machado (Pvt) Ltd HH 139/93

The plaintiffs were allowed to file supplementary affidavit.

R 70 the court may give leave to defend either unconditionally or subject to conditions i.e
the giving of security.
R 73 deals with a situation where there are co-dependants and the court can make a
decision that one defendant is entitled to pay and the other not. In that case the court will
give leave to defend to the defendant entitled to defend and then enter summary
judgment.

The defendant must show that they have a good prima facie defense on part of the claim
and the court could give leave to defend on that part of the claim.

R 72 – the costs of application of summary judgment if unsuccessful – the court gives the
defendant room to defend and decide who will pay the costs for summary judgment.

The general order is costs in the cause means that the decision on who is to pay is
deferred until the matter is finalized. Whoever succeeds will recover the costs of
proceedings to the application for summary judgment.

The court may reserve the question of costs. The decision as to who is to pay for the
costs of unsuccessful summary. Judgment shall be deferred and reserved by the court
usually where the case is complex or not clear.

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In terms of R72 (b) if in the opinion of the court the plaintiff knew that the defendant
relied on a contention which would entitle him to unconditional leave to defend, the court
will order the plaintiff to pay the defendant’s costs on a LP and client costs. (Higher scale
to penalize somebody) and also order that the action be stayed until the plaintiff has paid
the costs. Interpretation of the provision see:

The court said that the rule contemplates that in appropriate cases the court may order a
stay of action until costs are paid.

Held: there was a no reason to find that the plaintiff attempted to harass the defendant or
had been guilty of opprobrious (blameworthy conducts) conducts other than the plaintiff
had sought to gain an advantage over the defendant by compelling him to make sworn
disclosures of his defense.

Held: the plaintiff had merely taken an over-songuire (over optimistic) approach.
Application dismissed with cost on party to party scale.

Plaintiff to pay costs on a party to party scale. R72 (b) – applied where the plaintiff knew
that the defendant was relying on over-songuire view of a case.

Rheeder v Spencer (supra)

Dismissal of action

It is obviously the reverse of summary judgment. In that case it is the defendant who
alleges that the plaintiff’s claim is of no substance and should be dismissed in a summary
manner. (O11).

The defendant can apply for dismissal of plaintiff’s action on the ground that it is
frivolous or vexatious R75 (1). The application is a court made by a defendant or by a
person who can swear positive to the statement stating that he believes that the claim is
frivolous or vexatious and stating out reasons for his belief.

R75 (3) the deponent of the affidavit may attach to his affidavit documents verifying his
belief that his action is frivolous or vexatious. Thereafter the procedure is the same as for
court applications as an order 32 of the HC Rules.

What is meant by frivolous or vexatious

Rawden v Edwards 1968 (2) RLR 212

The procedure was intended to apply actions which were manifestly groundless or
improbable and no decision on the probabilities of the case should be given.

Wood No v Edwards 1968 (2) RLR 212

The plaintiff sued the defendant for wages which he alleged were due to him by the
defendant. The defendant was the trustee of the plaintiff’s insolvent state. The defendant

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had employed the plaintiff as a manager of the insolvent estate at a salary of £124/month.
They were shortfalls in the payments made to the defendant totaling £844. The defendant
admitted the claim but sought to set it off by claims due to him by the plaintiff for monies
received and not surrendered to the estate and also tax costs for previous proceedings
instituted by the defendant against the plaintiff which were unsuccessful. The defendant
admitted receiving the money but denied submitting them to the estate. He also admitted
that he owed the tax costs but argued that it was inequitable to set them off for earlier
claim for wages. The defendant applied for dismissal of plaintiff’s action as being
frivolous or vexatious.

Held: The same principles apply as in summary judgment. The plaintiff had no possibility
of succeeding in is claim because the trustee who was the defendant was entitled to set
off. The plaintiff’s claim was dismissed as being vexatious and the judgment of
absolution from the instance was granted. However, the defendant was not awarded his
costs because the court said that he was partly to blame for the misunderstandings leading
to the litigation.

Wright v Banda HH 30/94

The defendant sought dismissal of the plaintiff’s claim for defamation on the ground that
it was frivolous or vexatious. The case involves a report which was prepared by the
defendant and of which the plaintiff claimed was defamatory of him and had resulted in
the plaintiff being fired. The defendant was raising a defense of qualified privilege. It
was held that the purpose of the application for dismissal of plaintiff’s claim as frivolous
or vexatious is to provide the defendant an opportunity of terminating the process of
litigation without going through the rigors and costs of trial in a situation where the
plaintiff has no reasonable prospects of success. Pg1.

In order to resist the application for dismissal the plaintiff needs to show that he has
raised triable issues and that his case has a possibility of success. He does not have to
demonstrate a certainty or even a likelihood of success at a future trial but only that his
case is not hopeless. Pg 6

R75 (1) the defendant may make the application after he has filed his plea.

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Powers of the Court

The court will dismiss the application by the defendant unless it is satisfied that the action
is frivolous or vexatious. When the court dismisses the application then the action
proceeds as if no application for dismissal has been made {R79 (1)}.

This power applies whether the plaintiff has given evidence or not even if the plaintiff
does not respond to defendant’s application.

If the court is satisfied that the claim is frivolous or vexatious it may dismiss the action
and enter judgment of absolution from the instance with costs. The use of the work may
indicate discretion.

Where the court is of the opinion that the defendant has no grounds for alleging that the
action was frivolous or vexatious it may order that the defendant pay the plaintiff’s costs
of a legal practitioner and clients scale {R79 (3)}. If there is more than one defendant and
the court is of the view that the action is frivolous or vexatious against one defendant and
not the other, the court may order that the action be dismissed and judgment of absolution
from the instance entered in respect of the defendant against whom the action is frivolous
or vexatious but the plaintiff would be at liberty to proceed with the action against the
other defendant or defendants{R79 (4)}.

Amendment of Pleadings (O 20)

In terms of R 132 pleadings may be amended with the consent of all parties or if they fail
to have consent should be an application for amendment. The application can be made to
the court or to a judge at any stage during the proceedings including at the trial.

A plaintiff can amend the pleadings to include a new cause of action which has arisen
after the issue of summons {R134 (1)}. If the opinion of the court or judge such
amendment may change the action substantially then the amendment would be refused
and the plaintiff would have to institute a separate action.

Where the court has granted an amendment, which introduces a new cause of action the
court shall fix the time for the defendant entrance of appearance to defend and for the
filing of all subsequent pleadings {R134 (2)}.

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

When dealing with an opposed application to amend the pleadings the court has a very
wide discretion as emphasized in Shill v Milner 1937 AD 101 at 105.

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“The object of pleading is to define the issues, and parties will be kept strictly to their
pleadings where any departure would cause any prejudice or prevent inquiry. But within
those limits the court has wide discretion. For pleadings are made for the court and not
the court for pleadings.

(a) Whether the amendment in respect of its scope or the time at which it is applied for is
likely to prejudice the opposite party or parties. If there is prejudice the court will look at
whether the prejudice can be cured by an appropriate order as to the postponement and or
costs.

Lamb v Beazley NO 1988 (1) ZLR 77

Before trial the plaintiff applied for leave to withdraw his declaration and further
particulars thereto and substitute a new declaration. The defendant opposed the
application. The plaintiff’s original claim was for an order directing the defendant to
render or account of the sale of flu cured tobacco belonging to an insolvent and costs of
suit. The plaintiff was claiming to have been the owner of half of the tobacco crop that
was sold. The defendant requested the particulars of the alleged ownership. The plaintiff
replied that he has paid the insolvent $28 000 for half the crop which he gave as
equivalent to 50 000 kg. The agreement was reduced to writing but not signed. The
plaintiff had supplied a copy of the unsigned agreement as part of the further particulars.
The defendant’s defense was that the agreement between the plaintiff and the insolvent
was illegal in that it contravenes section 44(1) of section 36(1) of the Tobacco Marketing
and Levy Act of 1977. The plaintiff amendment sought to allege that the tobacco was not
cured but was either still growing on the farm or had been reaped but not cured. The
plaintiff also sought to withdraw an unsigned written agreement. The plaintiff proposed
amendment would have the effect of removing the illegality of the transaction between
him and the insolvent. There was no explanation as to why the original declaration had
been filed.

Held: Generally, an application to amend a pleading will be allowed unless it is malafide

or there is incurable prejudice. However, the explanation must be made timeously and an
explanation must be given as to why the allegation was not made when the pleading was
originally drafted.

Held: Amendment sought by the plaintiff would introduce a new cause of action which
will call for a fresh plea from the defendant.

Held: The proposed amendments were designed to destroy one of the defenses raised by
the defendant and was therefore prejudicial to the defendant.
The application to amend was dismissed with costs.

DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92.

‘This court has the greatest latitude in granting amendments, and it is very necessary that
it should have. The object of the court is to do justice between the parties. It is not a
game we are playing, in which, if some mistake is made, the forfeit is claimed. We are
here for the purpose of seeing that we have a true account of what actually took place,

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and we are not going to give a decision upon what we know to be wrong facts. It is
presumed that when a defendant pleads to a declaration he knows what he is doing, and
that, when there is a certain allegation in the declaration, he knows that he ought to deny
it, and that, if he does not do so, he is taken to admit it. But we all know, at the same
time, that mistakes are made in pleadings, and it would be a very grave injustice, if for a
slip of the pen, or error of judgment, or the misreading of a paragraph in pleading by
counsel, litigants were to be mulcted in heavy costs. That would be a gross scandal.
Therefore, the court will not look to technicalities, but will see what the real position is
between the parties.’

In the case of Lourenco v Raja Dry Cleaners and Steam laundry (Pvt) Ltd 1984 (2) ZLR
15 1(SC) the Supreme Court remarked that

“The main aim and object in allowing an amendment to pleadings is to do justice to the
parties by deciding the real issues between them”.

In UDC Ltd v Shamva Gora (Pvt) Ltd 2000(2) ZLR 210H at 216, CHINHENGO J
remarked: ‘ The approach of our courts has been to allow amendments to pleadings quite
liberally in order to avoid an exercise that may lead to a wrong decision and also to
ensure that the real issue between the parties may be fairly tried.”

The respondent sued the applicant for $172 018.82, alleging that sum to be an
overpayment in respect of money owed by it to the applicant in terms of a loan agreement
entered into on 5 December 1991, a copy of which was attached to the particulars of
claim. The respondent alleged that the overpayment arose as a result of it having paid
some money in respect of other accounts it maintained with the applicant and from the
money so paid the applicant had wrongfully appropriated the sum of $448 533.75
towards a different account. As a result of such wrongful appropriation, the applicant was
overpaid by the sum of $172 018.82. The respondent’s claim was, in the alternative,
based on the allegation that it had paid the sum of $172 018.82 in the mistaken, but bona
fide, excusable or reasonable belief that the sum was due to the applicant. In the further
alternative, the respondent based its claim on unjust enrichment.

The court may at any stage allow either party to amend his pleading. The court has to
exercise its discretion judicially. The approach of our courts is to allow amendments quite
liberally. This liberality is only affected where the amendment would cause considerable
inconvenience to the court or prejudice to a party, or where there is no prospect of the
point raised in the amendment succeeding or where the matters in the amendment are
vague and embarrassing. There will be no prejudice if the parties can be placed in the
same position as they were when the pleading was originally filed. If the pleading is clear
and concise, the other party must deal with it as it is. If the other party suggests that the
facts stated are false or cannot be proved, its remedy is to show this at trial.

Hwange Colliery Gasification Company versus Hwange Colliery Company Limited HH

477/15

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“It is important at this stage for due consideration to be given to purposes of pleadings. It
is settled by definition that pleadings should be concise and to the point. The pleadings
must inform the parties of the points and issues between to enable each to know in
advance what case they are faced with. By nature, long winding and argumentative
pleadings are not only failing to comply with the rules of the court but defeat the whole
purpose of pleadings. Pleadings must be clear and to the point. They need only identify
the branch of the law under which the claim or defense to it is made and should not
contain evidence.”

Chifamba v Mutasa and Ors HH 16/08

Makarau J

“the purpose of pleadings is not only to inform the other party in concise terms of precise
nature of the claim they have to meet but pleading also serve to identify the branch of law
under which the claim has been brought. Different branches of the law require different
matters to be specifically pleaded in the claim to be sustainable under that action.”

Trans African Insurance Co v Maluleka 1956 (2) SA 273 AD

The plaintiff sued for herself and on behalf of her 5 minor children for loss of support as
a result of the death of her husband in a collision involving a vehicle insured by the
defendant. The summons did no set out that the defendant was being sued as insurer but
the plaintiff had set out his details in a petition to use i.f.p. (informa pauperis) which
have been served on the defendant. The defendant sought to have the summons struck out
as not in compliance with the rules which would make it impossible for plaintiff to
resuscitate the claim due to prescription. The plaintiff sought to amend the summons.
The defendant contented that the amendment should not be allowed to defeat the defense
of prescription. He cited some English cases on the point. He alleged that the plaintiff
was now creating a new cause of action.

Held: Assuming that the SA practice was the same as the English one no new cause of
action was being introduced by the amendment. The defendant fully aware of the cause
of action from the petition to sue i.f.p. The appeal was dismissed with costs.

If an amendment of a pleading amounts to withdrawal of an admission the court will

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

DD Transport (Pvt) ltd v Abbort 1988 (2) ZLR 92 SV

The plaintiff sued the defendant for payment of $7 650 being the damages suffered
through the negligence of the defendant’s employees when transporting his boat trailer
form Harare to Bulawayo. The plaintiff alleged that the contract had been concluded with
one King who represented the defendant. In his plea the defendant denied that King had
authority to conclude the contract. In his replication the plaintiff alleged that King held
himself out as having authority to conclude the contract. The defendant in his rejoinder
denied the entire transaction between King and the plaintiff and put the plaintiff to the

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proof hereof. The plaintiff LP protested that this amounted to withdrawal of an admission
and applied to have the offending paragraph of the rejoinder struck out. The defendant
applied to amend his plea by withdrawing the admission. An affidavit from the LP who
drafted the plea and rejoinder stated that he (LP) had no authority to make the admission
and had not appreciated the fact that the relevant paragraph could be construed as an
admission. The plaintiff filed a replying affidavit in which he indicated with supporting
copies of correspondence between the parties that the defendant never had denied the
transaction between plaintiff and King and the only issue being raised was that authority
of King who represent the defendant. The defendant did not respond to the plaintiff’s
affidavit. The application to strike out was granted and the defendant’s application to
amend his plea was dismissed. The defendant appealed to the SC and the SC said “the
court would not grant withdrawal of an admission without a reasonable explanation of
how it came to be made and why it is sought to resile from it” pg 98. “in addition, the
application to amend must not cause incurable prejudice and must not be malafide.”

Held: Although the court a quo was wrong to disbelieve the affidavit of the legal
practitioner the defendant has still not contradicted the evidence that it had admitted the
transaction between the plaintiff and King. Therefore, the application to amend the plea
was not bona fide. Appeal was dismissed with costs

Uncontested divorce order

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

Where special summons Form 30 A 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) The notice of trial if there is no response to notice to plead. This is the notice that
you are setting the matter down for hearing. The notice will contain the actual date
which the matter is to be heard. The notice must be served personally on the
defendant. Apply for substituted service if you can’t do so.

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

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

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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. In order for the 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 ancillary issues i.e maintenance, property
sharing. The consent paper must be filed together with the papers for the hearing of
the divorce and it will be incorporated into the court order.

N.B/ one can’t consent to divorce.

(b) Service of papers on a person named to have committed adultery {O35 R273 (1), (2)}

See Cloete v Cloete 1951 SR 121

The plaintiff sought divorce against the defendant on the grounds of adultery. The person
in whom the defendant was not cited as co-defendant but mentioned by name in the
declaration.

Held: The declaration and summons should have been served on the named person to
give him an opportunity of appearing for the court and clearing his name.

See De Salis v De Salis 1957 R & N 663

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

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

The person who is named for adultery can actually waive not have papers served on her.
See Mayhew v Mayhew (1972) RLR 55.
The plaintiff brought an action for divorce in which he sought condonation of his own
adultery with a named woman. The woman had supplied an affidavit in which she

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admitted that she had committed adultery with the plaintiff and stated that the plaintiff
intended to marry her and she waived her rights to service of the relevant documents.
The waiver was accepted.

See Kettle v Kettle 1972 (2) RLR 130

Uncontested matters
Draft order – type of order you want the court to order. If the court agrees with the order
it will grant an order in terms of the draft.

Affidavit of Evidence: R277B allows the plaintiff to give their evidence in the sum of an
affidavit. There is a time limit to file affidavit.

if matter set down in Harare file at 10.00 am on a Friday immediately preceding the
Wednesday in which the matter is to be heard.

Bulawayo file at 10.00 am on Wednesday immediately preceding Friday in which the

matter is
to be heard.

The affidavit must be accompanied by the following documents:

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

Procedure when matter is contested

Appearance to defend (O 7 R 48-49)

The form used is form No. 8

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

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

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The court decided on the authority of Herbstein & Van Winsen 3 rd ed pg 242 and the case
cited therein that the irregular appearance to defend did not entitle the plaintiff to a
default judgment. The proper remedy had been to postpone the matter in order to allow
the defendant to serve the appearance to defend to the plaintiff. The plaintiff had to pay
for these added costs.

Held: failure to enter appearance to defend does not result in automatic barring if there is
defective appearance.

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

Pine Long Investments (Pvt) V Vallance & Anor 2009 (2) ZLR 33 (H)
A notice of intention to defend, consequent upon the service of a summons will be
irregular if the defendant having filed the original notice with the registrar fails to serve a
copy on the plaintiff or his legal practitioner. In the event of failure to serve the notice in
this manner, the plaintiff will be entitled to assume that notice of the intention to defend
has not been given. If however, the plaintiff does so and moves for judgment, the court
will not grant judgment, but will order the defendant to pay the wasted costs occasioned
by his omission. Rule 50 provides the sanction (barring) for failure to serve the notice in
terms of r 49. The irregularity in this case did not warrant the punishment of having the
notice of appearance struck off and that it be expunged from the record. Such a relief
would be too drastic in the view of the fact that the notice was entered timeously.

Application to strike out

O 21 R137 (1) (c)

R141 what should be struck out is any matter which is argumentative, irrelevant matter.

Green v Latz 1966 RLR 63

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

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

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

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

The claim in reconvention does not necessarily have to arise out of the same facts as the
plaintiff claim. The rules of the claim in re-convention are the same as the declaration
mutatis mutandis {R 121(2)}. The defendant can also incorporate allegations of facts
contained in the plea or declaration into his claim in re-convention {R122}.

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

Musakwa J

The plaintiff (respondent) issued an endorsed summons in terms of r 13 of the High Court
rules. The summons was accompanied by a declaration. Appearance to defend was then
filed on behalf of the defendants (applicants). Subsequently they requested for further
particulars to which the plaintiff responded. They again sought further and better
particulars to which the plaintiff responded. They then wrote to the plaintiff, pointing out
that the filing of a declaration was superfluous since he had opted to file an endorsed
summons. They intimated an intention to apply for the striking out of those parts of the
summons that were inconsistent with the particulars furnished. The plaintiff replied that
there was nothing to prevent the defendants from pleading and filed a notice to plead and
intention to bar. The defendants then filed an application to strike out. The application to
strike out was in the form of a statement which contended that the plaintiff’s declaration
should be struck out as being superfluous.

