CIVIL PROCEDURE LB 206 (EXTRACTS FROM

PRINCIPLES OF CIVIL PROCEDURE IN

ZIMBABWE BY RODGERS MATSIKIDZE

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INTRODUCTION TO CIVIL PROCEDURE

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 enable 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

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 Courts thereby ensuring order within
the courts.
 Designed to allow access to justice for parties.
 To avoid parties from resorting to self-help.
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  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.

The Principles Underlying the Adversarial System

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 to 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.

DISTINCTION BETWEEN ADVERSARIAL AND INQUISITORIAL JUDICIAL

SYSTEM.

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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 Jones 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”.

RIHT OF ACCESS TO JUSTICE

ACCESS TO COURT
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Right to a Fair Hearing (Section 69 of the Constitution of Zimbabwe)
- Every person accused of an offence has the right to fair and public trial within a
reasonable time before an independent and partial court.
- Every person has a right to a fair, speedy and public hearing within a reasonable time
- Every person has the right of access to courts or to some other tribunal or forum
- Everyone has a right at his or her own expense, to choose and be represented by a
legal practitioner before any court, tribunal or forum.
Legal Aid (Section 31 of the Constitution of Zimbabwe)
- The State, within the limits of the resources available to it, must take practical
measures to provide legal representative in civil and criminal cases for people who are
unable to afford legal practitioners of their own choice.

Locus Standi In Judicio

Parties need to have legal capacity to use or defend proceedings. Legal capacity is also
referred to as locus standi and it is bestowed in general on all-natural persons over 18 years
old with the exception of certain category of people who are under legal disability. For
example:
a. Minors - A minor is sued in the name of guardian or in their own name assisted by
the guardian. If there is no guardian, they should seek an order that curator ad litem be
appointed. The same applies when the interests of the guardian conflicts with those of the
minor child.
b. Mentally Incapacitated-Any proceedings against them are instituted by curator ad
litem.
c. People declared insolvent: represented by the Trustee.
d. Woman married in community of property: husband institutes the action on behalf
of the woman as she is deemed a minor.
e. Prodigal: it’s a person who is financially irresponsible and is represented by a curator
bonis ad litem.
f. Alien enemies – cannot sue – it’s a person in a country in a declared state of war.
g. Fugitives cannot sue as they are regarded as temporary stripped of their citizenry
rights.
h. MPs cannot be sued in terms of privileges of Immunities Powers Act for acts done in
Parliament within the rules of parliament.
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i. Diplomats: Privileges and Immunities Act only in cases of governmental nature
j. President: s98 of the Constitution in his personal capacity. In his official capacity he
can be sued with the leave or permission of the court in terms of Order 6 Rule 1 of the
Magistrates Court (Civil) Rules,2019 (Rules), i.e SI 11 of 2019.
k. Judges
In respect of the artificial persons the following have locus standi injudicio if they are
established or incorporated within the laws:
(a) The government (state) may be sued in terms of s6 of the States Liabilities Act. A
responsible Minister or head of Department or the Secretary of the Ministry concerned may
be sued as a defendant in terms of s3 of the State Liabilities Act. One should cite the Minister
by title and not by name e.g XV Minister of Lands.
(b) Local authorities and municipality’s e.g RDC or urban councils may be sued in their
full incorporated names.
(c) Statutory bodies e.g Universities
(d) Parastatals e.g ZESA; ZINWA
(e) Companies incorporated under the Companies Act.
(f) Co-operatives incorporated under Cooperative Societies Act
(g) Common law universitas (e) – body which is regarded by common law. There are
three elements to be satisfied:
i. It must have an entity which is distinct and separate from its individual members.
ii. It must have perpetual succession – a life which extends beyond the life of its
members.
iii. it is capable of owning property separately from its members.

See Morrison v Standard Building Society 1932 AD 229.

The respondent was an incorporated building society which brought an action against the
appellant for ejectment from premises situated in Pretoria and for damages. The appellant
consented amongst other things that the defendant had no locus standi. The argument was
dismissed in the TPD. Held: An association of individual does not always require the special
function of the state in order to enable it to hold property or to use its corporate name whether
or not it can depend on the nature of the association, its constitution, its objectives and
activities. The court concluded that the standard for building society have been formed in

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1891 and these activities had not at any time been interfered with. Also, it possessed the
characteristics of a universitas.
Unification Church of Zimbabwe v Kundiona & Ors HCH 94/93
The applicant was seeking to bring certain companies under judicial management pending the
removal of the respondent as directors of the companies. The respondents raised a point in
limine (in limine – point raised at beginning of proceedings) that the applicant had no locus
standi. The applicant had been registered in 1977 as a welfare organisation under the Welfare
Organisation Act. The Constitution of the applicant gave him among other powers to
purchase and acquire property both movable and immovable and to carry on business with a
view to increasing the revenue of the association and also to institute and defend legal
proceedings. Held: The court found that although conformed to the requirement of common
law universitas, the application should be dismissed because the applicant had not used the
name to its constitution described as the Unified Family. The second reason was that the
deponent of the founding affidavit did not have authority to depose to the affidavit as
required by the Constitution. See also Moloi v St John Apostolic Faith Mission 1954 (3) SA
940
a. Partnerships
b. Interested parties
A person must have an interest in the matter to institute proceedings that is direct, substantial
interest and real interest as was also propounded in the case of Zimbabwe Teachers
Association & Ors v Minister of Education and Culture 1990 (2) ZLR 48 and in Sibanda &
NPSL v Mugabe & Anor HH 102/94. Sibanda was the secretary general of the NPSL. He was
suspended by ZIFA and Mugabe was the chairperson. The proceedings were brought on
review by Sibanda on the basis of jurisdiction, interest in the company was biased, malice
and seeking that the decision and punishment reached were unreasonable. The respondent
claimed that the NPSL had no locus standi because it sought no relief and no order was made
against him by ZIFA and therefore its interest in the outcome of the review was indirect. The
response of the NPSL was that they had the interest in the matter because as its secretary-
general Sibanda carried out various functions for it and saw the action against Sibanda was
actually an attack on them. Held: The NPSL had direct and substantial interest in the matter
therefore they had locus standi to institute the review proceedings.
Locus standi in terms of s85 (1) of the Constitution of Zimbabwe on constitutional matters
has been widened and hence has done away with the concept of substantial interest.
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 Prescription
General Law claims
Prescription Act, Chapter 8:11 (section 13)
Debts owed to the state in respect of taxes, royalties, tribute, share of profits – 30 years
State loans or debts from sale or lease of land by the state – 15 years
Other debts owed to the state or debts arising from bills of exchange or other negotiable
instruments or notarial contracts – 6 years
Any other debt – 3 years except where an enactment provides otherwise e.g. Section 70 of
the Police Act, Chapter 11:10; section 25 of the Road Traffic Act, Chapter 13:11
Customary law claims
NB// There is no prescription for customary law claims

Officers of the court

• Magistrate
• Messenger of Court
• Clerk of Court
• Assessors
• Chief Magistrate
• Interpreters
Demand
What is a Demand?  a written notice to the debtor demanding or requiring payment of
the debt
There are instances where a demand is exercised, and these are:
a.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.
b. Where a demand is required to complete the cause of action. Examples are by statute i.e
the State Liabilities Act – 60 day notice is required when suing the state.
c. By agreement between the parties
d. Where a demand is required to place the debtor in mora.

Pleading Of a Demand
It is necessary if demand was necessary to complete the cause of action.

The Form and Content Of The Demand

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

THE CUSTOMARY LAW COURTS

Lower Courts in Zimbabwe

The Lower courts of Zimbabwe include the customary law courts also known as the local
courts as well as the Magistrates Court. There are various statutes that allow for the setting up
of tribunals established either by the Minister or by the President (see s174 of the
Constitution). The local courts are comprised of Primary Court and Community Courts. The
appeals and reviews lie to another lower court which is the Magistrates Court. The local
courts apply customary law while the Magistrates Court applies general law.

What Is Customary Law?

Zimbabwean customary law is not codified but the 1980 Constitution of Zimbabwe clearly
shows that customary law as existing on 10 th June 1891 has modified and developed since
modification by Roman Dutch common law. The current constitution does not sufficiently
define customary law; s192 of the constitution simply provides that ‘the law to be
administered by the courts of Zimbabwe is the law that was in force on the effective date, as
subsequently modified.’

Section 3 of the CLLCA provides for the circumstances where the customary law applies. In
application of customary law, the following ought to be taken into consideration:
a. The parties ought to agree to the application thereof, also taking into consideration the
nature of case and surroundings. The surrounding circumstances would include mode of
life (see Lopez v Nxumalo), the subject matter, the understanding by the parties of the
provisions of customary law or the general law of Zimbabwe and relative closeness of the
case and parties to customary law or general law.
b. Is it a subject matter which requires the application of customary law?
c. Where regard has been considered to the nature of the case and the surrounding
circumstances and it appears just and proper that it applies.
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Primary Courts
It is established by a Minister by a warrant specifying specific geographical area (s10 (1) (a)
of CLLCA). The Minister further appoints the presiding officer, headman or any other person
but has to also consult with the Minister who administers the Traditional Chiefs Act. The
headman would be assisted by and at least two and no less than five assessors who will act in
an advisory capacity.
Community Courts
It is constituted by a warrant by the Minister (s10 (1) b of CLLCA) and the presiding officer
is a chief or some other person also appointed by the Minister. In terms of s11 (2) and s11 (3)
of the CLLCA the Minister must consult for the Ministry administering the Traditional
Chiefs Act. Further in terms of s12 the assessors must be between 2 and not more than five
who must act as advisors.
Establishment and Jurisdiction
The customary law courts or local courts jurisdiction is demarcated in terms of s15 (1) (a) of
the Customary Law and Local Courts Act (CLLCA). It has no jurisdiction on claims that are
not determinable by customary law.
The local courts are thus empowered to hear, try and determine any civil case in which
customary law is applicable (see s15 of the CLLCA). The local court may hear a matter if;
a. The defendant is resident within the area of jurisdiction of the court
b. The cause of action or any part thereof arose within the court’s area of jurisdiction or
c. The defendant consent to the jurisdiction of the court
d. The other local court with competent jurisdiction transfers a case to another local court of
competent jurisdiction.
e. It can adjudicate upon a customary union recognised by customary law (not customary
marriage).
See s15 of CLLCA.
The jurisdiction of the local court is however limited as follows:
a.The local court cannot preside over a matter that is not determinable by customary law.
b. Where the value of the claim or the thing exceeds the prescribed value of the local
courts.
c.The local courts cannot determine the validity, effect or interpretation of any will
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d. It cannot dissolve any marriage.
e.The local court may not determine the custody, or guardianship of minors
f. It cannot determine maintenance issues,
g. It cannot determine rights in respect of land or other immovable properties.
See s16 of CLLCA

RULES OF PROCEDURE IN THE LOCAL COURTS

The local court proceedings are commenced as follows;
The proceedings are commenced by summons issued by the aggrieved person which should
state the venue, the local court and the time of the proceedings. The parties may by agreement
appear before a local court. The local court is empowered to summon before it a defendant or
any witnesses who are required to give evidence before it (see s19 (1) of CLLCA).

TRIALS IN LOCAL COURTS

Defendant’s Response
The defendant may respond orally on the day in question or may file a written response.
There is no requirement for formality.
Hearing and Leading Of Evidence
The procedure and leading of evidence is regulated by customary law and not by general law.
However, the principles of natural justice apply. The hearing and leading of evidence is done
informally and in a simple manner (s20 (1) of CLLCA). The guiding principle to the
presiding officer is to do the hearing in the informal and simple manner that enhances
substantial justice. See also s26 of the CLLCA. In terms of section 20 (2) a legal practitioner
shall not be entitled to appeal before a local court on behalf of a party but in terms of s69 (4)
of the Constitution of Zimbabwe that is now unconstitutional. The hearing of all local courts
shall be done in open courts (S20 (3) of CLLCA).
Transfer Of Cases Between Local Court Or To A Magistrates Court
The presiding officer may cause a transfer of a case if:
a.The matter is not supposed to be determined according to customary law
b. His/her court lacks jurisdiction to try the case.
c.For any other good reason i.e recusal, etc
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The transfer can be done at any stage before the judgment and should be referred to a
Magistrate who shall give directions as to the transfer to another court. The Magistrate to
whom such a case is referred has powers to annul the proceedings and refer the case to be
heard de novo by a competent local court or by a Magistrates Court of competent jurisdiction.
A Magistrate may also direct that the case be continued in the court which referred the case to
him (see s22 of CLLCA).

Contempt Of Court
A person may be found in contempt of a local court if he/she insults any member of the local
court, interrupts wilfully, or disturbs the peace of any local court proceedings. The local court
has power to have such a person removed from the court or be detained in custody until the
court adjourns. In addition, any person in contempt may be fined although he/she will be
entitled to appeal (see s21 of CLLCA).

Default Of The Defendant

If a summoned person fails to appear before the local court or to remain in attendance until
excused, the local court if satisfied that the default is wilful can order the arrest of the
defaulter. The arrest can only be done if there is evidence of wilful default for example
evidence of service i.e certificate of service signed by person responsible for effecting
service.
When an order for arrest is made, the defaulting party will be arrested and brought before the
local court. The arrest is affected by the messenger of that local court. However, if the
messenger of court cannot arrest the defaulting party, the order is reduced in writing and then
endorsed by the magistrate to enable the messenger of court or a police officer to effect the
arrest.
The arrested person is brought before the local court and shall be entitled to be heard before a
penalty is imposed. The local court may impose a fine as prescribed by a statutory instrument
as reviewed from time to time. The fine maybe appealed as follows; an appeal from the
primary court should be made to the community court and from the community court to the
Magistrates Court.

JUDGEMENTS OF LOCAL COURTS

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Remedies That Maybe Granted By the Local Courts
A local court may make an order in the following terms:
a. It can order the payment of damages.
b. It can order the specific performance of a contract.
c. It can order payment of penal damages where it is provided for under customary law.
d. It can make an order on issue of costs.
e. Or an order which meets the justice of the case. See s17 of CLLA

ENFORCEMENT OF THE LOCAL COURTS ORDERS.

The judgment of a local court if not satisfied, the person whom the judgment is in favour may
register it for enforcement in the Magistrates Court. The order can be registered in the
jurisdiction of Magistrates court where the local court is located. The order is certified by the
presiding oficer or clerk of the local court should be lodged with the clerk of the Magistrate
Court (See s18 (1) of CLLA) who is empowered to then issue a writ of execution which is
executable by the Messenger of the Magistrates court as if it were a judgment of that court
(S18 (2) of the CLLA).
A writ of execution of a local court judgment is suspended by an appeal to the Magistrates
Court (S18 (3) of the CLLA). The judgment of a local court lapses after two years and can
only be registered if it is revived. The judgment cof a local court may only be revived by the
local court which pronounced it or another local court of competent jurisdiction (S18 (4) (5)
of CLLA).

APPEALS
Appeals from the Primary Court
An appeal from the Primary court lies with the Community court within the jurisdiction
which the Primary Court is located. The appeal hearing is a rehearing and the Community
Court can give any decision it thinks is just (See s23 (1) of CLLCA).
Appeals from Community Court
The appeal from Community Court lies with the Magistrates Court within the jurisdiction
which the Community Court is located. The Magistrate will rehear the matter and gives a
decision he thinks is just. The Magistrate in rehearing the appeal is assisted by two or more
assessors who act in advisory capacity.
Appeals from the Magistrates Court
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A decision of the Magistrate is appellable to the High Court of Zimbabwe.
(See s23, 24 of CLLCA).

REVIEWS
The Magistrates Court has powers to review proceedings of the local courts. The grounds of
review are:
a. If a local court gives a decision it is not competent to give.
b. If it has no jurisdiction to preside over the matter.
c. Where there is violation of principles of natural justice.
The Magistrate shall afford all the parties affected the right to be heard. After hearing the
case the Magistrate may order the following:
1. annul the proceedings and order a hearing de novo before the same local court or another
2. refer the matter to a Magistrate with competent jurisdiction
3. set aside the judgment and return the matter to the same court with directions on how to
proceed.
Only matters which are not more than twelve months old maybe reviewed by the Magistrate.
The party affected by the review order or judgment by a Magistrate court may be ordered to
refund or restitute; A review judgment by a magistrate is subject to appeal like any
Magistrates Court judgment or order to the High Court. (See s25 of CLLCA).

The Magistrates Court

Composition and Location of Court

 Section 6 states that every court shall be presided over by a Magistrate whose role is
to be an impartial adjudicator and render fair and sound judgment.

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

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(a) create regional divisions consisting of one or more provinces or of one or more provinces
and a portion or portions of a province or provinces or of one or more portions of a province
or provinces and declare the name by which any regional division shall be known;
(b) Create provinces and define the boundaries of each of them and declare the name by
which any province shall be known.

In accordance with Section 4 of the MC Act, The Minister may, by statutory instrument—
(a) Establish one or more courts for any regional division;
(b) Appoint one or more places within each regional division for the holding of a court for
that regional division;
(c) Abolish the courts established for any regional division when such regional division has
been abolished.
(2) There shall be one or more courts for each province as the Minister may determine.
(3) The Minister may, by statutory instrument, appoint one or more places within each
province for the holding of a court for that province.

The Constitutional Jurisdiction of Magistrate Courts

In accordance with s162 of the Constitution of Zimbabwe (2013 Constitution), judicial

authority is also vested in the Magistrate Courts.

Role of Assessors

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

Court Officials

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

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

 The Registry Staff

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

 Provincial Magistrate
May only try offences within his or her province.
Section 50 (3)(a)-(b) of the MCA determines the jurisdiction of a provincial
Magistrate, for instance with regards to Maximum sentencing, he or she may impose
5 years or fine up to level 10, whether on summary trial or remittal by AG.

 Messenger of Court ( s22 of the MCA & O 2 of SI 11 OF 2019

- The effect service of process. see Order 2 SI 11 OF 2019
- The messenger is vested with power to execute a writ of execution against
movable property of a judgment debtor. He can also seize, take and sell cheques,
bills of exchange, promissory note etc.
- the messenger can also enforce a writ of execution on immovable property against
a judgment debtor
- The messenger can also whatever is necessary to effect registration of transfer of
immovable property.
- The messenger may also hold any cheques, bills of exchange, promissory notes,
- bonds or securities for money which have been seized or taken as security for the

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 - benefit of the execution creditor for the amount directed to be levied by the
execution
- so far as it is still unsatisfied, and the execution creditor may, when the time for
payment has arrived, sue in the name of the execution debtor or in the name of
any person in whose name the execution debtor might have sued, for the recovery
of the sum secured or made payable thereby.

TYPES OF PROCEDURES IN THE MAGISTRATES COURT

There are two basic forms of proceedings which may be used for instituting proceedings in
the civil courts;

(i) Action – summons, see Order 8 of SI 11 of 2019 and (ii) Application -by way of notice of
application or an affidavit of evidence.

There are circumstances were application procedure is used. For example:

a. Where the statute specifically provides for. See Room Hire Co. v Jeppe Street Mansions
1949 (3) SA 1155, Civil imprisonment etc.

b. There are also cases where it is in the discretion of the person instituting proceedings to
go by way of application or action what should influence a party, particularly if there are
no material disputes of facts. Whether or not there is a material dispute of fact. If there is
a material dispute of fact then don’t use application proceedings. Room Hire Co. v Jeppe
Street Mansion (supra). This was an appeal from the decision of the WLD declaring the
tenancy by the appellant of certain premises belonging to the defendant to be null and
void under the provisions of s8 of Ordinance 46 of 1903. The grounds on which the
tenancy was declared null and void was that the premises were allegedly being used as a
brothel. The court had also ordered the ejectment of the appellant on the premises. The
applicant has resisted the application to eject him on three grounds:

(i) That there was a material dispute of facts which could not be resolved on affidavit
evidence.