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

chamber application, as required by r 226. The form of such application is stipulated in r
227. An application to strike out will not be granted unless the applicant shows that it will
be prejudiced in the conduct of its claim or defense. While the plaintiff needlessly filed a
declaration accompanying an endorsed summons, the defendants had not led evidence
showing in what way it they had been prejudiced in the conduct of their defense. That the
defendants would needlessly incur costs in pleading to the additional document was
neither here nor there. The plaintiff would in the event of succeeding in his claim be
restricted to costs of preparation of the endorsed summons only.
Claim in reconvention must be bound together filed together with the defendant’s plea
{R121 (1)}. If the plaintiff’s action is stayed, discontinued or dismissed the defendant
may still proceed with the claim in reconvention {R123}. Normally judgment on the

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claim in reconvention and on the plaintiff’s, claim must be pronounced at the same time
R120 (1). The reason is that in terms of facilitating execution the two judgments can be
set off. Where (the judgment) the claims can be set off the court can incorporate the set
off in the judgment {R120 (2)}.

In appropriate circumstances provided good cause shown it would be necessary for the
plaintiff’s claim and the claim in reconvention to be tried separately R124. This applies
when the two claims are totally unrelated. The court could actually suspend the execution
of the first judgment to be granted pending the outcome of another matter.

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

Defendant’s claim in reconvention

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

Defendant’s plea

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

must set out the defendant’s defense and it must deal with the allegations of facts made in
the declaration or summons. The defendant either admits allegations or deny it or confess
and avoid. A confession and avoidance is when the defendant admits admission by
alleging further facts which justifies the admitted facts or makes him not liable. Where
there is an admission the defendant is bound by that and it cannot be withdrawn except
with the leave and permission of the court. If the defendant seeks withdrawal of the
admission the court will require evidence of the circumstances in which it came to be
made

Huntly-Silburn v Levien 1937 TPD 199

Exception in this rule is in a damage claim. In damages claim it is not necessary to deny
the damages claimed or their amount. According to R 117 the damages shall always be an
issue unless expressly admitted.

Where a defendant is raising several grounds of defense which are based on separate facts
then each defense must be separately stated {R 116 (2)}. The defendant is not allowed to

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set out inconsistent defenses unless they are in the alternatives. If a denial results in the
matter taking longer than was necessary thus incurring extra-costs and the court is of the
view that the fact denied should have been admitted then the defendant may have to pay
extra costs R118.

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

Actual procedure for filing Pleas

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

Special Pleas

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

The difference between a special plea and an exception is that with an exception the
defense raised must appear ex facie the declaration or summons or pleadings excepted to
– any matters outside declarations or summons may not be introduced. With a special
plea, the defense raised may be established by evidence outside the declaration the
counter-claim.

Two categories of special plea are:

(a) Dilatory – to delay the proceedings until some temporary bar to the claim has
been removed.
(b) Declinatory – to quash or put an end to the proceedings.
N.B/ The other name for dilatory plea is plea in abatement.

Declinatory Plea (in bar)

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

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

Appellant’s claim against respondent for maintenance of her child had been dismissed by
a maintenance court on the ground that the respondent was not the child’s father.
Appellant then constituted proceedings against respondent in magistrate court for

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damages for seduction, alleging in her particulars of claim that as a result of the seduction
she had given birth and thereby incurred certain out of pocket expenses. Respondent’s
plea in abatement that the issue of seduction and birth of child was res judicata between
the parties was upheld and appellant’s claim dismissed. On appeal

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

(i) the matter is cut of time – claim can no longer be brought because lapse of time –
Prescription Act 8:07

DEFINITION OF “DEBT’ UNDER PRESCRIPTION ACT

Ndlovu V Ndlovu and Anor 2013 (1) ZLR 110

The applicant sought a declaratory order to effect that the purported sale of his house to
the first defendant was unlawful and void and for an order restoring possession of the
house to him. The application was made well over the years after the first defendant had
taken possession of the house. The only issue was whether the claim had prescribed in
terms of the Prescription Act [chapter 8:11]

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

In the case of Gumbo v Sunganayi Motorways (Pvt) Ltd 1988(2) ZLR 83 (HC) it was held
that In terms of section 15 (1) of the prescription act no 31 of 1975, prescription begins to
run as soon as a debt is due. Section 28 of the prescription act (chapter 1) applies to the
calculation of periods of prescription in terms of the prescription act. Where a debt
becomes due on a particular day that day is excluded from reckoning but the last day of
prescription period is included. Debts often become due at the same time as they arise,
but this is not necessarily so. In the case of a claim for damages for injuries caused by the
defendant’s negligence, the debt would not become due until it had been quantified and
demand made to defendant.

Pickering v Syfn Holdings Limited 1980 (1) ZLR

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The plaintiff was involved in a motor accident on 3 rd April 1977 in the course of which a
passenger was injured. The passenger sued him for damages and the insurer repudiated
liability claiming that the plaintiff had breached warranties in his proposal form.
Judgment was given against him. The plaintiff sued defendant a firm of insurance brokers
whom he had appointed to obtain his motor insurance. He claimed that they had failed to
obtain from his medical practitioner the necessary information to complete his proposal
correctly and had in the consequence filled the form on his behalf incorrectly. As a result,
he had claimed sufficient damages arising from the passenger’s successful suit against
him.

Summons in the present case were served on the 9 th of January 1981. The plaintiff’s
insurer had repudiated liability on the 8 th of June 1977 and the passenger had advised the
plaintiff of her claim against him on the 8 th of June 1978. The defendant filed a special
plea alleging that the plaintiff’s claim was prescribed as the defendant’s breach became
of mandate of agency had become due when insurer repudiated liability.

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

Carinus v Dutoit 1992 (2) ZLR 71

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

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

Makgatho v Old Mutual Life Assurance Company Zimbabwe Ltd 2015 ZLR 5 (S)

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The defense of prescription must be raised in pleadings as there may be need for the other
party to explain the reason for the delay.

LIS PENDENS.

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

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

The case of Diocesan Trustees for Diocese of Harare V Church of the Province Of
Central Africa 2009 (2) ZLR 57 (H) held that

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

N.B/ There is no prescription under customary law.

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

Eagle insurance Co Ltd v Grant 1989 930 ZLR 278

It was held that a claim under section 25 of the road traffic act becomes prescribed upon
expiry of two years from the date on which the claim arose while under section 28 of the
interpretation act time is reckoned exclusively of the first day and inclusively of the last
day. This is only a general rule and is subject to the provisions of any particular

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enactment. In respect of claims under section 25 of the road traffic act, the cause of action
accrues on the day of accident causing damage and prescription begins to run on that
date.

Police Act - 8 months

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

“Section 70 of the Police Act states as follows:

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

(iii) Lack of jurisdiction.

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

Dilatory Plea
This refers to such special pleas that have an effect on delaying the proceedings
(i) lis alibi pendens – some matter is pending in another court.
(ii) No locus standi - person who has instituted proceedings has no capacity to sue

Read: Edwards v Woodnutt N.O 1968 (4) SA 124

In the case of Homodza v Chitungwiza Municipality HH-38-14 presided over by Takuva J

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

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This document amounted to an acknowledgement of debt. By signing it, the respondent

signified its intention and willingness to be bound by the terms of the document.

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

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

The applicant was seeking to bring certain companies under judicial management
pending the removal of the respondent as directors of the companies. The respondents
raised a point in limine (in limine – point raised at beginning of proceedings) that the
applicant had no locus standi. The applicant had been registered in 1977 as a welfare
organization under the Welfare Organization Act. The Constitution of the applicant gave
him among other powers to purchase and acquire property both movable and immovable
and to carry on business with a view to increasing the revenue of the association and also
to institute and defend legal proceedings.

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

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

PARTNERSHIPS

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

EXCEPTIONS

Either party can except to the other party’s claim or defense. An exception to the
plaintiff’s claim will be on the basis that the claim does not disclose a cause of action or it
is 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 defense or its so
vague and embarrassing that the plaintiff does not know what the defendant’s defense is.

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

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

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

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

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

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

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

Matewa v ZETDC HH-304-13

(Mathonsi J)

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

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the plaintiff must plead and prove that the defendant committed a wrongful act which
resulted in actual loss.

HELD The determination of whether a claim is excepiable or not cannot be premised on

proof of an averment. Proof relates to evidence which is the province of a trial and not an
exception. The essence of any claim is located in the pleadings, whose function is to
inform the parties of the points of issue between them, to enable them to know in advance
what case they have to meet, to assist the court define the limits of the action and to place
the issues on record. To that extent pleadings are required to be drawn in summary form,
must be brief and concise and must state only relevant facts and not evidence. It is the
duty of the court, when an exception is taken to a pleading, first to see if there is a point
of law to be decided which will dispose of the case in the whole or in part. If there is not,
then it must see if there is any embarrassment, which is real and cannot be met by the
supply of particulars. Unless the excipient can satisfy the court that there is such a point
of law or such real embarrassment, then the exception should be dismissed. A pleading is
excepiable on the ground that it does not disclose a cause of action only if no possible
evidence led on the pleading can disclose such cause of action.

(2) The courts are increasingly being called upon to adjudicate over exceptions which are
devoid of merit and appear intended to delay proceedings. Invariably excipients are
approaching the court, frequently praying for a dismissal of claims, as in casu, when the
proper remedy would be for the plaintiff to be directed to amend the impugned pleading.
Where an exception of this nature is upheld the plaintiff should be allowed to amend the
pleading.

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Whether exception can be used to raise objection of jurisdiction

In the case of National Employment Council For The Construction Industry V Zimbabwe
Nantong International (Pvt) Ltd the High Court upheld an objection to its jurisdiction
taken by way of exception. On appeal

HELD: as a general rule, exceptions taken by a defendant must be limited to objections or

defenses that arise ex facie the declaration itself. These would include averments that the
declaration or part thereof does not disclose a valid cause of action or is vague and
embarrassing. On the other hand, where the point taken constitutes a special defense,
such absence of jurisdiction, res judicata or prescription, the procedure to be followed is
by way of special plea. These are the instances where the defense relied upon is not
evident ex facie the declaration and involves the averment of some new fact or facts to be
proved with fresh matter. The procedure by way of special plea enables the plaintiff to
rebut the defense raised by replication and adduction of further evidence where
necessary.

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

Read: Salzmann v Holmes 1914 AD 152

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

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

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Held: The plaintiff was correct to except because if the offending paragraphs of the plea
were intended as a special defense, 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 more or less might mean anything and defendant should have explained
unpleasant circumstances referred to in his plea.

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

“The distinction between exception and application to strike out is clear. An exception
goes to the root of the entire claim or defense 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 defense but are only a
portion of one must if objected to be attached by a motion to expunge application to
strike out.”

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

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

Procedure for excepting

O21 R137 (1) (b)

Form No. 12 is used

Application to strike out

R141 what should be struck out is any matter which is argumentative, irrelevant matter.

Green v Latz 1966 RLR 633

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

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

Procedure to strike out

Form 12 is used for procedure to apply to strike out.
Read Tekere v Zim Papers (Pvt) Ltd 275 1986 (1) ZLR 275

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It’s a defendant’s claim against the plaintiff 18.

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

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

Musakwa J

The plaintiff (respondent) issued an endorsed summons in terms of r 13 of the High Court
Rules. The summons was accompanied by a declaration. Appearance to defend was then
filed on behalf of the defendants (applicants). Subsequently they requested for further
particulars to which the plaintiff responded. They again sought further and better
particulars to which the plaintiff responded. They then wrote to the plaintiff, pointing out
that the filing of a declaration was superfluous since he had opted to file an endorsed
summons. They intimated an intention to apply for the striking out of those parts of the
summons that were inconsistent with the particulars furnished. The plaintiff replied that
there was nothing to prevent the defendants from pleading and filed a notice to plead and
intention to bar. The defendants then filed an application to strike out. The application to
strike out was in the form of a statement which contended that the plaintiff’s declaration
should be struck out as being superfluous.

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

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

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In appropriate circumstances provided good cause is shown it would be necessary for the
plaintiff’s claim and the claim in reconvention to be tried separately (R124). This applies
when the two claims are totally unrelated. The court could actually suspend the execution
of the first judgment to be granted pending the outcome of another matter.
See Van der Berg and Partners Ltd v LC Robinson and Co. Ltd 1952 SR 148

Defendant’s claim in reconvention

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

Replication (O 19)

A replication is not compulsory. It is where the defendant raised new facts in his plea. A
replication will be required where the defendant’s plea is one of confession and
avoidance (R126).
If it is to be filed must be filed within 12 days of the date of service of the plea (R125). If
the plaintiff does not intend to file a replication he can deliver a letter to the defendant
notifying him that he does not wish to file replication and he is joining issue with the
defendant. It should be delivered within 12 days of the service of the plea (R130).

Plaintiff’s plea to the defendant’s claim in reconvention; the plaintiff follows the same
rules as in defendant claim in reconvention (R127).

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

That follows the same rules as the plaintiff’s replication.

Rejoinder

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

Closure of pleadings (0 16)

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

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

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

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

Significance of Closure of Pleadings

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

special circumstances you have leave of the judge to proceed to discovery of documents
without of documents (R160). The parties cannot proceed to pre-trial conference before
closure of pleadings (R182). The parties can’t proceed to set the matter down for trial
without closure (R214).

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

See Jankowiak & Anor v Parity Insurance Co. 1963 (2) SA 286
The plaintiffs were husband and wife and had been injured in a collision between a motor
vehicle driven by the wife by the one driven by Forest. They instituted proceedings
against Forest’s insurer. The parties joined issue on the 2 nd of June 1962. The husband
died on the 4th of June 1962. The wife was the executrix of the husband’s estate. She
applied to be substituted for the husband in relation to the husband’s claim. The
defendant agreed to the substitution in relation to specific damages i.e medical expenses,
hospital expenses and loss of earnings and not in relation to general damages which were
for pain and suffering because claim was personal to the deceased and therefore not
transmissible to the estate. The parties brought the issue to court for determination.

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

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Other common procedure arising during contested actions

Barring (O 12)

When does a party become barred - (O7 R150)

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

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

City of Harare v Minister of Local Government Rural and Urban Development v V & P
Investment (Pvt) Ltd & Deputy William Aitken SC 195/92.
On the 6th of February 1990 the defendant was served with a request for further
particulars to be plaintiff’s declaration. The particulars were provided on the 12 March
1990, on 3 April 1990 and 10 May 1990 respectively. The defendants filed identical
exceptions to the plaintiff’s declaration. The first defendant’s exception was set down for
hearing on 23 June 1990. The second exception was not set down for hearing because
the determination of the first defendant’s exception would dispose of the matter. The
issue was then raised at the hearing that the exception was filed out of time and it was the
response from counsel that an exception is not a pleading under the rules and was not
subject to the procedure for barring. The matter was taken on appeal and the appeal court
said an exception is a pleading and subject to the barring procedure.

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

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The effect of the bar

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

Removal of the Bar

It can be done by consent. Form No. 10 is used to file a notice of removal of bar. If the
other party refuses to consent make an application for removal of bar (R 84). The
application can be made either as a chamber application or as an oral application at the
hearing of the action or suit involved (R84).

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

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

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

Mafusire J

An application for the uplifting of the automatic bar in default of appearance to defend is
made in terms of r 84 of the High Court Rules 1971. The rule does not set out any
guidelines or parameters on how the judge’s or court’s discretion might be exercised.
However, an applicant for the removal of the bar has to show good and sufficient grounds
for the bar to be uplifted. Not only must there be a reasonable explanation for the default,
but also the applicant must show that he has a bona fide defense on the merits. What
constitutes willful default and a bona fide defense depends on the merits of each case.
Willful default can be said to occur when a party freely takes a decision to refrain from
appearing with full knowledge of the service or set down of the matter. It is akin to a
waiver by the party of his rights. In practice, willful default is seldom clear-cut. In most
cases, it is a question of the degree of negligence by the defaulting party that the court is
called upon to weigh and to determine whether or not that negligence amounts to willful
default. In coming to a conclusion, there is a certain weighing of the balance between the
extent of the negligence and the merits of the defense

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In Standard Bank of SA Ltd v Kircos 1957 R & N 144 the application for the removal of a
bar for failure to file a plea timeously was supported by an affidavit by the applicant’s
attorney. Much of the affidavit was mere opinion on the merits of the applicant’s case. It
was held that in the absence of special circumstances, it is the client himself who should
make the affidavit because it is he or she who knows the facts upon which the case is
founded. When the time came it will be for him or applicant to establish her claim.
Postponement will be granted to allow the applicant to file a proper affidavit.

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

In Petras v Petra SC 71/91 the plaintiff brought an action for divorce against the
defendant. The defendant entered appearance to defend but failed to file his plea and
counter-claim timeously. The defendant was barred. The defendant applied for removal
of the bar (uplifting of the bar). The application was dismissed by the High Court on the
ground that there was no reasonable explanation of the failure to file the plea timeously
and the proposed defense had no merits. The defendant appealed to the SC.

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

Further particulars – {O 21 R137 (1) (d)}

Further particulars can be requested for two different reasons and can be requested by
either party.

1. to enable the party requesting particulars to plead.

2. particulars can be requested for the purpose of preparing for trial.

For the purposes of pleading

IMF Management Services (pvt) ltd v Sicom Spa (Zimbabwe) ltd 1991 91) ZLR 509 (SC)
The respondent instituted an action against the appellant with the service of a specially
endorsed summons. After giving the appellant several reminders that its plea was
overdue, the respondent delivered a notice of intention to bar. Only then did the appellant
react with the filing of a plea and claim in reconvention. The respondent served a request
for further particulars to the claim in reconvention. There was no reply to the request
prompting the respondent to give a notice of intention to bar in respect of the failure to
furnish further particulars. This threat did not evoke a response and so a copy of the
notice was filed with the registrar of the high court. Three weeks later the appellant
queried with the respondent the validity of the bar and wrote informing the registrar that
it was now in a position to provide further particulars and that in its opinion the notice of

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intention to bar, and the subsequent bar, were invalid. As this contention was strenuously
resisted by the respondent, the appellant instituted notice of motion proceedings, seeking
a declaratur in its favour, failing which an order uplifting the bar.

Held: A pleading is a document which contains distinct averments or denials of

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

What is the degree of particularity

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

(Mutema J)

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

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

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

(i) wanted to know how much was allowed for the cost of
(e)salaries, description and number of employees
(f) other office expenses stating what they are

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(g) how much was allowed for advertising stating how much and what proportions of the
total advertisement expenses is desired for printing overheads.
(h) How much was allowed for depreciation other than depreciation of printing machine
and state what is meant by depreciation and how it is calculated.
(i) What was meant by overhead rent and how it differed from other rent
(j) The defendant wanted to know the details of the interest claimed
(k) Details of the bank charges.

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

Time Security Pvt Ltd v Castle Hotel Pvt Ltd 1972 (3) SA 112
The plaintiff sued the defendant in the magistrates court for payment of $85,63 being an
amount allegedly due by the defendant to the plaintiff for services rendered. The services
were, providing a security guard for the defendant’s premises. The defendant pleaded to
the summons as follows: the defendant states that it was quire entitled to terminate the
contract because the security guard supplied was not carrying out his duties properly and
not providing real security at all. The plaintiff requested further particulars to the
defendant’s plea
(a) the plaintiff wanted full details of the alleged failure by the security guard to carry out
his duties properly;
(b) the plaintiff wanted details of what was meant by the allegation that the security
guard was not providing any real security.
The defendant refused to furnish the particulars on the ground that they were not
necessary to enable the plaintiff to plead. The plaintiff applied to the magistrate court for
an order compelling the defendant to supply them. The application was dismissed and he
appealed to Appellate Division. The SC started to define what is meant by ability to plead
or prepare for trial.