(ii) The evidence adduced on the affidavit was insufficient to establish the alleged improper
use of the premises.

(iii) They had been an unqualified acceptance of the rent by the applicant/landlord. It was
argued a waiver of any breach of tenancy.

Held: On the issue of waiver of breach the court held that the facts the respondent had not
been aware of the payment and had tendered return of payment when he became aware of it.
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 It was stated the lease was automatically terminated when realised that the premises were
being used as a brothel. Held: On material dispute of fact for the defendant to allege that
there was a material dispute of fact he must establish a real issue of fact which cannot be
satisfactory determined without the aid of oral evidence. He must not make a bare denial or
merely allege a dispute. The court concluded that the real dispute of fact had been shown and
that the court a quo should have hear oral evidence on the issue in terms of the rules. The
matter was referred back to court a quo for proper exercise of discretion to hear oral
evidence.

With regard to dispute of fact it has been stated in the case law that the court must not
hesitate to decide an issue on affidavit evidence merely because it may be difficulty to do so.
It should adopt a robust view and endeavour to resolve the dispute without the hearing of oral
evidence if this can be done without doing an injustice to either party. See also Soffiantini v
Mould 1956 (4) SA 150 where the appellant was the owner and lessor of certain premises and
the respondent was the lessee. The appellant was interfering with the respondent’s occupation
of the premises. The respondent applied for and was granted an interdict restraining the
appellant from interfering with his occupation of the premises. The appellant appealed
against the granting of interdict in that:

i. There was a genuine dispute of fact which could not be resolved on affidavit evidence.
ii. The Judge a quo should have directed oral evidence to be heard. Held: It is necessary to
make a robust common-sense approach to a dispute on motion (application proceedings)
as otherwise the effective functioning of the court can be harm strung and circumvented by
the most simple and blatant strategy. The court must not hesitate to decide an issue of facts
on affidavit merely because it may be difficult to do so. Justice can be defeated or serious
impeded and delayed by an over fastidious approach to a dispute raised in affidavit.” See
also Joosab & Ors v Shah 1972 (4) SA 298.

c. Application procedure is used normally in interlocutory proceedings i.e for interim reliefs,
interdicts pendete lite.

d. Where the matter is urgent.

What about if there are material facts that cannot be resolved on paper?

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

i. It can dismiss the application.

ii. The court can order the parties to go to trial.
iii.The court can hear oral evidence on the issue in dispute.

Stages of an Action
• Issuing of summons

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

Stages of an Application (Order 22 of S1 11 of 2019).

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

• Interlocutory Procedures

 Interdicts

(a) The applicant should establish a clear right clearly established in law
(b) Applicant should show that he has either suffered actual injury or has a reasonable
apprehension of injury.
(c) Applicant should show that there is no other ordinary remedy by which he or she can be
protected in the same way as by an interdict.

See Setlogelo v Setlogelo 1914 AD 221 at 227

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

Requirements for Interlocutory Interdict

19
(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

Flame Lily Investment Co (Pvt) Ltd v Zimbabwe Salvage and Anor 1980 ZLR 378

In an application for a temporary interdict pendente lite the applicant must show;
1) A clear right on his or her part.
2) Actual or reasonably apprehended injury.
3) No other remedy which he can be protected with the same results.
If the applicant’s rights are not clear, the requisites are different. The applicant must show:
1) A right which, though prima facie established is open to some doubt.
2) A well-grounded apprehension of irreparable injury; and
3) The absence of an ordinary remedy.
In considering the application, the court will consider the prejudice to the applicant is
withheld, against the prejudice to the respondent if it is granted. This is called the balance of
convenience.

The Flame Lily case effectively creates four requirements for a temporary interdict, the fourth
one being the balance of convenience.

Neptune (Pvt) Ltd Venture Enterprises HH 127/89

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

N.B Authorities are the same as in final interdict and also Chikore v Nyamukapa & Ors HH
267/90

Mutarisi v United Family Intl Church & Anor HH-445-12

(Zhou J)

The requirements for an interim or temporary interdict are: (a) That the right which is the
subject matter of the main action and which applicant seeks to protect by means of interim
relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) That,
if the right is only prima facie established, there is a well-grounded apprehension of
irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds
in establishing his right; (c) The balance of convenience favours the granting of interim relief;
and (d) That the applicant has no other satisfactory remedy. Where a clear right is established
an applicant for an interim interdict need not show that he will suffer irreparable harm if the
interdict is not granted. The applicant merely has to show that an injury has been committed
or that there is a reasonable apprehension that an injury will be committed. The words “clear”
and “prima facie” in the context of interdicts relate to the degree of proof required to establish
the right alleged. Whether or not an applicant has a right is a matter of substantive law;
whether that right is clearly or only prima facie established is a question of evidence. The
court has a general discretion to grant or reject a request for an interdict even in
circumstances where the applicant has established the requirements for interim relief
discussed above. The discretion must, of course, be exercised judicially, having regard to all
the facts and circumstances of the case. While a draft order is only a draft and does not bind
the court, it must be based on the case pleaded. It is not a mere formality for applicants to file
20
draft orders in application proceedings. The draft order must properly assist the court as to the
relief being sought by an applicant.

See Stellenbosch Farmers v Stellenvale Winery 1957 (4) SA 234 – (interlocutory interdict).

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 page 1189. The proper manner of approach is to take the facts as set out by the
applicant together with any facts set out by the respondent which the applicant cannot dispute
and consider whether having regard to the inherent probabilities the applicant could on those
facts obtain final relief at a trial. The facts set out in contradiction by the respondent should
then be considered. If serious doubt is thrown on the case of the applicant, he could not
succeed in obtaining temporary relief for his right prima facie established may only be open
to “some doubt”.

APPLICATION FOR RESCISSION OF DEFAULT JUDGEMENT

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

The circumstances in which default judgment may be granted:

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

APPLICATION FOR SPOLIATION ORDER

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

Choice of Proceedings
Application is not permissible unless there is a provision which expressly authorises its use in
the Act or the Rules or some other Statute

Common Terms In The Magistrates Court

 Plaintiff
 Defendant
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 Applicant
 Respondent
 Absolution from the instance
 On a balance of probabilities
 Adversarial system
 Inquisitorial system
 Judgment for Plaintiff
 Judgment for the defendant

What is a Demand?
There are instances where a demand is exercised, and these are:
- Where you want to safeguard the costs of summons. If the plaintiff does not make a
demand serve summons. Upon receipt of the summons the debtor pays, and the
plaintiff will not be entitled to the costs of the summons. The only exception is
where the date of performance of obligation is fixed in terms of the agreement.
- Where a demand is required to complete the cause of action. Examples are by
statute i.e the State Liabilities Act – 60 day notice is required when suing the state.
- By agreement between the parties
- Where a demand is required to place the debtor in mora.

PLEADING OF A DEMAND
It is necessary if the demand was necessary to complete the cause of action.

THE FORM AND CONTENT OF THE DEMAND

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

PRESCRIPTION
General Law claims

Prescription Act, Chapter 8:11 (section 13)

 Debts owed to the state in respect of taxes, royalties, tribute, share of profits – 30
years
 State loans or debts from sale or lease of land by the state – 15 years

23
  Other debts owed to the state or debts arising from bills of exchange or other
negotiable instruments or notarial contracts – 6 years
 Any other debt – 3 years except where an enactment provides otherwise e.g. Section
70 of the Police Act, Chapter 11:10; section 25 of the Road Traffic Act, Chapter
13:11

Customary law claims

There is no prescription for customary law claims

Officers of the court

 Magistrate
 Messenger of Court
 Clerk of Court
 Assessors
 Chief Magistrate
 Interpreters

Locus Standi in judicio

Parties need to have legal capacity to use or defend proceedings. Legal capacity is also
referred to as locus standi and it is bestowed in general on all-natural persons over 18 years
old with the exception of certain category of people who are under legal disability. For
example:

a.Minors - A minor is sued in the name of guardian or in their own name assisted by the
guardian. If there is no guardian, they should seek an order that a curator ad litem be
appointed. The same applies when the interests of the guardian conflicts with those of the
minor child.

b. Mentally Incapacitated-Any proceedings against them are instituted by a curator ad

litem.

c. People declared insolvent: represented by the Trustee.

d. Woman married in community of property: husband institutes the action on behalf of the
woman as she is deemed a minor.

e.Prodigal: it’s a person who is financially irresponsible and is represented by a curator bonis
ad litem.

f. Alien enemies – cannot sue – it’s a person in a country in a declared state of war.

g. Fugitives cannot sue as they are regarded as temporary stripped of their citizenry rights.
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h. MPs cannot be sued in terms of privileges of Immunities Powers Act for acts done in
Parliament within the rules of parliament.

i. Diplomats: Privileges and Immunities Act only in cases of governmental nature

j. President: s98 of the Constitution in his personal capacity. In his official capacity he can be
sued with the leave or permission of the court in terms of Order 6 Rule 1 of the Magistrates
Court (Civil) Rules,1980 (Rules).

k. Judges

In respect of the artificial persons the following have locus standi injudicio if they are
established or incorporated within the laws:

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

There are three (3) elements to be satisfied:

i. It must have an entity which is distinct and separate from its individual members.
ii. It must have perpetual succession – a life which extends beyond the life of its members.
iii. It is capable of owning property separately from its members.

See Morrison v Standard Building Society 1932 AD 229.

The respondent was an incorporated building society which brought an action against the
appellant for ejectment from premises situated in Pretoria and for damages. The appellant
consented amongst other things that the defendant had no locus standi. The argument was
dismissed in the TPD. Held: An association of individual does not always require the special
function of the state in order to enable it to hold property or to use its corporate name whether
or not it can depend on the nature of the association, its constitution, its objectives and
activities. The court concluded that the standard for building society have been formed in
1891 and these activities had not at any time been interfered with. Also, it possessed the
characteristics of a universitas.

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

The applicant was seeking to bring certain companies under judicial management pending the
removal of the respondent as directors of the companies. The respondents raised a point in
25
 limine (in limine – point raised at beginning of proceedings) that the applicant had no locus
standi. The applicant had been registered in 1977 as a welfare organisation under the Welfare
Organisation Act. The Constitution of the applicant gave him among other powers to
purchase and acquire property both movable and immovable and to carry on business with a
view to increasing the revenue of the association and also to institute and defend legal
proceedings. Held: The court found that although conformed to the requirement of common
law universitas, the application should be dismissed because the applicant had not used the
name to its constitution described as the Unified Family. The second reason was that the
deponent of the founding affidavit did not have authority to depose to the affidavit as
required by the Constitution. See also Moloi v St John Apostolic Faith Mission 1954 (3) SA
940

h. Partnerships
i. Interested parties -A person must have an interest in the matter to institute proceedings. It
has been described as direct and substantial interest and real interest.

See Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2)
ZLR 48. The case involved teachers who had been dismissed in terms of the Emerging
Powers Maintenance of Essential Services Regulations SI 160A/89. The Zimbabwe Teachers
Association sought an order seeking (reinforcement of) reinstatement of teachers. Dismissed
teachers were also part of it. The point in limine was whether ZTA had locus standi. The
question was whether the 3 dismissed teachers who sought to be involved in the proceedings
could be joined at that stage. Held: On the first one the court ordered that the teachers had
real and substantial interest in the matter. Secondly three teachers had sufficient interest in
the matter to be joined as parties.

See also Sibanda & NPSL v Mugabe & Anor HH 102/94. Sibanda was the secretary general
of the NPSL. He was suspended by ZIFA and Mugabe was the chairperson. The proceedings
were brought on review by Sibanda on the basis of jurisdiction, interest in the company was
biased, malice and seeking that the decision and punishment reached were unreasonable.The
respondent claimed that the NPSL had no locus standi because it sought no relief and no
order was made against him by ZIFA and therefore its interest in the outcome of the review
was indirect. The response of the NPSL was that they had the interest in the matter because as
its secretary-general Sibanda carried out various functions for it and saw the action against
Sibanda was actually an attack on them. Held: The NPSL had direct and substantial interest
in the matter therefore they had locus standi to institute the review proceedings.

a) Locus standi in terms of s85 (1) of the Constitution of Zimbabwe on constitutional matters.

THE JURISDICTION AND LIMITS THEREOF OF THE MAGISTRATES COURT

The Magistrates Court is a creature of a “statute”. Its jurisdiction is conferred by Law.
Therefore, for jurisdiction one should refer to the Magistrates Court Act and the respective
Civil Rules. It does not have jurisdiction in any case where such jurisdiction is not expressly

26
conferred on it by law, specifically statute. See Hatfield Town Council Board v Mynfred 1962
RN 799. The Magistrates Court has jurisdiction in general and customary law cases subject
to geographical, monetary and subject matter of a case limitations.
A Magistrate Court’s jurisdiction is premised on three aspects; territorial, monetary and cause
of action. These aspects demarcate and limit the jurisdiction of the Magistrates Court.

JURISDICTION BASED ON MONETARY LIMIT

The current monetary limit of claims in the Magistrates Court is RTGS$3 000 000( S.I 227 of
2020). In entertaining claims before it the court’s jurisdiction cannot be ousted merely
because the court looked at any issue that may not be within its jurisdiction. Costs shall not
be considered for the purpose of determining jurisdiction (See s11 (g) of MCA). Further the
plaintiffs are not allowed to split one claim into various summons to bring it within its
jurisdiction (See s11 (j) of MCA), however the plaintiff is allowed to abandon some claim in
order to bring within jurisdiction of a Magistrates court (See s11 (h) of MCA). However,
once abandoned the claim becomes extinguished. If the claim is upheld in part, then
abandonment first takes effect against that part which is not upheld. However, a claim
exceeding the jurisdiction of the Magistrates court may still fall under the Magistrates court if
the plaintiff deducts the amount being consented to or admitted as liable to whether the claim
is liquid or unliquidated claim (See s11 (i) of MCA).

S.I 227 of 2020 Magistrates Court (Civil Jurisdiction)(Monetary Limits) Rules, 2020
Nature of matter Monetary Jurisdiction
Cases founded on liquid documents $3 000 000.00

Actions for delivery or transfer of movable

or immovable property:

maximum value of property $3 000 000.00

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

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

Order of arrest tamquam suspectus de fuga:

minimum amount of cause of action $ 50 000.00

Order of arrest tamquam suspectus de fuga: minimum amount

27
by which applicant’s security must fall short of amount of debt $50 000.00

Order of attachment which applicant’s security must fall

short of amount of debt $50 000.00

Order of attachment of person property to found or confirm jurisdiction

minimum amount of claim or value of matter in dispute $50 000.00

Order for rendering of account: maximum amount of claim $50 000.00

Order for delivery or transfer of property, movable or immovable

maximum value of property. 3000

000.00

NB// Also where parties have consented in their written agreement to the jurisdiction of the
Magistrates court notwithstanding the value involved then they can institute proceedings at
the Magistrates court.

JURISDICTION BASED ON CAUSE OF ACTION

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

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

JURISDICTION BASED ON TERRITORY/GEOGRAPHICAL LOCATION

The Magistrates court has jurisdiction territorially over the following persons:
a.Any person who resides, carries on business or is employed within the province.
b. Any partnership whose business premises are situated in the province or if any member of
the partnership resides in the jurisdiction of the court.
c.On any person who institutes proceedings in the court and any other persons affected by the
proceedings instituted in the Magistrates court.

28
Any person if the cause of action arose wholly within the province. See also B Ex parte
Ministry of Native Affairs 1941 AD 53
See s11(1) (a) of the Magistrates Court Act [MCA].

LIQUID CLAIMS AND LIQUIDATED CLAIMS.

WHAT IS A CLAIM FOR A DEBT OR LIQUIDATED DEMAND?

This is a claim for either a specific amount of money or one that is capable of speedy and
prompt assessment, claim of a specific thing. It is a claim of a debt or liquidated demand
because it was a fixed amount of money and certain.

The following are examples of a debt or liquid claims:

See Fred & Anor v Keelan 1951 SR 7- A claim for an order declaring property especially
hypothecated in a mortgage bond to be executable (sold in execution). The claim was held to
be a claim for a liquidated demand.

i. See also Mohr v Krier 1953 (3) SA 600-The plaintiff was claiming several things- the sum
of 1300 pounds being the balance of amount due in terms of a deed of dissolution of
partnership entered into between the plaintiff and the defendant.
ii. In Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498, a claim for money stolen by
the defendant from plaintiff was held to be a claim for debt or liquidated demand but the
claim for the value of goods stolen by the defendant was held to be unliquidated. See
International Hardwork Cooperation 1971 (1) SA 404.

Reached the same decision that claim for stolen money is a liquidated demand and a debt in
the case Standwin Investment Pvt (Ltd) v Helfer 1961 (4) SA 470.

A claim for the value of goods as an alternative to the return of the goods was held to be a
claim for a debt or liquidated demand. The case involved a claim for the return of a truck
failing of which payment of 500 pounds which was the value of the truck.
An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956 RN 148.

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

Belingwe Stores (Pvt) Ltd v Minyembe 1972 (4) SA 463. A claim for the value of shortfall of
stock as per a written undertaking by the defendant was held to be a claim for a debt or
liquidated demand. The defendant was storekeeper for the plaintiff and signed an
undertaking to pay if there is a shortfall.

Brooks & Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA

29
A claim for confirmation of cancellation of an agreement of sale of certain immovable
property and ejectment of defendant from property was held to be a debt or liquidated
demand.

Atlas Assurance Co. Ltd v Goodman 1955 SR 328. A claim based on a foreign judgment
held to be a claim for a debt or liquidated demand.

Morris v Stern, 1969 RLR 427. A claim for ejectment was held to be a claim for a debt or
liquidated demand.

Dube v Sengwayo HHC 110/91.

A claim for holding over damages in respect of ejectment proceedings was held to be a claim
for a debt or liquidated demand because the damages were easily ascertainable, simply look
at rental value of the property and also the period of which the lessee is an unlawful
occupation.
Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 11.92.

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

The following are claims that require specific performance and are punishable by contempt of
court:

i. an order compelling the defendant to complete and deliver to the plaintiff a promissory note
in the plaintiff’s favour for the sum of 1000 pounds in terms of deed of dissolution of the
partnerships.

ii. an order compelling the defendant to complete and deliver to the plaintiff a stop order
addressed to Tobacco Auctions Ltd authorising the plaintiff to claim 1000 pounds from the
proceeds of the sale of the tobacco for the 1952-53 season.
Claims (a) and (b) although claims for debt or liquidated demand they were also claims for
specific performance and failure to comply with these claims will be punishable by contempt
of court as no official could be substituted for the defendant.

See SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2) SA 131. The plaintiff
applied for default judgement on an endorsed summons in which he claimed;

(1) A statement of account duly supported by vouchers of all premiums received by the
defendant.

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

(3) Payment of money owing to the account.

30
(4) Order directing defendant to disclose all forms of policies in his possession issued by the
plaintiff and delivered to the defendant.