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

Held: On the issue of purposes of pleading “a litigant must not be put in the embarrassing
position of being forced to resort to bare denial by the lack of particularity a denial which
in the light of the particulars supplied at a later stage he might well be obliged to

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withdraw or qualify. He should be in the position to honestly deal with the matter and
either to admit or deny an allegation in the light of particulars furnished” pg. 114.

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

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

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

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

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

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

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

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

MUTEMA J

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

Discovery of Documents (O24 R160)

Discovery is initiated by a notice to make discovery which is a written notice requiring a

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

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

Morgan Tsvangirai V Registrar General (Elections) HC 469/2003

The court in this case dealt with the law relating to discovery. It said that order 24 of
High Court Rules deals with discovery of documents. It sets out in some detail what
should be discovered, the effect of non-disclosure of documents further discovery of
documents, inspection of documents and other related matters. The court quoted with
approval the quotation in Herbstein and Van Winsen in “The Civil Practice of the
Supreme Court of South Africa” 4th ed. at p 582 which described the purpose of
discovery as follows:
“Discovery is a procedure whereby a party to an action may discover what documents
relating to the matters in issue between them are in the possession of his opponent.

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

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

Once a party attaches discovery of documents and the other party thinks the discovery is
incomplete he can make a note of further discovery (R162). If the party insists that they
do not have the documents they have to state that fact on oath on the affidavit. Where the
claim of privilege exists, it can be challenged in terms of R177. The court can actually
inspect the documents.

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

In the case of banker’s books or books of accounts on constant use for the purpose of any
business in case of inspection the place is their usual place of custody.
R164 (1) (a) was inserted by SI 80/00 – Form No. 20 specifying the place where
documents will be inspected.
R164 (2) – place in LP’s office or usual place of custody of books of accounts.

 Where one receives Form, No. 20 inspect the documents during normal hours between
the period specified R164 (3).
 If a party fails to produce a document for inspection when required to do so, he will
not be allowed to use it at the trial unless the court orders otherwise on good cause shown
R164 (4).

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 If a party fails to make discovery to make inspection, you make a chamber application
for an order to make compliance with the notice to inspect {R165 (1)}.
 If a party is ordered to make discovery in terms of R165 (1) and still do not comply
with the order, then the party in whose favour the order was made can make a chamber
application for the dismissal of the party’s claim or striking out of the defense if it’s the
defendant who is failing to comply with the order. The judge dismissing the claim or
strike out defense may proceed to give default judgment against the defendant. If it’s a
claim for damages then the court will lead evidence as to quantum either by affidavit or
oral (R165 (2).

A party who requires another to produce a document at the trial can give them a notice in
terms of Form. No. 21 {R166 (1)}. The notice must be given at least three days before
the hearing. However the court may allow the notice to be given during the course of the
hearing {R166 (2)}. The court may also order the production by any party of any
documents in his power or control relating to the matter in question and the order is made
during the course of the proceedings (R167). R 168 deals with failure to produce the
documents at the hearing of the proceedings or has been ordered to produce that the
hearing by the court and fails to do so – the court may dismiss the claim or struck out the
defense of the defendant and gives default judgment. This is subject to whether there has
been evidence either orally or by way of affidavit to quantum the amount if its for
damages.

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

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

Service of an order or notice to make discovery on the LP shall be sufficient notice unless
the party against whom the order was made shows that he had no knowledge or notice of
the order in R171.

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

PRE-TRIAL CONFERENCE (026) (curtailment of proceedings)

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

Sithole v P G Industries (Zimbabwe) Ltd. t/a African Lumber Company (Pvt) Ltd.

Judgment No. SC 2/04

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

“At a pre-trial conference the parties shall attempt to reach agreement on possible ways
of expediting or curtailing the duration of the trial and on the following matters;
(a) the obtaining of admissions of fact and of documents.
(b) the holding of any inspection or examination.
(c) the exchange of reports of experts.
(d) the giving of further particulars reasonably required for the purpose of the trial.
(e) plans, diagrams, photographs, models and the like, to be used at the trial.
(f) the consolidation of trials.
(g) the quantum of damages.
(h) a definition of the real issues and the manner in which any particular issue may be
proved.
(i) an estimation of the probable duration of the trial.
(j) the preparation of correspondence and other documents to be handed in at the trial in
the form of a paged bundle with copies for the court and all the parties; and, if it is
practicable to do so, the parties shall attempt to reach a settlement of all or any of the
matters in dispute between them.”

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

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

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

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

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

(i) record the decision taken at the PTC and any agreements reached by the parties;
(ii) Make an order limiting the issue for trial to those not deposed of by admission or
denial.
(iii) Record the refusal of any party to make an admission or reach an agreement and the
reasons thereof. If it turns out that the reasons were unreasonable then the party will
be awarded costs {R182 (10)}.

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

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

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

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

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

Special Procedure for Harare: NI March 1995

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

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

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

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

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

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

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

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

Godknows Jonas Versus Rhona Shawlyn Mabwe HH 72-16

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

Consequences of failure to attend pretrial conference-

Masama v Borehole Drilling (Pvt) Ltd. 1993 (1) ZLR 116 SC.
In this case the applicant’s legal practitioner had failed to attend a pre-trial conference.
This was despite the fact that respondent’s legal practitioner had informed him in writing
and had also attached a copy of the notice of set down. Default judgment was then
granted as a result

Set Down

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

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

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

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Pickering v Zim Newspapers 1991 (1) ZLR 71.

The applicant issued summons for defamation on the 25 th of January 1990. Pleadings
were closed on 9th of August 1990, the HC was held and there was application for set
down. The applicant sought an urgent set down of the matter because the defendant was
continuing to publish defamatory allegations against him and this had a detrimental effect
not only on him and family but also in public confidence in the banking sector. He
applied in terms of S18 (9) of the constitution. He also said that the defendant would
suffer no prejudice if the matter was heard as a matter of urgency. He said the matter was
unlikely to be held in 1993 if the normal proceedings were followed. The respondent
applied for cancellation of the application alleging that the lack of facilities for the
hearing of civil trials could not defeat the applicant’s constitutional right, submitted that
matters that that of the applicant should be set down within 1 years of the commencement
of the proceedings and within 6 months after application and any delay beyond that time
is unreasonable.

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

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

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Trial (0 49)

Trials are generally open to the public in terms of s49 of the HC Act. Proceedings are in
English but the court can choose the trial to be held in camera.

Hayes case

The duty to begin depends on who has the burden of proof. If it’s on the plaintiff, the
plaintiff adduces evidence first R437 (1). If on the pleading the burden is on the
defendant then defendant adduces evidence first R437 (2). Where the burden of proof is
on the plaintiff on same issues and on the defendant on others then the plaintiff will
adduce evidence first on those issues on which the burden of proof is on him. The
plaintiff will then adduce evidence on all issues. The plaintiff will then adduce evidence
on those issues not previously addressed or dealt with R437 (3)-(4).

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

The opening address (plaintiff) {R438 (2)}.

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

Presentation of Evidence

 Witness or other parties themselves should be outside the court until their time to give
evidence has come.
 Guard against inadmissible evidence.
 The court in a civil trial cannot call a party to give evidence without the consent of the
parties. However, the court can recall a party who has testified to clarify certain
aspects of the case. Parties can also recall witnesses and if the other party objects
make an application to recall and its done when the parties have closed the case so
that you reopen {R437 (5)}.

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

The appellant was one of a group being conveyed in a lorry insured by the Respondent on
a trip to a church meeting. The owner of the lorry had charged the party the estimated
expenses in respect of the petrol and oil. The appellant’s pro rata share was two shillings
and sixpence which he agreed to pay. In an action for damages sustained as a result of
bodily injuries received when the lorry overturned a constable, who had investigated the
accident, had handed a plan and a key thereto. The key showed the registration number of
the lorry to be TAB 3581 while the registration number on the lorry was TAB 3541. At
the close of the plaintiff’s case the defendant stated that on the question of liability it had
only two points to argue, (1) that it had not been found that the vehicle involved was the
lorry referred to in the declaration; and (2) that the evidence did not justify a finding that

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the appellant was being carried for reward. Plaintiff was granted an adjournment to
consider his position and on resumption he made application (1) to hand in a report of the
accident by the owner of the vehicle in which it was clear that the motor vehicle involved
was TAB 3541 AND (2) to recall the constable to testify that he had made a mistake in
the key to the plan. Both applications were refused and the court declared absolution
from the instance.

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

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

The court can initiate an inspection in loco.

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

a. Evidence in chief
Students to do own notes. Tutorial

b. Examination in Chief

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

c. Re-examination
Students to do own notes. Tutorial

24. Postponement (adjournment of trial proceedings R 445)

Adjournment can be at the instance of the court. The first thing to do is to approach the
other side and ask for consent to postponement but if they do not consent make an
application to the court for postponement. The court will take the following into
consideration;

Midkwe Minerals (Pvt) Ltd v Kwekwe Consol Gold Mines (Pvt) Ltd & Ors S-54-13

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(Ziyambi JA, Chidyausiku CJ & Mutema |AJA concurring)

(Judgment delivered 2 September 2013)

The grant or otherwise of a postponement is in the discretion of the court. A party

seeking the grant of a postponement or other indulgence at the hearing must come
prepared for a grant or refusal of its request. A legal practitioner must be prepared, in the
event of a refusal by the court to grant a postponement, to proceed with the hearing if so
ordered. To appear before the court totally unprepared and totally ignorant of the merits
of the case smacks of negligence on the part of the legal practitioner.

Madzimbamuto v LandnerBurke NO & Ano. 1 1966 RLR 228

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

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

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

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

Conclusion: issues were sufficiently complex and prima facie case to allow the
postponement to allow filing by affidavit.
Issue of prejudice by postponement; the court noted that the respondents were prepared to
release the applicant’s husband from prison without admitting the unlawfulness of the
detention.
Held: The matter was to be postponed and the respondent ordered to pay wasted costs
and to file their affidavits by 28 April 2006.

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

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

1. it was alleged that the plaintiff had filed his discovery affidavit late

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

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

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

Cunningham v Cunningham 1958 R & N 655

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

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

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

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

Zaranyika v Zvoma & Anor HH-222-10

(Hungwe J)

(Judgment delivered 23 May 2012)

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

JUDGMENT (absolution from the instance).

It can be granted in two different circumstances

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

Supreme Service Station (1969) Pvt Ltd v Fox and Goodridge 1971 (1) RLR 1

The appellant who was the applicant sued the responded in the magistrate’s court for the
costs of work and labor done and materials supplied in repairing a motor-car. At the close
of the plaintiff’s case which defendant successfully applied for absolution from instance.
The plaintiff appealed against the decision. It was common cause that the car did not
belong to the defendant’s company but to Fox personally. Fox had signed a form
applying for credit in which he bound the company as co-principal debtor. The account
remained unpaid for several months and the managing director of the plaintiff thought it
desirable to obtain the signature of Goodridge who was Fox’s director and then applied
for credit. Goodridge refused to sign the form alleging that Fox had no authority to sign
the form alleging that Fox had no authority to bind the credit of the company and also
that the care was Fox’s personal car. Invoices for the work performed were put in as
exhibits at the trial and customer’s name was given as Fox and Goodridge (Pvt) Ltd. In
deciding the application for absolution from the instance to magistrate came to the
conclusion that no reasonable court could give judgment for the plaintiff and that is why
he granted absolution from the instance.

On Appeal

Held: The magistrate erred in failing to distinguish application for absolution from
instance at the close of the plaintiff’s case and application for absolution at the conclusion
of the trial. The test given by the court:

(i) where the is an application for absolution at the end of plaintiff’s case the rest to be
adopted in deciding to grant on granting absolution is whether or not a reasonable court
might grant judgment for the plaintiff. The court may take into account that a reasonable

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court might make a reasonable mistake of fact. The court must also take into account that
the defendant had not given evidence to refute the plaintiff’s evidence and if the defense
is something peculiarly within the knowledge of the defendant and the plaintiff has made
out some case to answer the defendant must not be allowed to cause an injustice by
seeking absolution from the instance. In other words the plaintiff must not be lightly
deprived of his remedy without first hearing the defendant.

(ii) Absolution from instance at end of trial” the test is whether the court could or ought
to grant judgment in favour of the plaintiff.

a. Types of Judgments

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

b. Absolution from the instance.

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

Supreme Service Station(1969) Pvt Ltd v Fox and Goodridge 1971 (1) RLR 1

The appellant who was the applicant sued the responded in the magistrates court for the
costs of work and labor done and materials supplied in repairing a motor-car. At the
close of the plaintiff’s case which defendant successfully applied for absolution from
instance. The plaintiff appealed against the decision. It was common cause that the car
did not belong to the defendant’s company but to Fox personally. Fox had signed a form
applying for credit in which he bound the company as co-principal debtor. The account
remained unpaid for several months and the managing director of the plaintiff thought it
desirable to obtain the signature of Goodridge who was Fox’s director and then applied
for credit. Goldridge refused to sign the form alleging that Fox had no authority to sign
the form alleging that Fox had no authority to bind the credit of the company and also
that the care was Fox’s personal car. Invoices for the work performed were put in as
exhibits at the trial and customer’s name was given as Fox and Goodridge (Pvt) Ltd. In
deciding the application for absolution from the instance to magistrate came to the
conclusion that no reasonable court could give judgment for the plaintiff and that is why
he granted absolution from the instance.
On Appeal
Held: The magistrate erred in failing to distinguish application for absolution from
instance at the close of the plaintiff’s case and application for absolution at the conclusion
of the trial. The test given by the court:

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

(iii) Absolution from instance occurs at end of the trial” the test is whether the
court could or ought to grant judgment in favor of the plaintiff.

Conclusion

There were facts indicating that Fox had authority to bind the defendant’s company the
facts which a reasonable court might grant judgment for the plaintiff. The appeal was
allowed for that reason. If a party does not show up for trial the court will grant default
judgment

CORRECTION AND ALTERATION OF JUDGMENT (R 449)

Munyimi v Tauro S-41-13

(Garwe JA, Chidyausiku CJ & Omerjee AJA concurring)

(Judgment delivered 26 September 2013)

It is a general principle of our law that once a final order is made, correctly reflecting the
true intention of the court, that order cannot be altered by that court. Rule 449 of the High
Court Rules 1971 is an exception to that principle and allows a court to revisit a decision
it has previously made but only in a restricted sense. Where a court is empowered to
revisit its previous decision, it is not, generally speaking, confined to the record of the
proceedings in deciding whether a judgment was erroneously granted. The specific
reference in r 449 to a judgment or order granted “in the absence of any party affected
thereby” envisages a situation where such a party may be able to place facts before the
latter court, which facts would not have been before the court that granted the order in the
first place. Once a court holds that a judgment or order was erroneously granted in the
absence of a party affected, it may correct, rescind or vary such judgment or order
without further inquiry. There is no requirement that an applicant seeking relief under r
449 must show “good cause”. A distinction should be drawn between a case where a
court mero motu decides to rescind or vary an order and one where such an order is
sought on the basis of an application. In the former case, or where an oral application is
made from the bar, the error should appear on the record. In the latter, where a written
application is made by a party whose rights are affected by an order granted in its

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absence, the court would have before it not only the record of the proceedings but also
facts set out in the affidavits filed of record. Such facts cannot simply be ignored and it is
not irregular to adopt such a procedure in seeking rescission. In fact, it might be
necessary to do so in cases where no error could be picked up ex facie the record itself.
As to what constitutes an “error”, such an error would exist where the judge was unaware
of facts which, if he had been aware of them, would have made it highly unlikely that he
would have found it permissible or competent to make an order against a party. Examples
include (a) a default judgment being granted against an applicant who had filed an
appearance to defend court but which appearance had not been brought to the attention of
the judge; and (b) a false return of service being filed by the deputy sheriff indicating that
service had been effected personally, when in fact no such service had been effected.

APPLICATION PROCEDURE IN THE HIGH COURT

Applications (0 32)

Applications can be divided into two categories:

(a) Court application – an application in writing to the court on notice to all interested
parties. (R226 (1) (a)).
(b) chamber application – an application to a judge in writing (R226 (1) (b)).

N.B/ One can make oral application in certain circumstances R226 (2) provides that the
chamber application is not permissible unless the matter falls within the following
categories
(i) if the matter is urgent and cannot wait to be resolved through a court application.
(ii) if the rules or any other enactment provides for the use of chamber application
(iii) if the relief sought is procedural or for a provisional order where no interim relief is
sought.
(iv)If the relief sought is for default judgment or for a final order in the following
circumstances.
(a)where the defendant or respondent as the case may be has had previous notice that the
order has been sought and is in default.
(b) Where there are special circumstances which justify the use of chamber application
(specify the circumstances). In all other circumstances the application is a court
application.

General rules applying to court and chamber applications

 Basically, all applications and the opposition of other documents should be legibly
written on A4 size paper and on one side only {R227 (1) (a)). If it is a long document it
should be divided into paragraphs and the paragraphs should be numbered consecutively
and each paragraph should contain where possible a separate allegation (R227 (1) (b))..
The whole set of documents for the application must e numbered consecutively {R227
(1) (c)). Numbering documents consecutively in a page is called paginating.
 Application and notice of opposition should state the title of the matter and a
description of the document (R227 (2) (a)) and also shall be signed by the applicant or

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the respondent or by his or her LP R227 (2) (b). it should also give an address for
service which should be within a 5km radius from the street in which the document is
filed {R227 (2) (c)}.
An affidavit must be made by the applicant or respondent himself or by a person who
can swear positively to the facts. R227 (4). An affidavit can also have its documents
verifying the facts stated in attachments as annexure and they are part of the affidavit
in which they are attached R227 (4) (b).
 If a party requires an extension of the time within which to respond to the
application they can make a chamber application to the extension and the judge will
make an order as he thinks fit{R 229}. The respondent may file a counter application
(equivalent to counterclaim) R 229 (A).
 R229 (b) gives the court or judge who is hearing an application the power to
permit or require any person to give oral evidence if it’s in the interest of justice to
hear such evidence. R229 C allows the court to condone the use of incorrect form of
application unless they consider that some interested party has or may be prejudiced
by failure to use the proper form and that such prejudice cannot be remedied either by
directions to the service of the application or an appropriate order of the cost.

Zim Case: Need For Certificate Of Urgency In Urgent Applications

General Transport And Engineering Pvt Ltd And Others V Zimbabwe Banking
Corporations Limited 1998 (2) ZLR 301

The preferential treatment of allowing a matter to be dealt with urgently is not only
extended if good cause is shown for treating a litigant differently from most litigants.
Where a party brings a chamber application for urgent relief, it is a procedural
requirement that the application be supported by a certificate by a legal practitioner
setting out with reasons the legal practitioner’s belief that the matter is urgent. The reason
behind such a certificate is that the court is only prepared to act urgently in a matter
where the legal practitioner is involved, if the legal practitioner is prepared to give his
assurance that such treatment is required. Before putting his name on such a certificate,
the legal practitioner must apply his mind and judgment to circumstances and reach a
personal view that the matter is urgent. He must support his judgment with reasons. It is
an abuse for a lawyer to put his name his name on the certificate without certainty that
the matter is of an urgent nature.

Gillespie J held- The extension of protection as a matter of urgency is available from this
court as a matter of discretion. “A party who brings proceedings urgently gains a
considerable advantage over persons whose disputes are being dealt with in the normal
course of events. This preferential treatment is only extended where good cause can be
shown for treating one litigant differently from most litigants. For instance, if it is not
afforded the eventual relief will be hollow because of the delay in obtaining it.”
It is a procedural requirement that a chamber application for urgent relief be supported by
a certificate by a legal practitioner “setting out, with reasons, his belief that the matter
is…urgent…

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DISMISSAL FOR WANT OF PROSECUTION-WHETHER RULE APPLIES IN

CHAMBER APPLICATIONS

Permanent Secretary, Ministry of Higher and Tertiary Education v College Lecturers

Association of Zimbabwe and Ors
A chamber application for the registration of arbitral award was filed by the respondents.
After filing an answering affidavit, no steps were taken by them to finalize the matter
despite applicant’s formal reminder. Three months after they filed their answering
affidavits, applicant approached the court seeking the dismissal of the application for the
registration of the arbitral award on the basis that it had not been prosecuted. In resisting,
the respondents argued inter alia that the procedure adopted by the applicant only pertains
to court and not to chamber applications.

Held: that an opposed chamber application is for all intents and purposes, a court
application. It is unthinkable that the drafters of the rules may have intended that an
opposed application would be allowed to be remain pending ad infinitum without any
recourse to the remedy provided for in r 236 (4) (b).

Held: further that the remedy provided for in r 236 (4) is available to the applicant even
though the application was commenced as a chamber application

Court application

 The form used is form no. 29 and the application must be supported by one or more
affidavits setting out the facts on which the applicant relies (founding affidavit). It can
have supporting affidavits – these are affidavits from people who swear true facts about
facts alleged in the founding affidavit.
 If the application is not to be served on any person the form to be used is form 29 B
with the appropriate modifications.

FORM 29

The applicants will file with the registrar and serve a copy on the respondents.
Requirements for service is found under R 231(1). If a party does not serve an affidavit
then it cannot be used to support an application unless the court orders otherwise {R 231
(2)}. Once the application is served file proof of service with the registrar (R41) in
accordance with the rule 231(4).

If the respondent wishes to respond he should file the notice of opposition within a period
of 10 days exclusive of the day of service and one day of every additional 200 km {R
232}.

If the respondent fails to file the notice of opposition within the time limit he or she shall
be barred. R233 (3) if the respondent wishes to respond he files a notice of opposition in
form 29 which is supported by one or more affidavits (Respondent Opposing Affidavit or
Replying Affidavit).

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The applicant would have to respond to respondent opposing affidavit by an answering

affidavit. The answering affidavit must be filed at least 10 days before the date of hearing
of the application {R 234 (1)}.

After the answering affidavit, other affidavits can be filed except with the leave of the
court or judge {R 235}.

The next stage is to set down the application for hearing. Firstly if the respondent has
been barred then the applicant may proceed to set the matter down without further notice
to him {R 236 (1)}. If there is an opposing affidavit the normal procedure is to set down
the matter in terms of R 223 (general set down for civil cases). Where the respondent has
filed a notice of opposition and opposing affidavit and after one month, the applicant has
neither filed an answering affidavit or set down matter for hearing the respondent has two
options:
(i) (R 223) the respondent may set the matter down for hearing
or
(ii) make the chamber application to dismiss the matter for court of prosecution {R236
(3)}. The same applies where the applicant had filed an answering affidavit and after a
month has not set the matter down for hearing {R236 (4)}.

The date of set down can be altered by a party either by application orally or make
chamber application R237.Where the matter is to be set down the case authorities
{R238}.

Nehowa v Barep Invstms (Pvt) Ltd HH-357-12

(Makoni J)

(Judgment delivered 5 September 2012)

In motion proceedings, the parties proceed by way of filing affidavits via the founding
affidavit, the opposing affidavit and the answering affidavit. These are the foundation
papers in which the parties lay the basis upon which they seek to rely. In terms of r 235 of
the High Court Rules 1971, after the answering affidavit has been filed, no further
affidavits may be filed without leave. Thereafter, if a party is to be represented by a legal
practitioner, it files heads of argument in terms of r 238. The heads of argument must
clearly outline the submissions the practitioner intends to rely on and setting out the
authorities, if any, which he intends to cite. Heads of argument constitute persuasive
argument, making reference to issues and evidence already placed before the court by the
parties at the founding stage. The courts are increasingly coming across heads of
argument which fall short of the definition prescribed in the rules of court. This issue
should be well established and trite, but the courts are increasingly being confronted with
heads of argument where annexures, which should have been part of the pleadings, are
attached to the heads. In some instances, new issues in the form of facts, as distinct from
points of law, are raised in heads of argument. Any process filed in violation of the rules
will not take the parties’ case any further. It constitutes deceit on the part of any party

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seeking to introduce further pleadings or evidence through the back door. A legal
practitioner who pursues such a course of action prejudices his client, both by failing to
present evidence before the court at the appropriate stage and by failing to effectively use
the opportunity to present to the court heads of argument which will assist the client in its
cause. Annexures attached to heads of argument and containing evidence will be
disregarded as they are improperly before the court.

Hearing of the application the order is that the applicant is heard first and the respondent
is heard thereafter responding to applicant’s application and then the applicant replies but
the court may order otherwise (R 239). The court will then grant the order is finality.
The court may grant the order applied for or it can dismiss the application in its entirety
or grant a variation of the order sought. The court may also grant a provisional order
rather than a final order (R 240). The court will then make an appropriate order as to
costs.

Muzurengi v Muchekwa 1992 (1) ZLR 58

The provisions of r 232 c (1) and r 232 c (2) of the high court rules 1971, prescribe how
long in advance of the hearing, the heads of argument of the applicant and the respondent
should be filed must be strictly complied with. Under the rules, the applicant’s heads of
argument must be filed not less than five days before the hearing, excluding Saturdays,
Sundays and public holidays, and the respondent’s heads not less than 3 days before the
hearing excluding Saturday and Sundays and public holidays.

It is imperative that these rules be complied with because advance filing of heads of
argument allows the judge hearing the unopposed matter to study and consider before
hearing the points and authorities raised in the heads. This results in a more meaningful
hearing for concerned. It also signals that opposed matter is likely to proceed on the
appointed date.

The above is why Robinson J gives a stern warning to legal practitioners that if it is the
applicant’s legal practitioner who is out of time, the judge shall have no hesitation in
postponing the matter and if, as is almost invariably the case, it is the personal fault of the
applicant’s legal practitioner for not having prepared and filed and served his or heads of
argument in time, in ordering the applicant’s legal practitioner or firm of legal
practitioners, as the case may be, to pay the respondent’s wasted costs. On the other hand,
if it is the respondent’s legal practitioner who is responsible for not having prepared, filed
and served the respondent’s heads in time, then when postponing the matter and ordering
the respondent’s legal practitioners or firm of legal practitioners, as the case may be, to
pay the applicant’s wasted costs.

Industry Pension Fund v United Refineries Ltd & Ors HH-313-12

(Zimba-Dube J)

(Judgment delivered 31 July 2012)

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The ordinary rule with regard to affidavits is that three sets of affidavits are allowed in
pleadings, namely, supporting affidavits, answering affidavits and replying affidavits.
The court may in its discretion permit the filing of further affidavits in terms of r 235 of
the High Court Rules 1971. It is only in exceptional circumstances or if the court
considers such a course advisable that a fourth set of affidavits may be received. The
purpose of allowing a further or supplementary affidavit is to enable a litigant to file
additional information that he becomes aware of after the filing of the three affidavits as
required in terms of the rules. There must be an application for leave to file such
affidavit. The party applying for the leave must provide a satisfactory explanation for the
failure to put the information or facts before the court at an earlier stage and for the late
filing of the affidavit. The explanation must be one that negatives bad faith or culpable
failure to act timeously. The court must also be satisfied that no prejudice will be caused
to the opposing party which cannot be remedied by an appropriate order as to costs. If
there is an explanation which negatives mala fides or culpable remissness as the cause of
the facts or information not being put before the court at an earlier stage, the court should
incline towards allowing the affidavits to be filed. Where a party makes an admission in
its pleadings, the admission is binding and it is unnecessary for the other party to prove
such admission. A party wishing to resile from such an admission may amend or
withdraw such pleadings in terms of r 189, which permits a withdrawal of an admission.
Where a party seeks to withdraw an admission, he is required to apply to the court for
such a withdrawal. He must give a reasonable explanation of the circumstances under
which the admissions were made and the reasons for the withdrawal. The court in its
discretion may allow such amendment or withdrawal on such terms as it deems fit. If the
court is of the view that to allow the admission to be withdrawn will cause prejudice or
injustice to the other party to the extent that a special order for costs will not compensate
him, it will refuse the application. The court will have to be satisfied that the amendment
sought is a bona fide one. The question must always be posed: “Is the applicant acting
mala fide in seeking to withdraw his admission?”

Chamber application

It should have a draft order. The appropriate form to use is Form 29B. It should be
supported by one or more affidavits unless the application falls within the provisions of R
241(2) where the chamber application is for default judgment in terms of R57 (for a
claim for debt or liquidated demand) and also where the facts are evident from the
records you don’t need an affidavit. If the application is to be served on an appropriate
party use Form No. 29 with appropriate modifications. The chamber application should
be served on all interested parties unless the respondent has had due notice of the order
sought or (applicant is only party to the application) you can’t make it ex parte unless:

R242 (1) sets out the circumstances in which the application is made ex parte (i) if the
matter is uncontentious in that the applicant is the only person who can reasonably
expected to be affected by the order sought (ii) if the order sought is either a request for
directions or an order to enforce any provisions of the rule in circumstances where no
other person is likely to object. (iii) where there is a risk of perverse conduct in that any

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other person who would otherwise be entitled to notice of the opposition is likely to act
so as to defeat wholly or partly the purpose of the application prior to an order being
granted or served. (iv) where the matter is so urgent and the risks of irreparable damage
to the applicant is so great so that there is insufficient time to give notice to other parties
entitled to example a parent about to remove a child from jurisdiction. (v) where there is
any other reason acceptable to the judge why notice should not be given to parties
entitled to.

Ex parte applications require utmost good faith. The applicant should not mislead the
court by giving information which is inaccurate. R 242 (2) requires the applicant to make
ex parte applications to set out the reasons why he believes the mater should be heard ex
parte. If the applicant is legally represented a certificate from a LP is required which also
sets out the reasons that the matter falls within the provisions of Rule 242 (1).

See Vanlear v Begley Bros 1957 R & N 902

ZIMDEF (pvt) Ltd v Minister of Defense and Anor 1985 (1) ZLR 146
The petitioner alleged that in accordance with a joint venture agreement entered to supply
defense materials to the Zimbabwe National Army (ZNA), it negotiated contracts with
the ZNA and on instructions from the second respondent, for a period of eight months
arranged for clearing and delivery of goods supplied to the ZNA. The first respondent
paid most of the money due to the joint venture, and balance outstanding amounting to
$60 466. The petitioner further alleged that it had been paid nothing in terms of the
partnership agreement. Therefore, the petitioner sued for leave for debatement of account
and payment thereof, attachment of the $60 466 and an interdict restraining the first
respondent from making final payment to the second respondent until the dispute has
been resolved.

SMITH J quoting LE ROUX J in Schlesinger v Schlesinger 1979 (4) SA 342 (W): The
utmost good faith must be observed by litigants making ex parte applications in placing
material facts before the court; so much so that if an order has been made upon an ex
parte application and it appears the material facts have been kept back, whether willfully
and mala fide or negligently, which might have influenced the decision of the court
whether to make an order or not, the court has a discretion to set the order aside with
costs on the ground of non-disclosure. It should, however, be noted that the court has a
discretion and is not compelled, even if the non-disclosure was material, to dismiss the
application or set aside the proceedings.

It appears that:
1) in ex parte applications all material facts must be disclosed which might influence a
court in coming to a decision;
2) the non-disclosure or suppression of facts need not be willful or mala fide to incur the
penalty of rescission; and
3) the court, apprised of the true facts, has a discretion to set aside the former order or to
preserve it.

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A legal practitioner can file heads of arguments in terms of R 243.

Set down depends on whether matter is urgent or not if urgent the registrar will
immediately submit the papers to the judge who will consider the matter (R 244).
However, there is a proviso to R 244 that the judge may direct that any interested party be
invited to make representations in such manner and with such time as the judge may
direct and the representations will be on the issue on whether or not the applications
should be treated as urgent. Where the matter is not urgent the registrar will submit it to
the judge in the normal cause of events but without undue delay (R 245).

THE POWERS OF THE JUDGE

 require the deponent of any other person who may assist in the resolution of the matter
to give evidence under oath or otherwise {R 246 (1) (a)}
 require either parties’ legal representatives to appear before him to present other
arguments as the judge may require {R 246 (1) (b)}.
 If the applicant is requesting a provisional order then the judge will grant the
provisional order either in terms of the draft or a variation of that draft if is satisfied that
the papers filed establish a prima facie case. The provisional order is sometimes called
rule nisi. Before granting a provisional order the judge may require applicant to give
security for any loss or damage which may be caused by the order {R 246 (3)}.

R247 sets out the contents of the provisional order.

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

Specific provisions relating to Deceased Estates and Persons under Disability R 248
and R 249.

R250 requires that applications involving the performance of any act in a deeds registry
serve a copy of the application on the registrar of deeds. The service should be done at
least 10 days before the date of set down of the application. The purpose of service is to
allow the registrar of deeds to make a report on the matter if he considers it necessary or
if the court requires such a report.

Motorize v United Family Intl Church & Anor HH-445-12 (Zhou J)

A chamber application is urgent where it cannot wait to be resolved through a court
application. The urgency may arise where, if the matter is not determined urgently, there
is a risk of irreparable harm to an applicant or there is a risk of perverse conduct on the
part of the respondent or its agents which would defeat or render hollow any order which
may subsequently be obtained by the applicant in connection with the dispute. The court
must be satisfied that if the matter is not heard urgently substantial injustice would result
to the applicant

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Application for contribution towards costs.

 This is a court application where one spouse may obtain contribution towards his or her
costs from the other spouse to enable him or her to institute or defend divorce or other
matrimonial proceedings. In practice it is very rare for a husband to be the applicant.
 The rationale for the application is because of the reciprocal duty to support that the
spouses owe to each other.
The applicant must establish the following: -

1. that she does not have the necessary means to find the proceedings
2. that her spouse is able to make the contribution
3. that she has a reasonable prospect of success to the claim if she is the plaintiff or
defense if she is the defendant. If the applicant has movable property which she might
reasonably be expected to sell then she will not normally be entitled to the contribution.

See Landry v Landry 1970 RLR 134

Ansell v Ansell 1980 ZLR 416

The applicant applied by notice of motion to the court for an order of maintenance
pendente lite at the rate of $200 per month, and for contribution to her costs of bringing
divorce proceedings on the ground of cruelty. The respondent opposed this application
and raised a counter-claim for divorce on the ground of cruelty.

Held: Where the parties are applying for maintenance pendente lite or a contribution
towards costs, or opposing the same, they should at least produce documentary evidence
of their incomes. A mere assertion of income is insufficient.
Where an applicant has movable property which might reasonably be expected to sell,
then the applicant will not normally be entitled to a contribution to costs.
The applicant must also show that they have a reasonable prospect of success. If the
applicant is the plaintiff, they must show a prima facie case.

As to when the court will say the applicant should sell assets to the court will take into
account the relevant financial position of both spouses and then make a determination of
what is reasonable and just to the circumstances. In the event that both spouses’ financial
position is about equal but one party is possessed of considerably more assets than the
other then it will be inequitable for the court to compel the spouse with less assets to
exhaust the modest asset in order to finance the litigation.

Chinyamakobvu v Chinyamakobvu HH-181-14

Mawadze J

The requirements for an order for contribution towards costs are: (a) there must be a
subsisting marriage; (b) the suit in action must be a matrimonial one; (c) the applicant
must have reasonable prospects of success; (d) the applicant is not on a financial position

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to bring or to defend the action without the contribution from the other spouse and (e) the
other spouse is able to provide the applicant with this contribution. Items (d) and (e)
above should be considered conjunctively: for an award to be made it should not only be
shown that the applicant lacks financial means to bring or defend an action without
assistance from a spouse, but also that other spouse has the financial means to pay for
such contribution

Jones v Jones HB-144-12

(Cheda J)

All costs, unless expressly otherwise enacted, are in the discretion of the judge.
However, that discretion must be judicially exercised. In our law a wife is entitled to
demand a contribution of costs from her husband towards a matrimonial action. The
success of that demand largely depends on the prospects of success of her claim. The
wife must show that she has a reasonable prospect of success, but it is not necessary for
her to convince the court that there is a balance of probabilities in her favour. Our legal
system is geared towards assisting those who are financially less privileged to access
financial assistance in order for them to prosecute their claims or defend such claims.
However, the courts should apply a strict means test in order to determine some
reasonable prospects of success. In as much as a wife is entitled to be adequately funded
by her husband in order to prosecute her claim, factors like her own financial status
should be taken into consideration. The fact that the husband may be wealthy would not
and cannot entitle the wife to lavish spending or at the worst, destroy her husband’s
financial nest while hers is being costly built. The applicant is expected to be honest with
the court. Any litigant who chooses to mislead the court by his or her conduct must reap
the fruits of such deceit.

Barras v Barras 1978 RLR 384

In this matter the respondent sued the applicant for a decree of divorce. The applicant
opposed the granting of any such decree and in turn is counter-claiming for a decree of
judicial separation. The trial action proceeded to the stage when pleadings were closed
and the pre-trial conference had been held. The applicant now applied on notice of
motion for maintenance pendente lite and a contribution towards the costs of the trial
action. She claimed $200 a month as maintenance pendente lite. The respondent tendered
$75 a month. She also claimed $900 as a contribution towards her costs.

Held- In considering an application by the wife for maintenance pendente lite the court
has to make a value judgment based on the income and assets of the respective parties in
an endeavor to arrive at a figure which will enable the wife to maintain a standard of
living reasonably comparable to the standard that she maintained when she lived with her
husband and which figure is within the husband’s means.
The same principles applicable to granting a wife maintenance pendente lite apply to a
contribution towards her costs. It is proper to take into account the relative assets
possessed by both parties arriving at a conclusion where it is apparent that both parties

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individually have the necessary funds to pay the costs. The court must look at the means
of both parties and try to determine what is reasonable and just.

Muzondo v Muzondo HH 247/83

The Procedure

It is a court application and includes supporting affidavits. The court may award such a
sum as it considers necessary to enable her to place her case adequately before the court.
The court may order stay of proceedings until the contribution has been paid. The order
for contribution can be enforced by the usual means for enforcing the judgment for
payment of money. The costs of the application for contribution towards costs are
generally costs in the cause:

Application for Maintenance pendente lite

This is where one spouse may apply for an interim order for amendments against another
spouse or herself or himself of the children during the course of divorce or other
matrimonial proceedings and pending the making of a maintenance order for those
proceedings. The applicant is the wife. The basis of the application is the reciprocal duty
of support of spouse and as parents to children.
The basis for the application is the reciprocal duty of support of spouse and as parents to
children.

What does the applicant have to show to succeed?

(i) that she and her children have a right to support. The respondent is legally obligated
to support the children.
(ii) She and the children are not being maintained.
(iii) The respondent is in a position to maintain the applicant and the children. He has
the financial means to support.
(iv)She has reasonable choice of success in the main action.

Procedure

It’s a court application supported by affidavits and the list of expenses is to be attached
on your affidavits. This application is combined with application for contribution towards
costs but it does not necessarily mean that if the former is granted the later will be
granted because one is lump sum payment and the other is a recurring contribution
(maintenance). Usually the respondent with means will have a recurring obligation.