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

See also Midsec (Pvt) Ltd vs Ors v Standage HB 64/94. The claim was for $100 000 payment
based on a document which had been signed by the defendant in which she had admitted that
she had been fiddling the books and stated as follows on the amount owed “I would not know
the exact amount that I would have taken but Mr Rumbold has said that if it is close on to 100
000 which could be about right”. The claim was held to be unliquidated because the amount
owing was not ascertained but merely estimated.

b. In claims for delivery or transfer of movable or immovable property if the value does not
exceed the monetary limit. This is despite the fact that there might be a claim for the
cancellation of any agreement relating to such property.
c.In ejectments actions against the occupier of any house or land or premises provided it’s in
relationship to the right of occupation and the value of the right of occupation does not
exceed the monetary jurisdiction. The value of occupation is obtainable by comparing the
rentals of comparable premises – if there is a difference there will multiply it over unexpired
part of the lease. ADD cost of moving. See Uguahart v Bruce 1974 (1) SA 350. Langham
Court Property v Mavromaty 1954 (3) SA 742 TPD
d. In claims for a decree of divorce, judicial separation, or nullity of a marriage solemnised in
terms of the Customary Marriages Act [05:07].
e.Claims for division, apportionment or distribution of the movable and immovable assets of
spouse or former spouse married under the Customary Marriages Act [CMA].
f. Claim for maintenance of a spouse married under the Customary Marriages Act or claim
for Maintenance in terms of Matrimonial Causes Act [05:13].
g. Claims for guardianship and custody of children marriages solemnized in terms of CMA.
h. Claims for validity, interpretation, effect of oral wills made in terms of s11 of the Wills
Act provided:
1. the testator of the will concerned was resident within the province when made the will or
when he died or
2. The testator of the will was born within the province
3. The majority by number or value, of the beneficiaries under the will resided within the
province when the testator died
4. The will was made within the province
31
5. If the will awards an immovable property, such property ought to be situated within the
province.

i. In all actions not stated herein provided they do not exceed the monetary value of the court
provided the defendant consent if not resident in the province.
j. Where the defendant consented in writing provided the statute allows the court to preside
over such a matter.
k. Where there is a written agreement by the Plaintiff and the defendant to have the
matter heard by the court.
l. The court has jurisdiction on two or more combined claims based on different cause of
action provided the court can try or determine each and every claim independently and
distinctly similarly if the any of the claim has been separately brought before the court.
Splitting the claim is not allowed. However, abandonment of party of a claim is allowed.

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

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

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

o. Claims for arrest tamquam de fuga- No order of arrest tamquam suspectus de fuga
shall be made unless the cause of action appears to amount exclusive of costs to be within the
monetary limits of the court, the applicant appears to have no security for the debt as set in
the rules and if the defendant is about to remove from Zimbabwe. See s12 of the MCA.

p. Claims for interdicts, attachments and mandamentem van spolie- Confirmations by

the court of any attachment or interdict in the judgment in action shall operate as an extension
of the attachment or interdict until execution or further court order of the court. See s12 of the
MCA.

32
q. Claims for attachments to find or confirm jurisdictions-A court may order attachment of a
person or property to found or confirm jurisdiction against a perigrinus provided the court has
jurisdiction over the claim, ie. Having looked at jurisdiction, cause of action and also
monetary value. This excludes the costs. See s13 of the MCA.
r. In cases for adultery claims brought with its monetary jurisdiction it has powers to establish
the fact of the marriage. S14 (1) (i) (a) of the MCA.

s. In cases of claims for maintenance [legitimate or illegitimate child] or any inquiry under the
Maintenance Act determine the question of affiliation. S14 (1) (i) (b) of the MCA.

t. In constitutional matters as a referral court. It may refer valid constitutional matters to the
constitutional court on application by a party. See s175 (4) of the Constitution of Zimbabwe
No 20 of 2013.
u. In commercial disputes.

COUNTER CLAIMS THAT EXCEED JURISDICTION

Where a defendant’s plea or answer to plaintiff’s claim amounts to a counterclaim and the
counterclaim exceeds the jurisdiction of the Magistrate court, the counterclaim shall not be
dismissed. The court if satisfied that the counterclaim prima facie has reasonable prospects it
may make an order for stay of action for a reasonable time to enable the defendant to institute
proceedings in a competent court. The plaintiff may still proceed to become a defendant and
file a counter claim in the competent court. The issue of costs incurred in the Magistrate court
will then be dealt with by the competent court. (See s15 of the MCA).
If the defendant does not act within the period granted by the court for him to file an action in
the court of competent jurisdiction the following may happen on application by plaintiff or
defendant:
a. Stay the action for a further reasonable period
b. Dismiss the counterclaim- whether or not the defendant has reduced the amount to
the limit of the jurisdiction of the court, whether the counterclaim is withdrawn.

33
In the event of abandonment of the counterclaim or the competent court has granted
absolution from the instance the Magistrates court upon application may proceed to dismiss
the counterclaim and determine the plaintiff’s claim.

CIRCUMSTANCES WHERE THE MC HAS NO JURISDICTION

The Magistrates Court has no jurisdiction under the following circumstances:
a. Dissolution of a marriage solemnised in terms of Marriages Act [Chapter 5:11].
b. Dissolution of any marriage save for the marriage solemnised in terms of the
Customary Marriages Act.
c.Separation from bed and board or of goods of spouses of a marriage solemnized in terms of
the Marriages Act [05:07].
d. A declaration of nullity in relation to a marriage solemnized in terms of Marriages Act
[05:11].
e.The validity or interpretation of a written will or any other testamentary document in
question.
f. The status of a person in respect of mental capacity is sought to be affected.
g. An order for specific performance without an alternative for payment of damages.
h. The rendering of an account in respect of which the claim does exceed the monetary limit
of the court.
i. The delivery or transfer of property movable or immovable exceeds the monetary
jurisdiction of the court.
j. An order for a decree of perpetual silence.
k. Provisional sentence
l. Where the order for a declarature is sought as to existing rights, future or contingent right or
obligation without a consequential relief of such a declaration.
m. In interpreting oral wills , or establishing validity of a will made in terms of s11 of the
Wills Act if none of the factors in section 14 (2) of the Magistrates Court exist.
n. In counterclaims that exceeds the monetary jurisdiction of the Magistrates Court.
See S14 (1) and (2) of the Magistrates Court Act.

ACTION PROCEDURE

Summons (Order 8 of S.I 11 OF 2019)

Summons commences action procedure. See O8R1. The summons is supposed to be in form
CIV4 {Order 1 Rule 4(1)}. The summons should call upon the defendant to enter appearance
to defend {see Order 8 Rule 2 (a)}. The defendant will have 7 days to enter an appearance to
defend if he/she resides within the jurisdiction of the court and 14 days if residing outside the
jurisdiction of the court {See O 8 R (2)}. The summons is issued by the clerk of court and it
is mandatory for the summons to bear the date of issue {O8 R (1) (3)}.The original summon
34
is retained by the office of the clerk of court {O 8 R (1) (4)} and is signed by a Legal
Practitioner or the plaintiff although in the case of Municipality, company, or other
incorporated bodies it is signed by the officer responsible and in the case of partnership or
group of persons associated for a common purpose it is signed by a member nominated by
others to sign the summons {See O 8 R 2(1) as read with O 4 R1}.

CONTENTS OF THE SUMMONS

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

Summons with automatic rent interdict – section 38(1) of the Act and Form Civ 8

ISSUING
• Issued by the clerk of court {Order 8 Rule 1(3)}
• Issuing involves;
 Allocation of a case number {Order 3 Rule 1(1)}
 Signing
 Stamping with the official stamp

SERVICE OF PROCESS (ORDER 7)

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

temporarily appointed as messenger by the magistrate or by a police officer (in cases
where no messenger of court has been appointed) – sections 10 (3) and (5) of the Act and
{Order 7 Rule 3 (1}). Failure to comply with this requirement invalidates the service.
Wattle Company (Pvt) Ltd v Inducom (Pvt) Ltd 1993 (2) ZLR 108.

35
• Process is valid throughout Zimbabwe and can be served by any messenger – s23 of the
Act.
• Service of process which does not require service by the messenger of court can be done
by the parties themselves {Order 7 Rule 3 (2)}
• Messenger of court may call upon any police officer to assist him or her if he or she meets
with resistance in serving process – (Order 2 Rule 2)
• Police officer must assist if requested – Commissioner of Police v Rensford and Another
1984 (1) ZLR 202.
• Manner of service. See Order 7 Rule 5
Process in relation to a claim for an order affecting the liberty of the person shall be
served by delivery of a copy thereof to that person personally.

Other process not affecting the person’s liberty can be affected in the following ways:
1) Personal delivery to that person or his duly authorised representative or through
electronic mail
2) Delivery to a responsible person at the Residence or place of business or employment
of the person on whom the service is to be effected or at his chosen address for
service
3) In case of process other than summons or an order of court, by delivery to that
person’s legal practitioner
4) Delivery to the person of the body corporate at the corporate place of business or
registered office e.tc Read the entire Rule 5 of Order 7.
• Delivery at physical address – {Order 7 Rule 5 (2) and Rules 6 and 7}.
 Service of process affecting liberty must be personal – {Order 7 Rule 5 (1)}.
 Postal service – (Order 7 Rule 8).
• Proof of service ( see Order 7 Rule 10 (a) and Form CIV 6A; (
• Return of service by Messenger or Deputy or police officer is prima facie evidence of facts
stated therein – section 24 of the Act, Gundani v Kanyemba 1988 (1) ZLR 226 (S)
• Service of process in proceedings against the state – Order 7 Rule 17.
• Substituted service (Order 7 Rule 14).

SUMMARY PROCEDURES

DEFAULT JUDGEMENT-O.11

Default of appearance or plea

• Plaintiff may apply for default judgment in default of appearance to defend or of plea
• Where there is default of appearance, plaintiff may proceed to file for default judgment
(Order 11 Rule 2)
• Where there is default of plea, plaintiff must first deliver notice to plead before proceeding
to file request for default judgment (if there is no response from the defendant) – (Order
11 Rule 3)
• The procedure for requesting default judgment involves the following:
36
 Written request for default judgment – Form CIV 9
 Original liquid document required – {Order 11 Rule 4 (7)}
 Claims for damages require evidence. The plaintiff may file affidavit and supporting
documents – {Order 11 Rule 4 (5)}
In cases of defective appearance to defend, the clerk of court will require the plaintiff to give
the defendant written notice to rectify the defect and the defendant has 5 days of receipt of
such notice to deliver a memorandum of entry of appearance in due form {Order 11 Rule 4
(2) (a)-(d) and (3)
• No judgment in default of appearance in cases where summons was served by registered
post unless there is proof of delivery {Order 11 Rule 4 (4)}
• Default judgment entered by clerk of court (Order 11 Rule 4(1) (b) or matter referred to
the court.
• Referred to court in the following circumstances:
 Where claim is for damages – Order 11 Rule 4(5)
 Where claim is based on a hire-purchase agreement – Order 11 Rule 4 (6)
 Where clerk of court uses his/her discretion to refer – Order 11 Rule 4 (8) (a)
• In cases of multiple defendants, action may proceed against non-defaulting defendant(s)
{Order 11 Rule 4 (9)}.

JUDGEMENT BY CONSENT [ORDER 11]

• Consent is in writing – {Order 11 Rule 1(1) (a)}
• Defendant may consent to part of the claim – {Order 11 Rule 1(1) (b)}
• If consents to part of the claim, defendant may enter appearance to defend the balance –
{Order 11 Rule 1(4)}
• Not necessary to serve summons if defendant consents before instructions to serve –
Order 11 Rule 1(2)
• Defendant not liable for judgment costs if consents within the dies induciae –{Order 11
Rule 1(3)}
• Original liquid document must be filed by plaintiff before judgment by consent is entered
{Order 11 Rule 4 (7)}
Requisites of a liquid document:
 Must sound in money
 Must be signed by the debtor or authorised representative or deemed by law to be
acknowledged
 Amount of the debt must be fixed and definite and appear on the face of the document.
NB/ no extrinsic evidence allowed.
See section 11(1) (b) (i) of the Act for examples.

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

• Clerk of may court refer to court if he/she has doubts on consent {Order 11 Rule 4 (8) (b)}

37
 See Washaya v Washaya 1989 (2) ZLR 195 (S) on duty of defendant’s legal practitioner.
N.B/. Case from High Court where the equivalent provision is worded differently.
• In cases of multiple defendants, action may proceed against non-consenting defendant(s)
{Order 11 Rule 4 (9)}.

PAYMENT IN COURT [ORDER 13]

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

PAYMENT INTO COURT (TENDER)-O.13

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

An amount paid into court as offer of settlement or tender (and not accepted by the plaintiff)
will only be paid out upon:
38
 Judgment by the court declaring who is entitled to it{Order 13 Rule 8 (a)}or
 The written consent of the parties {Order 13 Rule 8 (b)}.
• In claims for damages, the fact that there has been payment into court in offer of
settlement or tender (rejected by plaintiff) should not be disclosed to the court until the
court has pronounced judgment on the claim (issue of liability and the amount due, if any)
(Order 13 Rule 9)
• Facts will be disclosed before an order of costs is made.
• In all cases, plaintiff shall be penalised in costs if he/she fails to recover more than the
amount that was offered in settlement or tendered (Order 13 Rule 6)
• Unclaimed money paid into court will be returned to the defendant after one (1) year
unless the matter has been set down for trial {Order 13 Rule 10 (1)}
• Will be paid into the Guardian’s Fund if defendant cannot be found {Order 13 Rule 10
(2)}.

EXCEPTION TO SUMMONS OR PLEA-O.14

• Definition: An exception does not raise a defence on the merits but raises a technical
objection to the pleading on the grounds that it is bad in law either because it does not
disclose a cause of action or because it does not disclose a defence.
• Purpose: To force an amendment so that the pleading properly reflects the cause of action
or defence or, failing this, to dispose of the claim or defence.
• Grounds of exception:
• Failure to disclose a claim or defence through:
• Making a claim or defence which is not acceptable at law or omission of an essential
element of the cause of action or defence, see A. Lane v Eagle Holdings (Pvt) Ltd S-126-
1985
• The pleading being vague and embarrassing to an extent that the excepting party does not
know the case he or she has to answer. Vagueness or embarrassment must go to the root
of the claim or defence otherwise must seek further particulars or apply to strike out.
Salzmann v Holmes 1914 AD 152

• Exception to summons heard together with application for summary judgment or set down
separately if no application for summary judgment – (Order 14 Rule 7).
• Exception to plea may be set down for hearing by either party – (Order 16 Rule 15).
• Court will not grant exception unless can prove prejudice – Order 14 Rule 5 (1) (exception
to summons) and Order 16 Rule 12 (1) (exception to plea).
• Can apply for amendment if exception granted – (Order 14 Rule 8 and Order 16 Rule 16)
• Dismissal of claim (Order 14 Rule 8) or judgment for plaintiff (Order 16 Rule 16) if
exception granted and no application for amendment or application for amendment refused.
• Matter proceeds normally if exception dismissed.
39
EXCEPTIONS TO SUMMONS [ORDER 14]

Grounds of exception to summons – (Order 14 Rule 2)

The defendant may except to the summons on one or more of the following grounds only;
(a) That it does not disclose a cause of action.
(b) That it is vague and embarrassing.
(c) That it does not comply with the requirements of order 8.
(d) That it has not been properly served.
(e) That the copy served upon the defendant differs materially from the original.

SPECIAL PLEAS [ORDER 16]

 This type of plea does not raise a defence on the merits but sets out some special or
technical defence.
 The purpose is to delay proceedings (dilatory/plea in abatement) or to put an end to
(quash) proceedings (declinatory/ plea in bar).
• Essential difference between special and exception;
 Defence raised by special plea may be established by evidence outside the summons; On
exception the defence raised must appear ex facie the summons i.e. no extrinsic evidence
allowed
• Examples of special pleas
• Declinatory
– Lack of jurisdiction
• Res judicata (Mvaami (Pvt) Ltd v Standard Finance Ltd 1976 (2) RLR 257; Flood v
Taylor 1978 RLR 230; Owen-Smith v Owen-Smith 1981 ZLR 514; Kawondera v
Mandebvu S-12-2006
• Prescription (Prescription Act, Chapter 8:11)
Examples of special pleas continued
• Dilatory
• Lis alibi pendens
• Lack of locus standi in judicio i.e. legal capacity to institute proceedings (Edward v
Woodnutt NO 1968 (4) SA 184 (R)
•
PROCEDURE

– It must be delivered within same time frame as ordinary plea

– There must be a set down for hearing – (Order 16 Rule 9)

40
SUMMARY JUDGMENT [ORDER 15]

• Purpose is to enable a plaintiff with a clear and unanswerable claim to obtain judgment
without the expense of a trial – Beresford Land Plan v Urquhart 1975(1) RLR 260 or
1975 (3) SA 619
• It denies the defendant the benefit of the fundamental principle of audi alteram partem
therefore it is only granted for clear claims – Chrismar v Stutchbury and Another 1973
(1) RLR 277
• Available for any one or combination of the following claims:
 Claim based on a liquid document.
 Claim for a liquidated amount.
 Claim for specified movable property.
 Claim for ejectment.
(Order 15 Rule 1 (1) (a) – (e)
• Procedure for applying for summary judgment involves:
 Written application on seven (7) days’ notice delivered not more than seven (7)
days after appearance to defend – Order 15 Rule 1(2)
 Affidavit required if the claim is illiquid – Order 15 Rule 1(2)(a)
 Copy of liquid document required if claim is based on a liquid document – Order
15 Rule 1(2)(b)
• Options available to defendant upon application for summary judgment:
 Pay into court – Order 15 Rule 2(1)(a)
 Give security – Order 15 Rule 2(1)(b)
 Satisfy the court by affidavit that he/she has a good prima facie defence
• Meaning of good prima facie defence:
 Triable issue of fact – must allege facts which would constitute a valid defence to
the claim if he succeeded in proving them at trial – Rex v Rhodian Investments
Trust (Pvt) Ltd 1957 (4) SA 632 (SR)
 Triable (arguable) issue of law – Shingadia v Shingadia 1966 RLR 285
• Application of good prima facie defence requirement:
– Jena v Nechipote 1986 (1) ZLR 29
– Dickson v Addison S160/87
• Summary judgment will be entered (in default) if the defendant does not respond to the
application for summary judgment – {Order 15 Rule 3(1)}
• No evidence may be adduced by the plaintiff at the hearing of the application for
summary judgment. The plaintiff’s case will rest on the affidavit filed in support of the
application for summary judgment or the liquid document sued upon – {Order 15 Rule 2
(2) (a)}
• The plaintiff may cross-examine the defendant’s witness(es) if the defendant gives oral
evidence – {Order 15 Rule 2 (2) (b)}
• Court will give leave to defend if defendant pays into court or gives security or satisfies
the court that he/she has a good prima facie defence to the claim – {Order 15 Rule 3 (2)}.
41
• Leave to defend part of the claim may be granted where the defendant satisfies the court
that he/she is entitled to defend part only – {Order 15 Rule 5(b)}
• In cases of multiple defendants, leave to defend may be granted to one and not the
other(s) – {Order 15 Rule 5 (a)}

EXCEPTION TO PLEA-O.16

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

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

PRE-TRIAL PROCEDURES

FURTHER PARTICULARS [Order 12]

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

HOW MUCH PARTICULARS?

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

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

– Total non-compliance – application for an order compelling delivery of further
particulars (Order 33 Rule 1(2).
– Inadequate particulars – request for further and better particulars.
• Consequence of failure to comply with an order compelling delivery of further
particulars:
– Dismissal of plaintiff’s claim
– Default judgment against defendant
{Order 33 Rule 1(3) (a)}
42
PLEA (ORDINARY)

Plea – Time for delivery

• Defendant must deliver plea within 7 days after:
(a) Entry of appearance; or
(b) Delivery of documents or particulars in terms of rule 1 or 2 of Order 12; or
(c) If application for summary judgment is made, the dismissal of such application; or
(d) The making of an order giving leave to defend; or
(e) if exception or motion to strike out is set down for hearing in terms of rule 7 of Order 14,
the dismissal of such exception or motion; or
(f) Any amendment of the summons allowed by the court at the hearing of such exception or
motion;

PLEA – FORM AND CONTENT {Order 16 Rule 1(1)

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

REPLY [Order 17]

• Definition: Plaintiff’s response to the allegations of fact contained in the defendant’s plea.
• Not necessary unless the defendant raises new facts in his/her plea.