The applicant and the children are entitled to be maintained at a comparable standard to
the standard they were enjoying while living with the respondent provided it is within the
respondent’s means.
Barras v Barras (supra)

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Daines v Daines and Another (1980) ZLR 141

The plaintiff instituted action proceedings against the first defendant for a decree of
divorce on the grounds of his adultery with the second defendant, alternatively on the
grounds of cruelty, for custody of the remaining child of the marriage-the other now
being a major-and for maintenance for herself in the sum of $300 per month. She also
claimed damages against the second respondent in the sum of $4000 for her adultery with
the first defendant.

Unlike maintenance granted to an applicant who is still married to the respondent and
who is entitled to be maintained as his wife, the quantum of maintenance granted to a
wife on divorce need not necessarily be such as to enable her to live at the same standard
as she enjoyed during the marriage.

Application for Custody or Access pendente lite

This is where the applicant is applying for an interim order of custody or access of the
minor children pending the final determination of the matrimonial mater. The basis of
the decision is the best interests of the children. The court usually avoids unnecessary
changes of custody meaning that the parent who has de facto custody will remain with
the children until the matter is finalized. The application can be combined with
application for contribution towards costs and maintenance pendente lite.

Application for an urgent interdict.

An interdict is an order prohibiting or restraining someone from doing a particular act or

ordering someone to do a positive act to remedy an unlawful state of affairs for which
he/she/it is responsible.

Northern Farming (Pvt) Ltd v Vegra Merchants (Pvt) Ltd & Anor HH-328-

(Mafusire J)

(Judgment delivered 3 October 2013

The applicant had sold maize to the first respondent on a credit term arrangement. The
first respondent had failed to pay in full, having paid about one third of what was due.
The credit term facility had an arbitration clause. At the time of the hearing the arbitration
proceedings had just been initiated. The applicant alleged that the first respondent was
disposing of the maize to third parties and receiving payment but was refusing or failing
to pay it. The second respondent was one of the third parties. It admitted owing money to
the first respondent in terms of their own contractual arrangements. The applicant sought
what it termed an anti-dissipation interdict to restrain the first respondent from disposing
of the maize held for it by another company pending the determination of its claim by the
arbitrator. The applicant said it feared that if the first respondent was not so restrained

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any award in its favour by the arbitrator would be a brutum fulmen because there would
be nothing left to levy execution on, given that the first respondent was indigent.

HELD: (1) An anti-dissipation interdict is just an ordinary interdict to restrain the

disposal of assets. The name of the interdict and its essential content have been the
subject of some debate. It has been variously called a Mareva-type interdict (after the
term used in English law), an interdict in securitatem debiti and an anti dissipation
interdict. The interdict prevents the respondent from dealing freely with his assets but
grants the applicant no preferential rights over those assets. In some cases, the interdict is
not sought to prevent the respondent from dissipating his assets, but rather from
preserving them so well that the applicant cannot get his hands on them. The normal
grounds for the grant of an interim interdict must be shown. The purpose of such an
interdict is to prevent the respondent from freely dealing with his own property to which
the applicant lays no claim, because justice may require such restriction in cases where
the respondent is shown to be acting mala fide with the intention of preventing execution
in respect of the applicant’s claim, even though there would not normally be any
justification to compel a respondent to regulate his bona fide expenditure so as to retain
funds in his patrimony for the payment of claims. The purpose of the interdict is not to be
a substitute for the claim but to reinforce it – to render it more effective. And the question
whether the claim is a satisfactory remedy in the absence of an interdict would normally
answer itself. In an application for this type of interdict, one of the major considerations
is whether the respondent would still have sufficient property to satisfy any judgment that
may eventually be given against him and whether the respondent’s continued disposal of
his assets is deliberately intended to frustrate any such judgment. In this case, the
evidence was that, in the face of a demand for payment, and in the face of its claim
having been submitted for arbitration, the respondent was still disposing of the maize but
without remitting anything to the applicant. Not only was arbitration not a remedy to
what the applicant feared, but also that there existed no other satisfactory remedy, the
first respondent having no source other than the maize from which to satisfy its
contractual obligations to the applicant.

(2) Although arbitration proceedings had been instituted, it was permissible, in terms of
article 9 of the First Schedule to the Arbitration Act [Chapter 7:15], for the applicant to
seek an interim measure of protection from the High Court where the arbitral tribunal has
not yet been appointed and the matter is urgent. Such measures include an order for the
preservation, interim custody or sale of any goods which are the subject-matter of the
dispute, an interdict or other interim remedy and any other order to ensure that any award
which may be made in the arbitral proceedings is not rendered ineffectual.

Classification of Interdicts

There are two ways of classifying interdicts

(i) It looks at what the interdict requires someone to do.
(a) prohibitory – the interdict prohibiting the person from doing wrong.
(b) mandatory interdict – interdict which orders someone to act to remedy a wrongful
state of affairs for which he/she is responsible.

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(c)restitutory – interdict which orders the person to restore possession of property to a

person who is unlawfully deprived of his property.

(ii) It is classified in terms of whether the order is temporary or final

(a) a final interdict is order to secure a permanent end to an unlawful state of affairs.
(b) temporary/interlocutory interdict is an order granted pendente lite in order to secure
the rights of the applicant pending the outcome of either contemplated or existing
litigation.

Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd & Anor S-43-13

(Garwe JA, Malaba DCJ and Ziyambi JA concurring)

(Judgment delivered 26 September 2013)

Generally, a court should not grant interim relief which is similar to or has the same
effect as the final relief prayed for. Interim relief should be confined to interim measures
necessary to protect any rights that stand to be confirmed or discharged, as the case may
be, on the return date. The practice of seeking interim relief, which is exactly the same as
the substantive relief sued for and which has the same effect, defeats the whole object of
interim protection. In effect, a litigant who seeks relief in this manner obtains final relief
without proving his case, because interim relief is normally granted on the mere showing
of a prima facie case. Whilst no hard and fast rule can be laid down, there may well be
cases where a court would be justified in holding, in such a situation, that the application
is not urgent and that it should be dealt with as an ordinary court application. There may
also be cases where the court itself, as it is empowered to do, may amend the relief
sought in order to make it clear that what is granted is interim protection, whilst the final
order sought would be the subject of argument on the return date.

Requirements for final interdict

(a) The applicant should establish a clear right clearly established in law
(b) Applicant should show that he has either suffered actual injury or has a reasonable
apprehension of injury.
(c) Applicant should show that there is no other ordinary remedy by which he or she can
be protected in the same way as by an interdict.

See Setlogelo v Setlogelo 1914 AD 221 at 227

Requirements for Interlocutory Interdict

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

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Flame Lily Investment Co (Pvt) Ltd v Zimbabwe Salvage and Anor 1980 ZLR 378

In an application for a temporary interdict pendente lite the applicant must show;
1) A clear right on his or her part.
2) Actual or reasonably apprehended injury.
3) No other remedy which he can be protected with the same results.
If the applicant’s rights are not clear, the requisites are different. The applicant must
show:
1) A right which, though prima facie established is open to some doubt.
2) A well-grounded apprehension of irreparable injury; and
3) The absence of an ordinary remedy.
In considering the application, the court will consider the prejudice to the applicant is
withheld, against the prejudice to the respondent if it is granted. This is called the balance
of convenience.

The Flame Lily case effectively creates four requirements for a temporary interdict, the
fourth one being the balance of convenience.

Neptune (Pvt) Ltd Venture Enterprises HH 127/89

N.B Authorities are the same as in final interdict and also Chikore v Nyamukapa & Ors
HH 267/90

Mutarisi v United Family Intl Church & Anor HH-445-12

(Zhou J)

The requirements for an interim or temporary interdict are: (a) That the right which is the
subject matter of the main action and which applicant seeks to protect by means of
interim relief is clear or, if not clear, is prima facie established, though open to some
doubt; (b) That, if the right is only prima facie established, there is a well-grounded
apprehension of irreparable harm to the applicant if the interim relief is not granted and
he ultimately succeeds in establishing his right; (c) The balance of convenience favours
the granting of interim relief; and (d) That the applicant has no other satisfactory remedy.
Where a clear right is established an applicant for an interim interdict need not show that
he will suffer irreparable harm if the interdict is not granted. The applicant merely has to
show that an injury has been committed or that there is a reasonable apprehension that an
injury will be committed. The words “clear” and “prima facie” in the context of interdicts
relate to the degree of proof required to establish the right alleged. Whether or not an
applicant has a right is a matter of substantive law; whether that right is clearly or only
prima facie established is a question of evidence. The court has a general discretion to
grant or reject a request for an interdict even in circumstances where the applicant has
established the requirements for interim relief discussed above. The discretion must, of
course, be exercised judicially, having regard to all the facts and circumstances of the
case. While a draft order is only a draft and does not bind the court, it must be based on
the case pleaded. It is not a mere formality for applicants to file draft orders in application

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proceedings. The draft order must properly assist the court as to the relief being sought by
an applicant.

Nyambi & Ors v Min of Local Govt & Anor HH-324-12

Zhou J

The requirements for an interim interdict are well settled, being these: (1) that the right
which is sought to be protected is clear; or (2) (a) if it is not clear, it is prima facie
established, though open to some doubt; and (b) there is a well-grounded apprehension of
irreparable harm if interim relief is not granted and the applicant ultimately succeeds in
establishing his right; (3) that the balance of convenience favours the granting of interim
relief; and (4) the absence of any other satisfactory remedy. Where a clear right is
proved, then the applicant interdict need not show that he will suffer irreparable harm if
the interdict is not granted. The applicant merely has to show that an injury has been
committed or that there is a reasonable apprehension that an injury will be committed.
The words “clear” and “prima facie” in the context of interdicts relate to the degree of
proof required to establish the right and should strictly not be used or interpreted to
qualify “right” at all. The existence of a right is a matter of substantive law; whether that
right is clearly or only prima facie established is a matter of evidence. The court has a
general and overriding discretion whether to grant or refuse an application for an interim
interdict. That discretion exists even if the applicant has established all the requisites for
the interim relief. The discretion must be exercised judicially, taking into account the
circumstances of the case. Regarding the balance of convenience, the court is enjoined to
weigh the prejudice to the applicant if the interim interdict is refused against the prejudice
to the respondent if it is granted.

For a final interdict in so far as the right is concerned the interdict should not be granted
on application proceedings unless the facts as stated by the defendant together with the
admitted facts in the applicant’s affidavit justify the granting of such an order.

See Stellenbosch Farmers v Stellenvale Winery 1957 (4) SA 234 – (interlocutory

interdict).
See Webster v Mitchell 1948 (1) SA 1186 WLD
The applicant was seeking an order restraining the respondent from alienating, dealing
with and racing a race horse pending the action to be instituted by him. The applicant
claimed ownership of the horse and the respondent was disputing the claim. The
applicant had allowed the horse to be registered in the name of the first respondent and
later on the respondent’s wife.

Held: The right to be set out by an applicant for a temporary interdict need to be shown
by a balance of probabilities. If it is prima facie established though open to some doubt
that is enough pg 1189. The proper manner of approach is to take the facts as set out by
the applicant together with any facts set out by the respondent which the applicant cannot
dispute and consider whether having regard to the inherent probabilities the applicant
could on those facts obtain final relief at a trial. The facts set out in contradiction by the

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respondent should then be considered. If serious doubt is thrown on the case of the
applicant he could not succeed in obtaining temporary relief for his right prima facie
established may only be open to “some doubt”.

Flame lily Investment (Pvt) Ltd v Zim Salvage and Anor ZLR 378.(in detail)
The applicant sold certain mining claims to the first respondent for $25 000 payable by a
deposit of $10 000 and in 3 months installments of $5000. The agreement stipulated that
the applicant was entitled to cancel the agreement notice in the event of the first
respondent’s fault. First respondent refused to accept cancellation. First respondent
defaulted and the applicant gave notice of cancellation and asked first respondent to
vacate mining claims. First respondent refused to accept cancellation and alleged
fraudulent misrepresentation. First respondent said it was prepared to abide by the
contract. The applicant sought a temporary interdict to restrain the respondent’s from
continuing with mining operations pending the determination of its claims for
cancellation of contract.

Held: The court set out the requirements for a final and temporary interdict. The court
was in line with Setlogelo case. The applicant had shown a prima facie right and met the
other requirement for a temporary interdict. The court also held that since the balance of
convenience issue had not been raised by the respondent, the applicant was entitled to the
relief sought.

On the issue of injury (apprehension or actual) there are two cases which emphasizes that
the injury should be of a continuing nature. If it’s a one off event then the remedy for the
applicant is remedies for injury suffered and not an interdict.

See Performing Right Society (Ltd) v Berman & Anor 1966 RLR 209
The plaintiff sued the defendant claiming an interdict for infringement of copyright and
damages. The defendant had caused or authorized the performance of the plaintiff’s
musical works at a night club. The night club was subsequently closed when the liquor
licensing board refused to renew its license.

Held: this injury was of a continuing nature because the night club was now closed.

Held: the interdict sought by the plaintiff was a normal remedy for infringement where
the plaintiff’s rights and the breach of them are clearly established where the defendant
does not claim to be entitled to perform the musical works without a licence from the
plaintiff and where the defendant was not given an undertaking not to repeat the
infringement. For the plaintiff to succeed the circumstances should not be such that there
is no likelihood for future infringement occurring. The plaintiff foes not have to provide a
positive proof of likelihood of repetition of infringement.

Held: the defendants were likely to repeat the infringement and the interlocutory interdict
was granted.

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Performing Rights Society v Butcher & Anor 1972 (2) RLR 362
The facts were almost similar to the above except that it was an application and the
second respondent was insolvent.

Held: The facts that the second respondent is now an unrehabilitated insolvent is no
reason for thinking that he will not commit similar future infringements nor is it an
obstacle to the granting of an interdict restraining him form indulging in such behavior
pg. 365-66.

Remedy as a Requirement

See Reserve Bank of Rhodesia v Rhodesia Railways 1966 RLR 541

The applicant sought an interdict preventing the respondent from carrying any good in
transit from Zambia and vice versa until or unless the respondent made certain
arrangements about the receipt of moneys to which the respondent was entitled for
carriage of the goods. The proceedings were brought by petition (chamber application).
A rule nisi was granted but a temporary interdict was refused pending the return day.
Three days after the rule nisi was granted the Minister of Transport made an order under
Emergency Powers (control of goods and services) Reg. 1966 which achieved the same
objections as would have been achieved by an interdict. On the return date the respondent
argued that an interdict was no longer necessary because an alternative remedy was
available to the applicant.

Held: The interdict should not be granted because of the prerequisites to the granting of
an interdict that is the absence of similar protection by an ordinary remedy was not
satisfied. The court was also of the view that the Minister’s order was a more effective
remedy than the interdict and that the interdict sought might be an embarrassing conflict
between the Minister’s order. The application for an interdict was refused.

See Coleman v Bristow 1976 (1) RLR 97

An application for an interdict restraining the respondent form exercising certain hunting
rights on the applicant’s farm without the applicant’s permission. The parties had entered
into an agreement permitting the hunting but a dispute had arisen as to the number of
animals which could be shot. The applicant was granted a rule nisi which operated as a
temporary interdict. The applicant argued that he was entitled to control the respondent’s
operations by virtue of a provision in the Parks and Wildlife Act of 1975. The parties had
entered into their agreement prior to the enactment of the Act. The respondent argued that
the applicant had the following alternative remedies:
(i) to apply to the Minister to act in terms of s66 of the Parks and Wildlife Act.
(ii) A claim for damages.
(iii) Criminal prosecution.

Held: these were not adequate remedies in terms of applying to the Minister the court
noted the minister had not acted and it was not possible to know whether the applicant
would be successful in moving the minister to act. In respect to claiming of damages and

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prosecution the court noted that these claims would not prohibit respondent from
infringing applicant’s rights.

Held: An attempt to prosecution has been unsuccessful. The interdict was granted.

Rights Requirements

See Gool v Minister of Justice and Anor 1955 (2) SA 682

It confirmed Webster v Mitchell
See Zim Music Rights Association v ZBC HH 468/88
See Georgias v Zambezi Safari Ranch (Pvt) Ltd HH 71/90

On the issue of balance of convenience, the court will look at who is more likely to be
inconvenienced by the granting of the interdict. If the respondent is to be inconvenienced
more than applicant the interdict will not be granted.

Procedures

(i) If applying for final interdict use court application and if its extremely urgent do it ex
parte.
(ii) With interlocutory interdict use court application and if extremely urgent use chamber
application ex parte.
(iii) If you do it ex parte you do not get a final order but a provisional order (temporary
interdict) operates as a temporary interdict.

Zim Case: Application Of Interdict By Way Of Exparte Application

Blue Bull Inc V Lennard Clothing Manufacturing (Pvt) Ltd 1984 (1) ZLR 49

For an application of an interdict to be brought by way of ex parte petition without notice

it is necessary that the matter be one of urgency or in which irreparable harm may be
done to the petitioner. The criteria for granting of an interdict are well established and are

a) A clear right.
b) Injury actually suffered or reasonably apprehended.
c) The absence of similar protection by any other ordinary remedy.

Test 2 1/6/04 2-4 pm Tuesday (optional)

Special pleas and interdicts

Application of interdict by way of ex parte application

Application for Declaratory orders

Masuku v Delta Beverages HB-172-12

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Cheda J

The applicant brought an application against her former employer, which was cited as
“Delta Beverages”. She sought a declaratory order to the effect that the freezing of her
salary and her later dismissal were null and void and that she should be reinstated in her
position. She alleged that she had not been afforded a hearing in terms of the company’s
code of conduct or in terms of the principles of natural justice. The company raised three
objections in limine: (a) that the applicant had cited a non-existent entity, the company’s
correct name being “Delta Beverages (Pvt) Ltd)”; (b) that the high court had no
jurisdiction, as the application was in reality one for review; and (c) that the matter was
prescribed.

HELD (1) generally, proceedings against a non-existent entity are void ab initio and thus
a nullity. However, where there is an entity which through some error or omission is not
cited accurately, but where the entity is pointed out with sufficient accuracy, the
summons would not be defective. The respondent was a well known blue chip company
whose fleet of cars are all over the nation’s roads. Its commercial advertisements needed
no introduction. The applicant may have technically erred in her description, but
described the respondent with sufficient clarity, to the extent of eliminating any mistake,
either legal or factual, about the respondent’s identity.
(2) There is a clear distinction between an application for a declaratory order and an
application for review. Although the application was presented as one for a declaratory
order, its contents were those of an application for review. In such an application, the
applicant seeks a review arising out of the irregularity of the procedure adopted by a
tribunal or board. This what the applicant was seeking. The draft order was clearly not a
declaratory order, but relief obtainable on review. As the application was in fact one for
review, the correct forum for its determination was the Labor Court, as provided for
under s 89(6) of the Labor Act [Chapter 28:01].
(1) In any event, the claim was prescribed, as the debt arose over three years before the
respondent was

Mpukuta v Motor Insurance Pool & Ors HB-25-12

Ndou J

It is not the business of the courts to dispense legal advice or express opinions on abstract
points. The courts exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce upon abstract questions, or to advise upon
differing contentions, however important. It is therefore a pre-requisite to the grant of
declaratory relief that the applicant must have some existing, future or contingent right
that would be affected by the order of the court. The applicant must be an interested
person, in the sense of having a direct and substantial interest in the subject-matter of the
suit which could be prejudicially affected by the judgment of the court. The interest must
relate to an existing, future or contingent right. The court will not decide abstract,
academic or hypothetical questions unrelated to such interest. This is the first stage in the
determination by the court. At the second stage of the enquiry, it is incumbent upon the

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court to decide whether or not the case in question is a proper one for the exercise of its
discretion under s 14 of the High Court Act [Chapter 7:06]. In this regard, some tangible
and justifiable advantage in relation to the applicant’s position with reference to an
existing, future or contingent legal right or obligation must appear to flow from the grant
of the declaratory order. A matter that does not present a live controversy having
practical consequences is not justiciable.

Anton Piller orders

An Anton Piller order is a legal remedy available within our legal system but which is
relatively unknown to most people. Anton Piller orders are applications made to court in
cases where a person (the applicant) who wants to institute legal proceedings against
someone else (the respondent), has reason to believe that the respondent is in possession
of vital evidence which he or she could easily destroy or hide if they became aware of the
legal proceedings. The applicant can apply to the court and ask for the evidence to be
preserved and to be delivered to the sheriff of the court. The application is generally
made in secret and without notice to the other party (the respondent). Because this type of
application is so invasive and violates one legal rights it has been called “draconian” in
its application. It certainly offends against the “audi alteram partem”.

The most common area when Anton Piller orders are likely to be used is in the business
and commercial environment. It could involve restraint of trade agreements, intellectual
property matters, trade secrets, company data, client lists, although it’s not restricted to
such matters. The case which remains the benchmark for the South African legal position
on Anton Piller orders, lies in the Supreme Court of Appeal decision of Universal City
Studios Inc and Others v Network Video (Pty) Ltd 1989(2) SA 734. In passing judgment
in that case, the judges said that Anton Piller orders

“have become a necessary evil in certain circumstances and will remain so until a
successful constitutional challenge is brought. What is furthermore clear is that by its
very nature it violates the rights of persons who are affected by its terms”.

The courts generally adopt a cautious and circumspect approach to such an application
and if the relief is granted, stringent safeguards should be built into the order”.” Hence
the courts (who have a discretion in such cases), will not readily grant such an application
unless it is properly satisfied that the applicant has a cause of action against the
respondent, which he intends to pursue.

The applicant must also specify exactly what the nature of the evidence is for example he
must specify the documents or things, which are in the possession of the respondent. The
applicant will also need to convince the court that he or she has a real and well-founded
apprehension that the evidence may be hidden or destroyed. The documents are then
handed to the sheriff of the court for preservation.

Stanbic Nominees (Pvt) Ltd & Anor v Remo Invstm Brokers (Pvt) Ltd HH-354-13

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(Mtshiya J)

(Judgment delivered 16 October 2013)

The respondent obtained a loan from a company known as Interfin and pledged its shares
as security. The respondent repaid the loan in full and then demanded the return from
Interfin of its shares and certificates. The shares and certificates were not returned. The
respondent then filed an urgent ex parte application for an Anton Pillar order. A
provisional order granted. The deputy sheriff was then instructed to execute the order
against those holding the shares and certificates. An attempt to execute on the applicants
failed because the applicants argued that the order was not binding on them since they
were not cited in the ex parte urgent application. They sought a declaratory order to that
effect. They argued that they were not obliged to obey an order in which they were not
cited. All they wanted was for the court to make a determination on whether or not the
order granted to the respondent was binding on them when they were not cited as parties
in the matter. Since the order was one ad factum praestandum (that is an order to do,
abstain from doing a particular act or deliver a thing), it would was imperative, in order
for them to be bound by the orders obtained and sought to be enforced against them, that
they be cited therein.

HELD An Anton Piller order is a modern legal remedy, devised to cater for modern
problems in the prosecution of civil actions. The procedure allows a party to make an ex
parte application, without notice to the other side, for the attachment and removal of
documents or other evidence. An applicant for an Anton Piller order must prima facie
establish: (a) that he has a cause of action against the respondent which he intends to
pursue; (b) that the respondent has in his possession specific and specified documents or
things which constitute vital evidence in substantiation of the applicant’s cause of action,
but in respect of which the applicant cannot claim a real or personal right; and (c) that
there is a real and well-founded apprehension that this evidence may be hidden or
destroyed or in some manner spirited away by the time the case comes to trial or to the
stage of discovery. The order should be directed to a specific respondent, to whom notice
is being denied until the search is effected. That is what brings about a need for the court
to proceed with caution and impose safeguards to protect the rights of the party against
whom the relief is sought. Such a party (respondent) must be known and it can only be
known through citation as a party to the proceeding(s). The respondent in casu, as
contained in its founding affidavit, knew who it wanted to proceed against but decided to
bring into the body of the order the “parties to be searched”. The respondent knew that
the premises belonged to the applicants. It could not be denied that the effect(s) of the
order had an adverse impact on the applicants’ rights and interests (i.e. present and
future). Accordingly, execution against them when they were not parties to the matter had
no place in our law. This was not an academic exercise on the applicants’ part. They had
a right to have the legal position pronounced in terms of the declaratory order they
sought.

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Provisional sentence (0 4)

It is a procedure which is designed to enable the plaintiff who sues on a liquid document
to obtain relief without proceeding to trial. The purpose was clearly explained in

In Lesotho Diamond Works (1973) (Pvt) Ltd v Lury 1975 (2) SA 140. The plaintiff sued
the defendant for provisional sentence on two cheques backdated 25/01/94 for R2000 and
£600 respectively. Both cheques had been dishonored because the defendant had stopped
payment. The defendant opposed the provisional sentence proceedings on two grounds:
(i) the plaintiff being a peregrine had not furnished him with security
(ii) the diamonds that he purchased from the plaintiff for 5 400 would have been worth
R11 500 if they were flawless but because they were not flawless they were only worth
R8 745 thus giving rise to a counter claim of R2 950. The plaintiff did not deny the
allegation that the diamond was flawless and did not reply to the defendant’s opposing
affidavit. The plaintiff’s counsel contented reply was unnecessary because they were no
indications that that counter claim arose from the transaction to which the cheques related
and the validity of the cheques had not been challenged. Therefore, he defendant had no
probability of success in his counterclaim.

Held: The two transactions were connected and this could be deduced from the
defendants’ affidavit. On the issue whether the defendant was limited in his defense to
challenging the validity of the cheques or he could establish the existence of a larger
challenge i.e challenge the transactions on which the instruments formed a part. The court
relied on Memel Board of Executors v Lardinar 1930 OPD 197, the procedural methods
of provisional sentences is no magic want where - with the disarm prospective defendants
or dispel all opposition thereto but it is a well recognized long standing and often used
mode of obtaining speedy relief where the plaintiff is armed with a liquid document”.
The purpose of provisional sentence is to avoid the “more expensive, cumbersome and
often dilatory machinery of an illiquid action.” P. 144. The conclusion therefore
defendant was entitled to raise the counter-claim as a defense and also the defendant had
established a probability of success.

Al Shams Global BVI Ltd v Equity Properties (Pvt) Ltd HH-237-13

Zhou J

A summons for provisional sentence is issued where a plaintiff is the holder of a valid
acknowledgment in writing of a debt or a liquid document. The summons may be in one
or the other of two forms, Form No. 4 or Form No.5. It must call upon the defendant to
satisfy the plaintiff’s claim, or in default to appear before the court at the hour and on the
day and at the place stated in the summons to show why he has not done so, and to
acknowledge or deny the signature to the said liquid document or the validity of the
claim. Rule 25(1) of the High Court rules provides that the defendant may file a notice of
opposition and supporting affidavit prior to the date stated in the summons; the provision
is not couched in peremptory terms. It therefore means that the defendant has a choice as

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to whether or not to file a notice of opposition and opposing affidavit. Rule 25 (2)
provides that order 32 shall apply, mutatis mutandis, to the service of a notice of
opposition and the filing and service of answering or further affidavits which may be
filed by the parties subsequent to the filing of the opposing affidavit. Where a notice of
opposition is filed, this does not mean that the matter will wait to be placed on the
opposed roll, although the filing of further affidavits after the opposing affidavit are to be
in terms of the provisions of order 32.
It has previously been held that the practice of the high court is to determine provisional
sentence matters on the date appearing on the face of the summons. Issues of
convenience to the court, which is essentially sitting as an unopposed court, can
effectively be overcome by the presiding judge standing the matter down to the end of the
roll for counsel to make their submission to court. However, r 223 (1) (a) provides for the
setting down of uncontested cases for provisional sentence on the roll for unopposed
matters. There is no provision in the rules for contested cases for provisional sentence to
be set down on the same roll. The setting down of contested cases for provisional
sentence on the “unopposed” roll is, therefore, not in accordance with the provisions of
the Rules. It is not always apparent that the matter is to be opposed, because Forms No. 4
and 5 make no provision for the dies induciae within which the defendant must file a
notice of opposition and opposing affidavits, other than that it should be before the date
of the hearing inserted in the summons. The three courses of action available to the
defendant are (a) to satisfy the claim; or (b) to file opposing affidavits; or (c) to appear in
court on the date stated in the summons to admit or deny the claim. Where a defendant
chooses to appear in court on the date of the hearing to deny liability, it is only then that
the court becomes aware that the matter is contested. But if the plaintiff becomes aware
before the date of hearing that the matter is opposed he should not set it down on the
unopposed roll.

F O Kollberg (Pty) Ltd v Atkinson’s Motors Ltd 1970 (1) SA 660.

The court said, “the purpose of provisional sentence proceedings is to enable the plaintiff
to receive prompt payment without having to wait for the final determination of the
dispute between the parties.” 662.

INTERPLEADER

Interpleader proceedings can be instituted by an applicant who holds property or has

incurred a liability in respect of which there are two or more claimants and these
claimants are making adverse claims. Generally, the parties to interpleader proceedings
are divided into two:

(i) deputy sheriff can institute interpleader proceedings in respect of property attached by
him and a third party alleges that the property is his and not of judgment
(ii) debtor other claimants mean any other person who is holding property or has a
liability for which they are facing adverse claims.

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 Purpose was explained in Bernstein v Visser 1934 CPD 270 @ 272. “interpleader is a
form of procedure whereby a person who is a stakeholder of other custodian of
movable property to which he lays no claim on his own rights but to which two or more
other persons lay claim may secure that they shall fight out their claim among
themselves without putting him to the expense and trouble of an action/actions”. Pg
272-3.

Deputy Sheriff, Harare v Conview Energy (Pvt) Ltd & Anor HH-250-12

(Mathonsi J)

Following a judgment against the judgment debtors, a writ of execution, directing the
deputy sheriff to attach and take into execution movable property belonging to the
judgment debtors, was issued. The deputy sheriff duly placed under attachment certain
items of property, some of which were claimed by the claimant. The claimant filed an
affidavit, alleging that he was the owner of the items. The deputy sheriff instituted
interpleader proceedings in terms of Order 30 of the high court rules 1971. The claimant
did not file any notice of opposition and or opposing affidavit, but was represented by
counsel at the court hearing. There, while conceding that no opposing papers were filed,
counsel argued that the claimant was entitled to be heard as an interested party who had
also submitted an affidavit to the applicant claiming the goods. Held: It happens with
alarming frequency that people who find their goods being attached by the deputy sheriff
merely submit an affidavit and documents to the deputy sheriff laying a claim to such
goods, then sit back and do nothing more. When the deputy sheriff institutes interpleader
proceedings, they do not bother to file opposition; they only surface on the day of
hearing, oblivious of their failure to oppose the interpleader proceedings. The fact that a
claimant has submitted an affidavit to the deputy sheriff claiming the goods placed under
attachment without doing anything more does not confer upon such claimant the right to
appear in court when no notice of opposition and opposing affidavit have been filed.
Where a deputy sheriff has served a court application initiating interpleader proceedings,
that application commands the respondents (the claimant and the judgment creditor) to
file their opposition if any. It also announces to them that, in the event of failure to do so
within the time frame given, the matter will be set down for hearing unopposed and an
automatic bar comes into effect. In casu, due to its failure to file a notice of opposition
and opposing affidavit, the claimant was, in terms of r 233 (3), automatically barred.
Once either the claimant or the judgment creditor fails to file opposition, the matter
becomes unopposed for all intents and purposes and should be set down for hearing on
the unopposed roll.

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Procedure

 Applicant would give the notice to the parties and the notice would state the nature of
the viability, property or claim which is the subject matter of the dispute and it will call
upon the claimants to deliver particulars of the claim in the form of a notice of opposition
with supporting affidavit(s) it should also state that the applicant is applying for the
court’s decision as to his liability or the validity of the respondent’s claim (R 207).
 The applicant would deliver with the notice an affidavit and in that affidavit state:
(i) They claim no interest in the subject matter in dispute other then the charges and
costs.
(ii) That they do not collude with any of the claimants
(iii) That they are willing to deal with or act in regard to the subject matter in dispute as
the court may direct (R 208).
(iv)R 206 gives duties of the applicant in relation to the subject matter pending decision
by the court. If the subject matter is merely the applicant will pay the money to the
Registrar who will hold the money until the matter has been decided {R 206 (1)}.
 Where the subject matter is any other thing capable of delivery the applicant shall
tender delivery of the thing to the registrar or take steps to secure the availability of the
thing in question as the registrar may direct (R 206).
 Where the conflicting claims relates to immovable property the applicant should place
the title deeds of the property available to him in the possession of the registrar and also
give an undertaking to the registrar that he will sign all the documents necessary to effect
transfer of the property as may be directed by the court (R 206 (3).
Once the notice and affidavit have been served on the respondent then the parties will
proceed in the same way as opposed applications (R 209).

Powers of the court {R210 (2)}

If a party is in default and they don’t appear at the hearing of an interpleader the court
will declare that person in default and all other persons claiming under him barred (R210
(1)). In respect of other claimants who are there the court will adjudicate on various
claims after hearing such evidence as it sees fit. If the court decides that it can’t decide
the issue on paper then the court can order that any claimant be made a defendant in an
action already commenced in respect of the subject matter in dispute or if there is no
action concerned the court may order a trial and the court will decide which claimant
shall be the plaintiff and which one should be the defendant.

How does the court make such decisions?

If its property attached by the deputy sheriff and the property was in the possession of the
judgment debtor then the court will usually order the third party who is claiming the
property be the plaintiff because it is assumed that prima facie that the property in
possession of the judgment belongs to the judgment debtor.

See Bruce NO v Josiah Parks and Sons (Pvt) Ltd 1971 (1) RLR 154
Bruce NO v de Rome and Anor HH 109/89

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Greenfield NO v Blignaut 1953 SR 73

It involved an impounded bull. The two parties claimed ownership of the bull and the
court was unable to resolve the matter on papers and ordered matter to go to trial. It failed
to decide who the owner was.

Held: Each party must be a plaintiff as they are. It made a complicated decision that one
party must seek declaration that the bull was his and the other party was to seek a
counter-claim that the bull was his.
If a defendant in an action institutes interpleader proceeding the proceedings will be
stayed until court makes the decision on the interpleader R211.

42 Heads of arguments in the high court and Supreme court

43 Court orders and Judgments in application procedure.

ENFORCEMENT OF JUDGMENTS AND ORDERS

46. Execution

Chikwavira v The Sheriff & Anor HH-357-13

Dube J

The applicant sought to have the sale in execution of his dwelling house set aside. His
grounds were that the sale was improperly conducted and that the property was sold for
an unreasonably low price. With regard to the first ground, he argued that the dates on
which the property was advertised were too close to the date of the sale, resulting in
many people who would have been prospective purchasers failing to come to inspect the
property and thus did not take part in the auction. The only person that inspected the
property and subsequently bought it was the second respondent, who was the only bidder.
He further argued that the property was inadequately and misleadingly described in the
advertisement. Among other things, the number of bedrooms was understated; a second
five-bedroom house on the property was described simply as a “cottage”; there was no
mention of the fact that there were two boreholes and two water tanks in the property;
and there was no mention of a large fowl run.

HELD:

(1) The courts will not lightly set aside a judicial sale which has been confirmed as this
may discourage people from participating in judicial sales. The onus rests on the
applicant to show that the sale was improperly conducted or that the property was sold at
an unreasonably low price or any other ground.

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(2) Rule 352 of the high court rules places a duty on the sheriff to advertise the property
at least once in the Gazette and once in a newspaper circulating in the district in which
the property is situated. The sale was advertised on three separate occasions over a period
of about 10 days. The rule does not specify when the advertisements must be made in
relation to the sale date. It places a duty on the sheriff to advertise only once. That was
done.

(3) It is implicit from r 352 that the sale must be properly advertised. An advertisement
which inadequately describes the property is no advertisement at all. It will fail to comply
with the Sheriff’s mandatory obligation. The purpose of properly describing the property
is not merely to identify it. It is also to inform the public of what which is being sold,
with the aim of attracting the interest of potential purchasers to the auction, for it is in the
interests of the judgment debtor, and probably in the interests of creditors, that the
property to be sold should obtain as high a price as possible. In this case, a number of
relevant features of the property were omitted. The size and improvements on a property
have a bearing on the value of the property. In these days of erratic water supplies, it is
important to inform interested parties of the existence of supplementary sources and
substitute water supplies in the form of boreholes. The existence of two boreholes on a
property is likely to generate more interest in the property than where there is one
borehole. The objective of informing the public of what was being sold with a view to
attracting the interest of potential purchasers to the auction was not achieved. The
provisions of r 352 are mandatory; a failure by the sheriff to describe the property
adequately or properly invalidates the sale. The sale should therefore be set aside.

(4) It was, accordingly, unnecessary to decide whether the price realized was
unreasonably low.

APPLICATION FOR STAY OF EXECUTION

CHIBANDA V KING 1983 (1) ZLR

In an application for stay of execution of judgment of the court, it is not enough for the
applicant merely to allege hardship. He must satisfy the court that he may suffer
irreparable harm or prejudice if execution is granted. One way to do it this would be to
adduce evidence that he now has sufficient means to make payment on the due date but
he must have a strong case to present to the court. It must also be borne in mind that if the
court were to extend mercy, it would be doing it at the expense of a litigant who has
already established in court his right and title to what is being claimed. Such mercy
should rather be sought in the action itself before judgment is given, not afterwards.

Applications for execution pending appeal.

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It should be stressed that once an appeal is noted, there is an automatic suspension of

execution of the judgment which is being appealed against. The judgment creditor, if he
or she wishes to execute nonetheless, will have to show good cause why execution
pending appeal should take place.

Civil imprisonment

This is a very drastic remedy which should be used as a last resort during the enforcement
of a judgment. The process is governed by Order 41 where r 368 provides the following;

(1) Where the sheriff or his deputy has made a return of nulla bona or not sufficient
goods on a writ of execution the judgment creditor may cause to be issued a summons
commanding the judgment debtor to pay the amount of the judgment and, unless he does
so, to show cause at a time and place stated why an order for personal attachment shall
not be decreed against him. This is done through summons which must be in Form No.46
The court has to be satisfied before giving an order for personal attachment since this is a
drastic remedy hence it conducts an inquiry in terms of r 370. During this inquiry the
court shall;

(a) Call upon the judgment debtor to adduce evidence as to his financial position; and
(b) Receive any evidence that may be adduced by or on behalf of the judgment debtor or
the judgment creditor in regard to the judgment debtor’s financial position and his
ability to pay the amount due, whether such evidence is adduced orally or by affidavit
or in any other manner that the court considers appropriate; and
(c) Where evidence is adduced orally, permit the cross examination of the witness
concerned
The court then weighs the ability of the judgment debtor to pay the amount due, taking
regard of the following;

(a) The nature and extent of his income and assets; and
(b) The amounts needed by him for his necessary expenses and those of his dependants;
and
(c) Any amounts needed by him to make payments in terms of any court order or
agreement; and
(d) If he is unemployed, the reason thereof; and
(e) If he is employed, whether a garnishee order would be appropriate, in which event
the court may adjourn the inquiry to enable proceedings for such an order to be
instituted in terms of order 42.