Procedure

• Must be delivered within 7 days after delivery of the plea or further particulars to the plea
(Order 17 Rule 1)
• Presumption of denial of facts alleged in the plea if plaintiff does not deliver reply
timeously – (Order 17 Rule 3)
• Rules on plea apply mutatis mutandis to reply – (Order 17 Rule 2)

43
 CLOSE OF PLEADINGS [Order 17]
• Pleadings closed upon delivery of reply or 7 days after delivery of plea if no reply – (Order
17 Rule 4).

DISCOVERY OF DOCUMENTS [Order 18]

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

Procedure
• Written notice to make discovery after close of pleadings – {Order 18 Rule 1(1)}
• Party receiving notice must respond within 7 days by delivering a schedule of documents –
{Order 18 Rule 1(2)}.
• Schedule should separately list documents for which privilege is claimed (Order 18 Rule
1(3) (a) and state the grounds on which privilege is claimed {Order 18 Rule 1(3) (b)}.

PRE-TRIAL CONFERENCE (PTC)

Its purpose is to reach out of court settlement or if no settlement then to identify the issues for
trial and agree on ancillary issues. PTC can be convened in 4 ways;
I. By parties themselves at a mutually convenient time and place – {Order 19 Rule 1(1)}.
II. Before a magistrate by consent of the parties – {Order 19 Rule 1(3)}
III. By the clerk of court (to be held before a magistrate) on the instructions of a magistrate
{Order 19 Rule 1(4)}.
IV. As directed by a magistrate upon application by any party – {Order 19 Rule 1 (6)}

Issues to be discussed include, inter alia,

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

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

• Pre-trial conference minute:
 Drawn by the parties if they hold the pre-trial conference on their own – {Order 19 Rule
1(7)}
 Drawn by the magistrate if pre-trial conference is held before a magistrate – {Order 19
Rule 1(10)}.
• Settlement of any matter in dispute:
– Magistrate may make order embodying the terms of settlement upon application
by the parties – {Order 19 Rule 1(8)}.
• Default at pre-trial conference before a magistrate or failure to comply with directions
given by a magistrate results in dismissal of claim or default judgment – Order 19 Rule
1(11).
44
TRIAL PROCEDURES

Set Down for Trial [Order 19]

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

ORDER OF PRESENTATION OF EVIDENCE

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

TRIAL [ORDER 19]

• Venue: Trial takes place at court-house from which the summons was issued unless the
court orders otherwise – Order 19 Rule 3 as read with section 5(4) of the Act.
• Language and public access: Proceedings to be in English and in open court – section 5 (2)
(a) of the Act. Court may restrict access in terms of the Courts and Adjudicating Authorities
(Publicity Restriction) Act, Chapter 7:04.
• Witnesses must not be present in court before they give evidence. However, the presence in
court of a witness before testimony does not affect the admissibility of his/her evidence but
its credibility.
 Order 19 Rule 4
 S v Ntanjana 1972 (4) SA 635 (E)
• Court may require parties to deal with one issue first and dispose of the whole matter on
that issue – {Order 19 Rule 5(2)}
45
• Court may dispose of matter on issue of law without hearing evidence – {Order 19 Rule
5(4)}
• If the dispute is a question of law and the parties are agreed on the facts, the facts may be
admitted without evidence and the court may then proceed to deal with the dispute of law
– Order 19 Rule 5(3)

ENFORCEMENT OF JUDGMENTS

• Method of enforcement depends on the type of judgment.

• Judgment for payment of money enforced by:
o Warrant/writ of execution against property – sections 20 – 25 of the Act and Order 26 of
the Rules.
o Garnishee order – section 33 of the Act and Order 29 of the Rules.
o Civil imprisonment – sections 26 – 32 of the Act and Order 28 of the Rules.

ENFORCEMENT METHODS

•
• Judgment of ejectment enforced by warrant/writ of ejectment {Order 26 Rule 1 (1) (c)}
• Judgment of delivery of property enforced by warrant/writ of delivery – {Order 26 Rule
1(1) (b)}.
• Order ad factum praestandum enforced by contempt of court (civil) proceedings

LAPSE AND PRESCRIPTION OF JUDGMENT

• Judgment lapses after 2years from the date of judgment – section 20 (4) of the Act.
•Judgment becomes prescribed after 30 years from the date of judgment – section 15 (a) (ii)
of the Prescription Act, Chapter 8:14.

WARRANT/WRIT OF EXECUTION [ORDER 26] READ WITH S20-25 OF THE

MAGISTRATE COURT ACT

The following property is exempt from execution:

• Necessary beds, bedding and clothes of the judgment debtor and his/her family.
• Necessary furniture and household utensils up to a prescribed maximum value.
• Supply of food and drink for one (1) month.
• Necessary tools and implements of trade, tools of cultivation of land up to a prescribed
maximum value.
• Professional books, documents or instruments necessary to the debtor’s calling up to a
maximum prescribed value.
See Section 25 of the Act)

46
• Must execute against movable property before proceeding against immovable property –
section 20 (1) of the Act; Kanyanda v Mazhawidza and others 1992 (1) ZLR 229 (SC).
• Warrant of execution should not be issued before the day following that on which
judgment is given except where judgment was by consent or default – Order 26 Rule 1(7).
• Immovable property which is subject to a preferent claim, e.g. a mortgage bond, must not
be subjected to execution unless:
 The preferent creditor has been served with personal notice of the intended sale in
execution.
 The proceeds of the sale (will be) sufficient to meet the preferent creditor’s claim
in full or the preferent creditor confirms the (intended) sale in writing.
Section 20 (2) of the Act

WARRANT OF EXECUTION (PROCEDURE – MOVABLE PROPERTY)

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

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

WARRANT OF EXECUTION (PROCEDURE)

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

WARRANT OF EXECUTION (PROCEDURE FOR IMMOVABLE PROPERTY)

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

If attached the property is claimed by a third party:

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

GARNISHEE ORDERS [ORDER 29] READ WITH S33 MCA

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

PRELIMINARY NOTICE

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

PROCEDURE

• Ex parte application supported by affidavit – Order 29 Rule 1 (1) as read with Order 29
Rule 1 (2).
• Where application is against the state, notice from the Director SSB or Chief Paymaster
ZNA as the case may be must be annexed to the affidavit – {Order 29 Rule 1(3) (a)}
• Where application is to a court other than that in which judgment was given, a certified
copy of the judgment shall be annexed to the affidavit – {Order 29 Rule 1 (3)}

CIVIL IMPRISONMENT [ORDER 28] READ WITH S26-32 MAG CRT ACT

48
• Available where the judgment debt has remained unsatisfied for 7 clear days or the
judgment debtor has admitted that he/she has no attachable property in open court or the
messenger of court has given a nulla bona return of service – section 26 (1) of the Act.
• Not meant to punish the judgment debtor for failing to pay the debt but is meant to force the
debtor, who has the means to pay the debt but is unwilling to do so to pay.

PROCEDURE

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

CIVIL IMPRISONMENT (SUPERANNUATION OF DECREE)

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

49
 CONTEMPT OF COURT (SECTION 71 OF THE MAGISTRATE COURT ACT)

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

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

APPEALS AND REVIEWS.

RIGHT OF APPEAL [Order 31]

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

PROCEDURE FOR NOTING

• Starts with written request for (written) judgment accompanied by the prescribed fee. The
request should be made within 7 days after judgment {Order 31 Rule 1(1)}.

50
• Magistrate must deliver written judgment to the clerk of court within 14 days of request
{Order 31 Rule 1(1)}.
• A written judgment must set out:
 The facts found to be proved.
 The reasons for judgment.
{Order 31 Rule 1(1) (a) and (b)}
• Magistrate must date the judgment and clerk of court must date stamp it – Murawa v Valeta
1996 (1) ZLR 1 (SC)
• Clerk of court must notify the party who applied for the written judgment of its availability
forthwith – {Order 31 Rule 1(2)}.
• An appeal must be noted within:
 21 days after the date of judgment.
 14 days after delivery of the written judgment to the clerk of court by the magistrate
whichever is longer.
{Order 31 Rule 2(1)}

• Appellant must seek condonation of late noting of appeal if out of time – Murawa v Valeta
1996 (1) ZLR 1 (SC).
• Appeal noted by:
 Delivery of notice; and
 Giving security for the respondent’s costs (prescribed amount) or written undertaking to
pay (if accepted by the clerk of court).
(Order 31 Rule 2(2)
• Notice of appeal must state:
 whether the whole or part only of the judgment or order is appealed against and, if part
only, then what part; and
 The grounds of appeal, specifying the findings of fact or rulings of law appealed against.
(Order 31 Rule 2(4) (a) and (b)
• Respondent may abandon the judgment appealed against wholly or in part except in
defamation or seduction cases – section 41 of the Act as read with Order 31 Rule 6
•Respondent may cross-appeal – {Order 31 Rule 2 (3)}
•Magistrate to give reasons for judgment that specifically address the findings of fact and/or
any ruling of law appealed against – Order 31 Rule 3 (1) (a)–(c).
•Clerk of court to prepare record as soon as reasonably possible after noting of appeal and
lodge it with the Registrar of the High Court – {Order 31 Rule 5 (1)}.
•Requirements for the format of the record are set out in Order 31 Rule 5 (2) (10).

EXECUTION PENDING APPEAL

• The MC may order execution of the judgment despite the noting of an appeal upon
application by the judgment creditor – section 40 (3) of the Act.
51
•Court takes into account the following factors in deciding whether to permit execution
pending appeal or not:
 Possibility of irreparable harm or prejudice.
 The prospects of success on appeal.
 Balance of hardship.
Dabengwa and Another v Minister of Home Affairs and Others 1982 (1) ZLR 61 (HC)

REVIEWS O31

PREPARATION AND LODGING OF REVIEW RECORD

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

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

The application to the Constitutional Court shall be made:

 in Form CCZ 4
 shall be accompanied by a copy of record of proceedings
 affidavits or statements from the parties setting out the argument they seek to make
before the Court (R3)

52
The magistrate shall direct the Clerk of Court to prepare and transmit the record of
proceedings to the Registrar of the Constitutional Court within 14 days of the date of such
direction.