From this information the court is able to ascertain whether the judgment debtor’s failure
to pay the amount due is willful. If it is willful, then an order for personal attachment can
be given.

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The order for imprisonment of a judgment debtor shall be for a period not exceeding
three months unless there are special circumstances which call for a longer period. See R
370 C

A writ for personal attachment of a judgment debtor shall be signed by the registrar and
addressed to the sheriff or his deputy, being in Form No. 47. (R 373)

It may be executed at any hour on any day at any place. However, certain people are
exempted and these include

(1) A member of Parliament or an officer of Parliament while such member or officer is

in actual attendance on Parliament or any committee thereof.
(2) A person entitled to immunity from personal attachment under the Privileges,
Immunities and Powers of Parliament Act [Chapter 10].
(3) A person upon whom immunity from personal attachment is conferred by any other
law.

APPEALS AND REVIEWS

Review

Parties are entitled to review proceedings of lower courts in the high court at any stage of
the proceedings. Tracing the powers of review, the roots lie in the Constitution; section
68 providing for administrative justice.

Section 68 (1) provides that-

‘Every person has a right to administrative conduct that is lawful, prompt, efficient,
reasonable, proportionate, and impartial and both substantively and procedurally fair’.

The purpose of review is to set aside or correct decisions of inferior courts, tribunals and
administrative tribunals which are not proper (according to the law). Section 26 of the
High Court Act gives the high court the jurisdiction to review the proceedings of inferior
courts. Order 33 Rule 256 is the procedural path way to utilize the provision of section 68
(1). The rule provides that-

‘Save where any law otherwise provides, any provides, any proceedings to bring under
review the decision or proceedings of any inferior court or of any tribunal, board or
officer performing judicial, quasi-judicial or administrative functions, shall be by way of
court application directed and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer or chairman of the court, tribunal or
board or to the officer as the case may be, and to all other parties affected’.

The court application must clearly outline the grounds upon which the applicant seeks to
have the proceedings set aside as well as the exact relief prayed for. See r257

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Some of the grounds or review as per section 27 (1) of the High Court Act include-

 Absence of jurisdiction on the part of the court, tribunal or authority involved (Witham
v Director of Civil Aviation and Another 1983 (1) ZLR 52; Cluff Mineral Exploration
(Zimbabwe) Ltd v Union Carbide Management Services (Pvt) Ltd and Others 1989 (3)
ZLR 338 (S)
 Interest in the cause, bias, malice or corruption on the part of the presiding officer
 Gross irregularity in the proceedings or decision (Abbey Estates and Investments (Pvt)
Ltd v Property Renting Corporation and Others 1981 ZLR 39; Minister of Labor,
Manpower Planning and Social Welfare v P.E.N Transport (Pvt) Ltd 1989 (1) ZLR 293

SCOPE OF THE REVIEW POWERS

Using section 28 of the High Court Act, the court on review may;

 Confirm, set aside or correct

 Remit to court a quo when it sets aside but may correct in exceptional circumstances

See Director of Civil Aviation v Hall 1990 (2) ZLR 354

The proceedings should be brought before the court within eight weeks of the termination
of the proceedings which form the subject of the review. The court may however, extend
time for good cause shown by the applicant.

MAIN DIFFERENCES BETWEEN APPEAL AND REVIEW

Appeal is based on the record of proceedings appealed against; On review the court can
go outside the record and receive extrinsic evidence.
On appeal, the complaint is about the result/outcome of the proceedings whereas on
review the complaint is about the method which led to the result/outcome.
Appeal is against judgment which means it comes after the matter has been completed
whereas review application can be made at any stage during the proceedings
NB-the decision of a Magistrates court can be reviewed by the High Court. It should also
be stressed out that the high court cannot be by passed to the Supreme Court.

Review in the Supreme Court

Section 25 of the Supreme Court Act provides for review powers of the Supreme Court.
The section provides as follows;

(4) Subject to this section, the Supreme Court and every judge of the Supreme Court
shall have the same power, jurisdiction and authority as are vested in the High Court and
judges of the High Court, respectively, to review proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(5) The power, jurisdiction and authority conferred by subsection (1) may be exercised
whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court
that an irregularity has occurred in any proceedings or in the making of any decision

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notwithstanding that such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.
(6) Nothing in this section shall be construed as conferring upon any person any right to
institute any review in the first instance before the Supreme Court or a judge of the
Supreme Court, and any provision may be made in the rules of court, and a judge of the
Supreme Court may give directions, specifying that any class of review or any particular
review shall be instituted before or shall be referred or remitted to the high court for
determination.

An understanding of the section shows five essential aspects which are as follows;

1. It confers review jurisdiction on the Supreme Court and every judge of the Supreme
Court;
2. The review jurisdiction conferred on the Supreme Court and every judge of the
Supreme Court is of the same level as the High Court or a judge of the High Court and is
over inferior courts, tribunals and administrative authorities;
3. The review jurisdiction is exercisable by the Supreme Court and/or every Judge of the
Supreme Court mero motu when an irregularity comes to its/his attention;
4. In terms of s25 of the Act, no person has a right to institute review proceedings in the
first instance in the Supreme Court; and
5. The section provides for the making of rules for review by the High Court and also for
the Supreme Court or any judge of the Supreme Court to remit a matter for review to the
High Court.

The Chairman Zimbabwe Electoral Commission and Anor v Roy Leslie Bennet and Anor
SC 48/05

ZIYAMBI J; It appears to me that the effect if subsections (2) and (3) of s 25 of the
Supreme Court Act is that although the Supreme Court may correct an irregularity in
proceedings or in the making of a decision which comes to its attention, not necessarily
by way of appeal or application, no person has the right to institute any review in the first
instance before this Court. Thus it is open to a party aggrieved by proceedings in a lower
court to apply directly to the Supreme Court on review for redress. This much is clear
from the wording of s25 (3) of the Supreme Court Act.

APPEALS IN THE SUPREME COURT

Except in constitutional matters, the Supreme Court is the final court of appeal. The court
deals only with the questions of law in respect of the decision by the lower court. This
means that a Judge of the Supreme Court on appeal is guided by the evidence in the
record.

The commencement of the appeals procedure is by noting of an appeal in terms of r 29 of

the Supreme Court rules signed by the appellant or his or her legal practitioner. The

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notice of appeal must be filed with the Registrar and r 29 (2) provides that once the notice
has been filed, it must thereafter be served on the respondent.

A question arises regarding non-compliance with the rules in this aspect so as to render
the appeal fatally defective. The court has a wide discretion and may condone non-
compliance in terms of r 4 of the Supreme Court rules which provides for departure from
rules.

There are certain essential elements which make the appeal valid. These are;

(a) the date on which, and the court by which, the judgment appealed against was given;

(b) if leave to appeal was granted, the date of such grant;

(c) whether the whole or part only of the judgment is appealed against;

(d) the grounds of appeal in accordance with the provisions of rule 32;

(e) the exact nature of the relief which is sought;

(f) the address for service of the appellant or his attorney

See r 29

Regarding the grounds of appeal, r 32 provides that;

(1) The grounds of appeal shall be set forth concisely and in separate numbered
paragraphs.

(2) The appellant, whether on appeal or on cross-appeal shall not without leave of the
court urge or be heard in support of any ground of appeal not set out when the appeal was
entered but the court in deciding the appeal shall not be confined to the grounds so stated.

After the noting of an appeal, the respondent is entitled to enter a cross-appeal within ten
days of the entry of appeal in terms of r 29.

It should be stressed that once an appeal is noted, there is an automatic suspension of

execution of the judgment which is being appealed against. The judgment creditor, if he
or she wishes to execute nonetheless, will have to show good cause why execution
pending appeal should take place.

The appellant may abandon an appeal through a notice served on the Registrar and the
respondent. The Respondent may apply to a Judge for an order of costs incurred during
the appeal or cross-appeal to that effect. See r 37

LEADING OF EVIDENCE IN AN APPEAL (requirements of the application)

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The basic requirements of an application for the leading of evidence on appeal were set
out by HOLMES JA in S v de Jager 1965 (2) SA 613 as follows;

 There should be some reasonably sufficient explanation based on allegations which

may be true, why the evidence which it is sought to lead was not led at the trial
 There should be a prima facie likelihood of the truth of the evidence
 The evidence should materially be relevant to the outcome of the trial.
The non-fulfillment of any of the requirements would ordinarily render the application
fatal.

HEADS OF ARGUMENT IN THE HIGH COURTAND SUPREME COURT

Rule 6 of the Supreme Court rules provides the following:

(1) Subject to the provisions of rule 43, counsel may in any matter which is to be heard
before the court or a judge submit written heads of argument for the assistance of the
court and shall submit such written heads of argument when requested so to do by a
judge.
(2) Where written heads of argument are requested by a judge in terms of sub rule (1) and
subject to any direction which may be given by the judge, the provisions of rule 43 shall
apply mutatis mutandis.

According to rule 43

(1) Where the appellant will be represented by a legal practitioner at the hearing of the
appeal, a registrar shall send written notification to that legal practitioner as soon as he
has received the record in terms of rule 41, and shall call upon the legal practitioner to
file heads of argument within fifteen days after the date of such notification.
(2) Within fifteen days after being called upon to file heads of argument in terms of sub
rule (1), or within such longer period as a judge may for good cause allow, the appellant’s
legal practitioner shall file with a registrar a document setting out the main heads of his
argument together with a list of authorities to be cited in support of each head, and
immediately thereafter shall deliver a copy to the respondent.
(3) Where the respondent will be represented by a legal practitioner at the hearing of the
appeal, that legal practitioner shall, within ten days after receiving the appellant’s heads
of argument in terms of sub rule (2), file with a registrar a document setting out the main
heads of his argument together with a list of authorities cited in support of each head, and
immediately thereafter shall deliver a copy to the appellant: Provided that, where —
(a) the respondent’s legal practitioner has not received appellant’s heads of argument in
terms of sub rule (2), whether because the appellant will not be legally represented at the
hearing of the appeal or for any other cause; or

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(b) the appeal is set down for hearing less than fifteen days after respondent’s legal
practitioner receives appellant’s heads of argument in terms of sub rule (2); the
respondent’s legal practitioner shall file his heads of argument as soon as possible and in
any event not less than four days before the hearing of the appeal.
(4) Upon receiving the appellant’s heads of argument in terms of sub rule (2), the
registrar shall set the appeal down for hearing:
Provided that unless the parties agree otherwise, at least four weeks’ notice shall be given
to the appellant and the respondent.

NB/ It should be stressed that the failure by the appellant who is represented by a legal
practitioner to serve heads of argument on the registrar will result in the appeal being
deemed abandoned thereby resulting in its dismissal.

COSTS

A party who is successful in proceedings is entitled to an award of costs as the presiding

judge sees fit depending with the circumstances of the case.

Purpose of costs

Costs are granted with a view to affording the party who has been awarded an order for
costs a full indemnity for all costs reasonably incurred by him or her in relation to the
claim or defense to ensure that all costs be borne by the party against whom such order
has been awarded.

R 306 (1) provides that every registrar shall be a taxing officer for the purpose of taxing
costs and may designate such persons as he deems fit and for whom he shall be
responsible as assistant taxing officers and any reference in this order to a taxing officer
shall include an assistant taxing officer so designated.

Costs allowed (r 307)

The taxing shall allow all such costs, charges and expenses as appear to him to have been
necessary or proper for the attainment of justice or for defending the rights of any party,
but save as against the party who incurred the same, no costs shall be allowed which
appear to the taxing officer to have been incurred or increased through over-caution,
negligence or mistake, or by payment of a special fee to another legal practitioner, or
special charges and expenses to witnesses or other persons or by other unusual expenses.

A notice of taxation in terms of r 310 shall be made to the party against whom any order
for costs has been awarded unless the party against whom costs have been awarded has
either not entered appearance to defend or has failed to appear before the court either in
person or by legal practitioner.

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CONSTITUTIONAL COURT PROCEDURES

Reckoning of time (rule 3)

Rule 3 of the rules provides for the reckoning of time.

Rule 3 sub rule 1 provides that Saturdays, Sundays and public holidays must not be
included in the reckoning of time.

Ways in which matters are instituted before the constitutional court.

Any matter to the constitutional court is brought through the following procedures
 By way of application.
 By way of referral.
 Or by way of appeal.

According to order 4 any such application, referral or appeal shall be done in the
appropriate form as set out in the first schedule

Departure from the rules and directives allowed (rule 5)

Rule 5 allows for the departure from the rules and directions as to procedure. The primary
consideration to be made by the court or the judge in departing from the rules and giving
directions is whether the interests of justice will be served by such departure or direction.
 A judge may authorize a departure from any provisions of the rules.

 He or she may give directions as to the procedure which is not expressly provided in
the rules, as long as it appears just and expedient.

 Rule 7 of the rules relates to address of service

RENUNCIATION OF AGENCY

 Rule 8 provides for the renunciation of agency by a legal practitioner.

 The rules allow the legal practitioner to renounce agency at any time before the
matter is set down for trial.
 The rules prohibit the legal practitioner to renounce agency 3 weeks before the date of
hearing except with the leave of the registrar.
 In renouncing agency, the legal practitioner must do so in form CCZ 9 and the notice
must be filed with the registrar and copies served to the client and parties relevant to the
matter.
 A return of service is required to be filed with the registrar.

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If the legal practitioner fails to renounce agency in accordance with rule 8, such
purported withdrawal shall be ineffective.

Service (R 9)
Order 9 of the rules relates to the service. Service must be done by the parties or the
sheriff through personally delivering to the parties or their authorized agents.

Proof of service is 3 fold.

1. If it is delivered to the party’s legal practitioners, by production of a receipt signed by

the legal practitioner. This receipt must be accompanied by a certificate by the person
who effected the service. The certificate must state that the document was served by
him and on the signatory of the receipt {R 9 (2) (a)}
2. If it is delivered to the litigant him or herself, the proof shall be an affidavit by the
litigant that the document was served by him or her on the person concerned. {R 9 (2)
(b)}
3. If service is effected by the sheriff, bay way of a return of service.{(R 9 (2) (c)}

Order 9 rule 3 allows for a request to be made by the registrar to the judge to order
alternative service, when delivery on the person is difficult.

Section 40 of the interpretation act shall be followed in the service of documents unless
the rules provide to the contrary.

According to sub rule 7 of rule 9, documents initiating proceedings are to be serviced by

the sheriff.

Amicus curiae (R 10)

Order 10 provides for an amicus curiae. This is a person of particular expertise which is
relevant to the determination of any matter before the court and who is invited to file his
heads of argument with the court relating to his opinion on the matter before the court.

DUTIES OF THE REGISTRAR

Duties of the registrar are provided for under order 11.

Set down of matters (R 13)

Order 13 provides for the set down of matters in the constitutional court. Order 13 applies
to setting down of matters, whose set down is not provided elsewhere in the rules or the
act. After all the preliminary requirements have been satisfied, the registrar in
consultation with the Chief Justice within thirty days must allocate a date for the case to
be heard.

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Once a matter has been set down, it can-not be withdrawn without consent of other party.

Meda v Sibanda & Others (CCZ 10/2016 Const. Application No. CCZ 65/15)
Mr Mpofu for the first respondent took several points in limine. He argued that the
application was improperly before the Court, because the remedy the applicant should
have utilized was that of an appeal to the Supreme Court as the application was in
response to the judgment of the High Court. Mr Mpofu argued that the Constitutional
Court has no jurisdiction to overturn an extant order of the High Court in a constitutional
application not alleging that the decision was a violation of the right to equal protection
of the law.

Mr Uriri for the applicant indicated that he had instructions to withdraw the matter and
sought to apply that the matter be withdrawn. Mr Mpofu opposed this application arguing
that the matter should not be withdrawn, but that the court exercises its discretion and
dismiss the matter with costs on a higher scale.

While parties may at any time before a matter is set down, withdraw a matter, with a
tender of costs the same does not hold true for a matter that has already been set down for
hearing. Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in Erasmus “Superior Court Practice” B1-304. A
person who has instituted proceedings is entitled to withdraw such proceedings without
the other party’s concurrence and without leave of the court at any time before the matter
is set down. The proceedings are those in which there is lis between the parties one of
whom seeks redress or the enforcement of rights against the other. An application for
appropriate relief on the grounds of alleged violation of a right is such a proceeding.

HELD:
1. Once a matter has been set down for hearing it is not competent for a party who has
instituted such proceedings to withdraw them without either the consent of all the parties
or the leave of the court. In the absence of such consent or leave, a purported notice of
withdrawal will be invalid. The court has discretion whether or not to grant such leave
upon application. The question of injustice to the other parties is germane to the exercise
of the court’s discretion. It is, however, not ordinarily the function of the court to force a
person to proceed with an action against his will or to investigate the reasons for
abandoning or wishing to abandon one.
2. The court agrees with Mr Mpofu that there is an application before it to dismiss.
Having made this finding, the court also accepts Mr Mpofu’s preliminary point that the
applicant should have exhausted the remedy of an appeal instead of making a
constitutional application. The law provides a clear remedy of an appeal where an
applicant is not happy with a decision of a lower court. Competent relief could have been

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granted by the Supreme Court on appeal since all that the applicant wanted was an order
that the property in dispute was not especially executable and subject to sale by
execution.

AWARD OF COSTS AT A HIGHER SCALE OF LEGAL PRACTITIONER CLIENT

SCALE.

The applicant, through Mr Uriri offered to pay costs on the ordinary scale. However Mr
Mpofu for the first respondent argued that the applicant should be mulcted with costs on
the legal practitioner and own client scale. It was his submission that the matter, between
the same parties, on the same facts and for the same relief had previously been brought
by the applicant under a different case no. CCZ 31/15 and had been struck off the roll. It
was Mr Mpofu’s submission that the court in that earlier case had highlighted the defects
in the application to the applicant’s legal practitioners. The same application has been
brought with the same defects.

HELD: While it is rare for the court to grant costs on a higher scale in constitutional
matters, it is the unanimous view of the Court that the applicant’s conduct justifies such
an award of costs. The defects that afflicted the first application were not attended to.
Just as was the case with the previous application it has not been shown in the founding
affidavit how s 71(3) of the Constitution has been infringed. There is no doubt that the
application should not have been brought to the court.

Applications generally ( Rule 14)

Part III of the rules provides for applications generally. Order 14 of the rules specifies the
presentations of applications to be filed with the constitutional court
See order 14 on how the applications should be drafted and presented for court

Urgent chamber applications (r 15)

Order 15 provides for urgent chamber applications

If a party intends to file a matter as an urgent application, he or she must file the
application together with an affidavit requesting the matter to be treated with urgency.

1. The contents of the affidavit must set out

2. The facts of the matter
3. The name of interested or potentially interested parties.
4. Justification of the matter to be treated as urgent.
Certificate of urgency by a legal practitioner must accompany the affidavit

Court applications

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Court applications with the Constitutional Court are regulated by order 16 of the rules.
 Applications shall be in form CCZ 1 (rule 1).
 Where it is an ex parte application, the application is to be form ccz 1 with minor
modifications (rule 2).
 The court application shall be supported by affidavits which must be deposed by a
person who can swear positively to the facts, the basis on which relief is being sought
and any relevant supporting documents.
 The court application must state the physical address of service.
 Must be addressed to the registrar and served on all respondents.
 Must call upon the respondents to serve notice of opposition within ten days of notice
being served.

NOTICE OF OPPOSITION (O 17)

 Must be in form CCZ 2

 Must be filed within 10 days from date of service.
 Must have supporting affidavit which embodies the facts on which the respondents
oppose the claim. Must file all relevant supporting documents.
 After filing with the registrar the respondents must file the notice of opposition,
together with affidavits and supporting documents to the applicant.
 If respondent fails to file notice within the dies induciae, it will be barred and
registrar to require the applicant to file heads of argument and proceed to set down
matter for hearing

Court may require the applicant to address it on merits of claim even if the respondents
did not respond.

ANSWERING AFFIDAVITS (R 18)

The applicant must file an answering affidavit within 10 days of service of the notice of
opposition which must be served on the respondent and registrar to require proof of
service 2 days after such service.
After the filing of answering affidavit, no further affidavits are to be filed without leave
of court.

SET DOWN OF APPLICATIONS (R 19)

Provided for under rule 19 of the rules.
No notice of set-down is required if the respondent has been barred in terms of rule 17
sub-rule (5).
 If the respondent has filed a notice of opposition and applicant has filed an answering
affidavit, the applicant has to request the registrar in writing to set down the matter for
hearing.
 If the respondent has filed a notice of opposition and applicant has failed to file an
answering affidavit, the respondent has two options

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To request the registrar, in writing, to set the matter for hearing

Make a chamber for the dismissal of the matter for want of prosecution

CHAMBER APPLICATIONS (R 20)

Provided for under rule 20 of the rules.

Shall be in Form CCZ 3 the form and requirements of such an application are provided in
the sub-rule 1 and it corresponding parts.

APPLICATIONS FOR DIRECT ACCESS (R 21)

Part IV deals with the application for direct access. Direct access is a form of leave of
court to approach the court directly without going through the other subordinate courts.
There are certain matters provided in rule 21 that are regarded as within the exclusive
jurisdiction of the court. Application for direct access is not needed in such cases since it
is the Constitutional court that only has jurisdiction in such cases. Direct access is to be
sought for those constitutional matters that other courts have the jurisdiction over. Bear in
mind that an application for direct access is a procedure to seek the approval of the court
to bring a substantial claim before the court determination. Thus application for direct
access is a preliminary procedure seeking approval to institute the main claim to the
constitutional court as the court of first instance. Application for direct access is intended
to seek leave of the court to approach the constitutional court as a court of first instance
on the constitutional matter at hand.

 Application for direct access is provided for in terms of section 167 (5) of the
constitution. Such an application must be supported by an affidavit, setting out the facts
on which the applicant is relying on for relief.
 The application shall be filed with the registrar and served on all interested parties
whether direct or substantial. The application shall set out
 The grounds on which it is contended that it is in the interests of justice that an order
for direct access be granted.
 The nature of the relief sought and the grounds on which such relief is premised.
 Whether the matter can be heard by the court without hearing any oral evidence or the
manner in which oral evidence will be is to be adduced.
 The applicant must attach to the application a draft of the substantive application he or
she seeks to file with the court.
 Any person who has been served with the documents has the right to register his or her
opposition with the registrar within 10 days after such service. Must register his or her
opposition by writing to the registrar and the applicant. In his or her opposition, the
grounds on which he or she opposes must be communicated.
 Application for direct access can be dealt with summarily without hearing oral or
written argument other than contained in the application itself.

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In determining an application for direct access, the judge should consider the following
elements, amongst others.
 Whether there are prospects of success if direct access is granted.
 Whether the applicant has any other remedy available to him or her
 Whether there are disputes of fact in the matter

CASES ON DIRECT ACCESS TO THE CONSTITUTIONAL COURT

Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) 2015 (2) 422 (CC)
The applicant approached the constitutional court directly, not in terms of section 85(1)
but, under section 167 and 176 of the constitution. The applicant had lost an appeal
before the Supreme Court but the constitutional issues raised on which he based his
application before the Constitutional Court were neither raised before, nor determined by
the supreme court. The Supreme Court had upheld a high court judgment that ordered the
applicant to issue a certificate nolle prosequi to the respondent. The applicant wanted the
constitutional court to set aside the Supreme Court judgment on the basis that it interfered
with the independence of his office provided for by section 260 of the constitution. At the
hearing of the application, the applicant conceded that the matter had not been properly
brought before the constitutional court.

HELD, that section 167 (1) merely makes the constitutional court the highest court in
constitutional matters but does not confer on anyone the right to approach the
constitutional court directly.

HELD FURTHER; that section 176 does not avail to a litigant of direct access to the
constitutional court.

HELD FURTHER; that direct applications to the constitutional court may only be made
in terms of those constitutional provisions that confer such a right.

HELD FURTHER, obiter that an appeal lies to the constitutional court against an order
of the Supreme Court, only on a constitutional matter that has been determined by the
Supreme Court.

APPLICATIONS IN TERMS OF CHAPTER 4 OF THE CONSTITUTION.

 Rule 22 provides for the procedure for approaching the constitutional court on an
allegation that there has been a violation of the bill of rights. If party intends to
approach the court as the court of first instance in the matter, an application for direct
access must first be done and the rules in rule 21 apply.

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 Such procedure is by way of court application and the procedure as to court

applications applies mutatis mutandis.
 Application is to be signed by the applicant or his or her legal practitioner and shall
be furnished with the following elements
 where relevant, the date on which direct access was granted
 The nature of violation being alleged
 The basis upon which the applicant seeks relief
 The nature of the relief sought
 The physical address of service of the applicant.
 Proof of service is to be filed with the registrar within two days of such service.

The procedure that applies in court applications applies with equal effect on court
applications in terms of chapter 4.

After the filing of an answering affidavit, or the expiry of 10 days after the filing of a
notice of opposition and the founding affidavit, the registrar may require the parties to
file their heads of argument.

Chihava and ors v Principal Magistrate And Anor 2015 ZLR 31

The applicants approached the constitutional court in terms of s 81 (1) of the Constitution
of Zimbabwe alleging that the manner in which criminal proceedings against them were
conducted in the magistrate court were a breach of their fair trial rights enshrined in s 70
of the constitution. They sought an order quashing the proceedings and directing a trial de
novo before a different magistrate. The applicants filed their application while
proceedings were still pending in the magistrate court. The respondents raised a point in
limine, contending that since the application was premised on a constitutional issue that
arose during the course of proceedings in the magistrates’ court, the only course open to
the applicants was a referral in terms of section 175 (94) of the constitution.

HELD: upholding the point in limine, that any constitutional issue that arises during
proceedings in a lower court ought to and must be brought to the constitutional court only
upon a referral in terms of section 175 (4) of the constitution.

HELD FURTHER, that if, however a lower court improperly refuses to refer a matter in
terms of section s 175 (4), an unsuccessful applicant is entitled to approach the
constitutional court directly in terms of section 85 (1).

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HELD, FURTHER THAT section 85 (1) of the constitution must not be given a literal
and grammatical meaning that has the effect of giving any person a direct and unfettered
access to the constitutional court, without regard to order and certainly in court process.

HELD, further that in interpreting section 85(1) and 175 (4) of the constitution, a
generous and purposive interpretation has to be adopted to avoid the absurdity and
disorder that would arise from parallel proceedings being pursued in the constitutional

CHALLENGE TO THE ELECTION OF THE PRESIDENT OR A VICE

PRESIDENT.

To be done in terms of order 23. Order 23 stipulates that it must be done through a court
application
The application is to be filed with the registrar and served on the respondent within 7
days of declaration of the result of the election.
Respondent, if intending to oppose must file notice of opposition within three days
service upon him or her, failing of which shall be barred.
Applicant may within 3 days of service, file and an answering affidavit.
Applicant is to file his heads of argument simultaneously with his or her answering
affidavit and serve a copy to respondent.
In the event that the applicant does not intend to file answering affidavit, must file heads
of argument at least 3 days before hearing the matter.
The respondent must file and serve the heads of argument within three days of being
served with the applicant’s heads or argument.
A party who is a self-actor shall not be required to file heads of argument.
The registrar must set down the matter for hearing within 14 days of the filing of the
application.

REFERRAL OF A MATTER TO THE CONSTITUTIONAL COURT. (R 24)

Constitutional matters may arise in the proceedings in a lower court. Referrals of such
constitutional matters that arise during the proceedings in a lower court can be made in
two ways.
The court or judicial officer may mero muto request the parties to refer the submissions
on the constitutional issue or question to be referred for determination
The referral must state the specific constitutional issue he or she considers should be
resolved by the court.

The party may make an application to the presiding judicial officer for referral of the
constitutional dispute to the constitutional court for determination.

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Both referrals shall be made in form CCZ 4 and must be accompanied by a copy of the
record of proceedings and affidavits or statements from the parties setting out the
arguments they seek to make before the court.
The record of proceedings must furnish the following
(i) Evidence led by the parties
(ii) Where possible specify the findings by the judicial officer.
(iii) The issue for determination by the court.
Where there is a statement of agreed facts, it shall be sufficient to replace the evidence
and findings.
Where there is dispute of fact, the court making the referral should shall hear evidence
and make a determination on the factual issues.
If there is no dispute of facts, the parties shall prepare a statement of the agreed facts.

The judicial officer shall instruct the clerk or registrar to refer the document prepared for
referral and the clerk or registrar is to transmit such documents within 14 days of such
direction.

The document must be certified before it is transmitted to the constitutional court.

When registrar has received referral, must call upon the parties to file their heads of
argument. After filing Heads of argument or either party failing to file its heads
argument, set down the matter for hearing.

Reservations regarding a bill

The President is entitled to seek the position of the court regarding the constitutionality of
a bill in terms of section 131 (8) (b)

Appeals to the Constitutional Court

A constitutional case may be brought before the constitutional court through an appeal
from the lower court.
A party who is aggrieved by a constitutional decision of a lower court is entitled to
approach the constitutional court through an appeal. The initial procedure is to apply for
leave to appeal within 15 days of the decision of the subordinate court which must be
filed with the registrar and the other parties, who must be cited as respondents.
It is necessary to obtain a leave to appeal in all appeals to the constitutional court, except
in the circumstances specified in terms of rule 21(1) and 31(2).

The application must contain;

(v) A draft notice of appeal
(vi) The decision against which the appeal is based and grounds on which such decision
is disputed.

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(vii) A statement concisely and clearly stating the constitutional matter raised in the
decision.
(viii) Any supplementary information relevant to the proceedings and to be brought to the
attention of the court.

Respondents to file a notice of opposition within 10 days of service of application for

leave. The notice of opposition must
1. Show the grounds, in detail, on which the respondent opposes the appeal.
2. Must have supporting affidavits.
3. Any other supplementary information to be brought to the attention of the court.

Cross appeals

Sub rule 6 provides for the provisions of cross appeal. A respondent who intends to cross
appeal must within 10 days from service, file an application for leave to cross appeal.
Rules which apply to appeals shall apply mutatis mutandis.
If the respondent fails to file a notice of opposition, he or she shall be barred and the
applicant entitled to request the registrar to place the matter to before the judge in
chambers for directions
If the request is not made, the registrar is to put the matter before the chief justice for
directions after the expiry of 10 days.
It is provided for in terms of rule 33
(vii) An appeal shall be commenced by a notice of appeal in terms of this rule
(viii) The notice of appeal shall contain
(ix) The date on which and the court by which the judgment appealed against was given
(x) If leave was granted, the date of such grant
(xi) Whether whole or part of the judgment is being appealed against, and if its only part,
which part of the judgment is being appealed against.
(xii) The grounds of appeal in terms of rule 36
(xiii) The relief sought
(xiv) The address of service of applicant.
The notice of appeal must be filed twice.

One with the registrar of the constitutional court and the other with the registrar or clerk
from the court whose judgment is being appealed against.

The time for noting an appeal is dependent on whether leave to appeal is needed.
 If leave to appeal is not necessary, the notice must be filed within 15 days of the date
of judgment appealed against.
 If leave is required, and has been granted, must be filed within 10 days from the date
the leave to appeal was granted.

Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15

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(Ziyambi JCC)

The applicants sought leave to set down an appeal from the Supreme Court on an urgent
basis. It was argued that they had such a right of appeal, in view of the wording of s
167(5) (b) as read with s 169 (1) of the Constitution. The applicants submitted that s
167(5) (b) granted a right of appeal in a case where the alleged violation, by the Supreme
Court, of the applicants’ constitutional right only became apparent after the judgment was
handed down. They argued that it was not necessary to have requested the Supreme Court
to refer the matter to the Constitutional Court in terms of s 175 (4). The respondent
argued that an appeal invites a superior court to determine the correctness of the lower
court’s decision on issues which were placed before it. There were no constitutional
issues placed before the Supreme Court for determination or determined by the Supreme
Court. There could, therefore, be no right of appeal since no decision was made by that
court on constitutional matters. The proper recourse available to the applicants was to
bring an application in terms of s 85 of the Constitution if it was felt that a breach of their
fundamental rights had occurred.

HELD: the applicants had not established any right to approach the Constitutional Court
by way of appeal. Section 167 (5) relates to rules of procedure regulating the manner of
approach to the Constitutional Court on appeal from lower courts. It does not confer a
right to appeal on a litigant who has no right of appeal. For this right, the litigant must
look elsewhere in the Constitution. Such a right may be read into s 175 (3), which applies
where an order of constitutional invalidity of any law has been made by a court. Failing
that, a right of appeal could only arise where the Supreme Court makes a decision on a
constitutional matter

APPLICATION FOR CONDONATION AND EXTENSION OF TIME

Rule 35 provides for application for condonation and extension of time within which to
appeal.
 It must be made through a chamber application.
 Must be signed by legal practitioner or party,
 Must be accompanied by the copy of judgment being appealed against
Application for condonation should be attached with the following
(i) A draft notice of appeal in accordance with rule 33
(ii) And affidavit setting out the facts on which the party intends to rely
Application for extension of time shall
(i) Have the notice of appeal in accordance to rule 33 (1) and (2) attached to it
(ii) An affidavit setting out the reasons why the appeal was not entered in time or leave
to appeal was not entered in time.

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GROUNDS OF APPEALS
Rule 36 governs the presentation of grounds of appeal.
(i) Must be concisely and in separate numbered paragraphs
(ii) Must get leave of court to argue or be heard in any support of any ground of appeal
not set when the appeal was filed.
An application to amend grounds of appeal is allowed subject to adequate notice on the
other party.

PROCEDURE ON APPEALS
The procedure on appeals is provided in rule 38
After leave has been given in terms of the rules the applicant shall cause the preparation
of the appeal record and file it with the registrar.

AN APPEAL RECORD MUST CONTAIN THE FOLLOWING

(i) The judgment of the court which is being appealed against.
(ii) All documentation filed by the parties.
(iii) All evidence adduced the court a quo which will be relevant in the determination of
the matter.
(iv)Parties should agree on what must be contained in the record. In the absence of such
agreement, any party is to apply to the chief justice by way of chamber application for
directions on compilation of the record.
(v) Respondent may respond to the application within 10 days of service and shall set out
the reasons for his contentions.

Heads of argument

Rule 39 applies to heads of argument for all appeals, referrals and applications where
such heads have not been regulated by any other rule in the rules.
Rule 40 relates to informa pauperis procedure.

THE HEARING OF MATTERS

Provided under rule 41

The hearing of any application shall be directed by the judge and may be heard in
chambers or in open court.
The parties are allowed 20 minutes to address the court and must not repeat their heads of
argument. An assumption will be that the court has read its arguments when they were
filed.

SECURITY FOR COSTS

Rule 42 relates to security for costs from the appellant or applicant.

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APPLICATION OF SUPREME COURT RULES.

Supreme Court rules apply with regards to any matter that is not dealt with in the rules.
The court has the discretion to suggest to the contrary.

BARRING (R49)

Any party who has failed to file an opposing affidavit or heads of argument within the
time prescribed in the rules or as directed by the court or a judge shall be deemed to have
been automatically barred.

The bar may be removed in accordance to sub rule 3

Rule 54 relates to the passing of judgment

COSTS

Rule 55 stipulates that generally no costs are awarded in a constitutional matter. The
awarding of damages is at the discretion of the court. Rule 55 sub rule 2 gives the orders
that a judge may give with regards to costs. Sub rule 3 directs on instances where the
costs will be awarded against a legal practitioner or when he or she should be denied fees.

Rule 57 relates to the execution of judgments

The First Schedule provides the forms or templates to be used in any court process in the
Constitutional Court.

Constitutional Cases

Nkomo v Minister, Local Gvt, Rural & Urban Development & Others (CCZ 6/2016

Requirements of mandamus

Undoubtedly, it is within the powers of a court before which a constitutional matter is

argued to grant, in an appropriate case, a mandatory interdict or mandamus. I have
already concluded that since the complaint does not relate to the breach of a fundamental
right, the applicant is not entitled to approach the court in terms of s 85. However, even
assuming the applicant was properly before the court, he has not made out a case for the
mandamus that he seeks.

While not necessarily bound by them, the court is generally guided by common law
principles relating to interdicts. Thus in order to prove his entitlement to a mandamus in

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this case, the applicant would be required to meet the requirements for the grant of a final
interdict. These are:

1. A clear right.
2. An injury actually committed or reasonably apprehended.
3. The absence of a similar protection by any other remedy.

Muzanenhamo v Officer In Charge CID (Law & Order) & Others (CCZ 287/12)

MATERIAL DISPUTES OF FACT IN MOTION PROCEEDINGS

As a general rule in motion proceedings, the courts are enjoined to take a robust and
common-sense approach to disputes of fact and to resolve the issues at hand despite the
apparent conflict. The prime consideration is the possibility of deciding the matter on the
papers without causing injustice to either party. The first enquiry is to ascertain whether
or not there is a real dispute of fact. A material dispute of facts arises when material facts
alleged by the applicant are disputed and traversed by the respondent in such a manner as
to leave the court with no ready answer to the dispute between the parties in the absence
of further evidence. In this regard, the mere allegation of a possible dispute of fact is not
conclusive of its existence. The respondent’s defense must be set out in clear and cogent
detail. A bare denial of the applicant’s material averments does not suffice. The opposing
papers must show a bona fide dispute of fact incapable of resolution without viva voce
evidence having been heard.

REFERENCES
 Constitution of Zimbabwe no 20 of 2013
 Constitutional Court Rules SI 61 of 2016
 High Court of Zimbabwe Act, Chapter 7.06 (formerly NO 29/1981)
 High Court Rules, RGN No. 1047/71
 Supreme Court of Zimbabwe Act, Chapter 7.13 (formers No 28/1981)
 Supreme Court Rules, RGN. No. 380/1964

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 Section 3 of the Matrimonial Causes Act, Chapter 5.13

 Constantine Theophilopoulos, CM van Heedern & A Boraine, Fundamental
principles of Civil Procedure, 3rd ed,2015
 Herbstein and Van Winsen: “The Civil Practice of the Supreme Courts in
Southern Africa” 3rd Ed.
 Superior Courts Act 10 of 2013 and Magistrates’ Courts Act 32 of 1944 and
Rules, 2016 edition, Juta.
 Isaacs “Becks Theory and Principles of Plead ins in Civil Actions” 5th Ed.
 Stuart Sime &Derek French, Blackstone’s Guide to The Civil Justice Reforms
2013
 A.A.S Zuckerman & Ross Cranston, Reform of Civil Procedure, Clarendon
Press, Oxford, 1995
 Deborah L. Rhode, Access to Justice, Oxford University Press, 2004
 Sarah Staszak, No Day in Court; Access to Justice and the Politics of Judicial
Retrenchment, Oxford, 2015

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