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

A constitutional matter according to section 332 of the Constitution means any matter in
which there is an issue involving the interpretation, protection or enforcement of the
Constitution.
This means that a matter can be referred to the Constitutional Court from the Magistrate
Court if any Constitutional matter arise during the proceedings.

Nyagura v Lanzani Ncube N.O & Others (CCZ 7/19 Const. Application No. CCZ 53/18)
[2019] ZWCC 07 (06 March 2019)

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

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

A constitutional matter, as defined in s 332 of the Constitution, must arise or be raised in the
proceedings in the subordinate court. The person presiding the Court may, if he or she is of
the view that the determination of the constitutional issue by the Court is necessary for the
purposes of the proceedings before him or her, mero motu refer the matter to the Court. If the
matter is raised by any party to the proceedings, there must be a request by that party or any
other party that the matter be referred to the Court for determination.
If the presiding person is of the view that the determination of the constitutional matter by the
Court is necessary for the purposes of the proceedings and that the request for a referral is not
frivolous or vexatious, he or she is obliged to refer the matter to the Court for determination.
If the presiding person is of the opinion that the request for a referral is frivolous or
vexatious, he or she shall refuse the request.

There must be a moment in the procedure set out in s 175(4) of the Constitution when the
presiding person must address his or her mind to factors that answer a number of questions,
such as whether what is raised is a constitutional question, whether the request to refer the
matter to the Court is frivolous or vexatious, and whether the determination by the Court is
necessary for the purpose of the proceedings before him or her. There must be evidence that a
request for a referral of a constitutional matter to the Court was made to the presiding person.

53
It is not compliance with the requirements of the procedure of referral of a constitutional
matter to the Court prescribed under s 175(4) of the Constitution to say the constitutional
question was raised and the presiding person declined to refer it to the Court. The reason is
that it is the request to refer a constitutional question to the Court which must have been
found to be frivolous or vexatious. It is not the constitutional matter itself that has to be found
to be frivolous or vexatious.

THE MAINTENANCE COURT

See the Maintenance Act Chapter 5:09
• Every Magistrate Court is Maintenance Court within its area of jurisdiction; see section 3 of
the Act. However, the Maintenance Act is a separate court with its own jurisdiction and
procedure (see Maintenance (General) Regulations 1988).
•A Maintenance Court’s main function is to determine claims for maintenance by or on
behalf of dependants against responsible persons.
•‘Responsible person’ means a person who is legally liable to maintain another – section 2 of
the Act.
• Husbands and wives are legally liable to maintain each other regardless of whether they are
married under general law or customary law, see section 6 (3) (a) of the Act.
• Parents, including those married customarily, are jointly liable to maintain their children,
see section 6 (3) (b) of the Act.

PROCEDURE

• Complaint on oath (affidavit) by dependant or someone with custody of dependant –

section 4 (1) of the Act and form M1 of the Regulations.
• Affidavit must set out the following:
 The grounds on which the Respondent is liable to maintain the dependant e.g. marriage or
paternity.
 The list of expenses of the dependant and the applicant’s (complainant’s) income and
expenses where appropriate.
54
  Particulars of failure or neglect to provide reasonable maintenance.
• Maintenance officer issues summons – section 4 (1) of the Act and form M2 of the
Regulations.
• Affidavit by Applicant must be attached to summons – form M2 of the Regulations
• Summons served by the police (section 29(1) of the Act) or by the messenger of court.
• Respondent responds by notice of income, dependants and expenses – form M3 of the
Regulations.
• Court conducts inquiry into complaint on the day specified in the summons –section 5 (1)
of the Act.
• Inquiry conducted in a manner best fitted to do substantial justice – section 13 (b) of the
Act; Zimunya v Zimunya HH387/84.
• Any person may be represented by a legal practitioner – section 13 (a) of the Act;
• Court has power to subpoena witnesses and call for production of books and documents –
section 13 (c) of the Act.
• Court shall have regard to the following in making order:
i. The general standard of living of the responsible person and the dependant, including their
social status;
ii. The means of the responsible person and the dependant;
iii. The number of persons to be supported;
iv. Whether the dependant or any of his parents is able to work and, if so, whether it is
desirable that he or she should do so.
See Section 6(4) (a-d) of the Act
• Court makes order after inquiry (section 6(1) of the Act) if satisfied that the respondent is
liable, is able to contribute and fails or neglects to do so (section 6(2) of the Act);
• Court may make direction against employer if employer had prior notice and opportunity to
show cause why direction should not be made or consents to direction – section 6 (5) of the
Act;
•Direction may be made against the state provided notice given in the prescribed manner –
section 6 (7) of the Act;
•Court may direct that payment should be made through the clerk of court – section 6 (6) of
the Act.

MAINTENANCE (APPEAL AGAINST ORDER)

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

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

MAINTENANCE (PAYMENT THROUGH THE CLERK OF COURT AND

TRANSMISSION OF ORDER)

55
• A party in whose favour an order has been made may apply for an order to have future
payments made through the clerk of the Maintenance Court – section 19 of the Act;
• The clerk of court may transmit order to the province where the responsible person is
residing – section 20 of the Act.

ENFORCEMENT OF ORDER

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

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

DIRECTION AGAINST AN EMPLOYER;

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

EMPLOYER’S OBLIGATIONS IN RELATION TO DIRECTION:

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

EMPLOYER’S OBLIGATION IN RELATION TO DIRECTION CONTINUED:

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

•Must notify the clerk of the Maintenance Court within 7days if responsible person is
discharged or terminates employment – section 21 (1) of the Act. Failure to do so is a
criminal offence – section 21 (3) of the Act.

REHEARING, RESCISSION, VARIATION OF ORDER MADE IN ONE’S ABSENCE

The following are some of the applications that can be made in terms of section 12 of the Act:
• Applicant can apply for rehearing of application that was dismissed in her/his absence.
• Respondent can apply for rescission of an order granted in default if he/she wants to show
that he/she is not liable or is already providing maintenance.
56
• Respondent may apply for variation of order granted in default if he/she does not dispute
liability but cannot afford the amount awarded.

VARIATION OF ORDER DUE TO CHANGE IN CIRCUMSTANCES

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

REGISTRATION OF ORDERS FROM THE HIGH COURT

The parties may register maintenance orders granted by the High Court in the Maintenance
Court so that they can be enforced or varied through the Maintenance Court – section 18 of
the Act.

TERMINATION OF ORDERS (AUTOMATIC)

• In respect of a child – section 11(1) of the Act.
• In respect of a spouse – section 11(3) of the Act.

ENFORCEMENT OF ORDERS OUTSIDE ZIMBABWE

Maintenance orders may be enforced in specified countries on a reciprocal basis;

Maintenance Orders (Facilitation for Enforcement) Act Chapter 5:10.

APPLICATION (MOTION) TO STRIKE OUT

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

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

CLAIM IN RECONVENTION (COUNTERCLAIM)

57
Definition: This is the defendant’s claim against the plaintiff
• Rules on claim in convention apply mutatis mutandis except:
Not necessary for plaintiff to enter appearance – delivers plea if intends to defend the claim in
reconvention
Times that run from appearance run from date of delivery of claim (Order 9 Rule 1)
• Defendant may make any claim in reconvention whether:
(a) liquid or illiquid; or
(b) liquidated or unliquidated; or
(c) it arises out of or is connected with the subject-matter of the claim in convention or not;
• Claim in reconvention must be delivered within 7 days after appearance and provide the
same particulars as summons – {Order 9 Rule 2}
• Claim in reconvention shall not prejudice the plaintiff’s right to apply for summary
judgment – {Order 9 Rule 4}
• Claim in reconvention within the jurisdiction will be treated as a cross-action and the
court will pronounce judgment on both in the same action – {Order 9 Rule 3(1)}.
• Claim in reconvention and claim in convention may be tried separately but judgment
must be given pari passu.

CLAIM IN RECONVENTION IN EXCESS OF JURISDICTION

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

PRIVILEGE
• Types of privilege that can be claimed include:

• Legal professional privilege which covers;

 all communication between a legal practitioner and his/her client.

58
 Any document prepared for the purpose of existing or contemplated litigation and with a
bona fide intention of laying it before a legal practitioner for the purpose of obtaining
his/her advice or to enable him/her to conduct the client’s case.
– Kerwin v Jones 1957 R&N 432 or 1957 (3) SA 181 (SR)
– Boyce v Ocean Accident Guarantee Corporation Ltd 1965 RLR (668)

STATE PRIVILEGE:

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

MARITAL PRIVILEDGE
It is claimed by parties in a marriage

Consequences of failure to disclose document:

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

STEPS OF A TRIAL

• Where the burden of proof on all issues is on the plaintiff the trial proceeds in the following
order:
o Opening address – Order 19 Rule 5(1)
o Adduction of evidence by the plaintiff – each witness normally goes through:
1. Examination in chief
2. Cross-examination
3. Re-examination
• Chronological order of trial where burden of proof is on plaintiff continued:
1. Close of plaintiff’s case.

59
 2. Adduction of evidence by the defendant (examination-in-chief, cross-examination
and re-examination of each witness).
3. Close of the defendant’s case.
4. Closing address – Order 19 Rule 6 (8)
5. Judgment.

ABSOLUTION FROM THE INSTANCE

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

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

RECALLING OF A WITNESS

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

RE-OPENING OF CASE

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

Small Claims Courts

 Jurisdiction

 In accordance with s 9 of the Small Claim Court Act, small claims court shall be the
province for which it is established. It follows that in terms of s 10 , the small claims
court is vested with jurisdiction in respect of :
a) Any person who resides or carries business or is employed in that province
b) Any person in respect of any person of any cause of action that arose within its province;
c) Any person whether or he resides, carries on business, or is employed within the
province, if he appears before the court and does not object to the jurisdiction.
d) Any person in respect of any proceedings incidental to any action instituted in the court
by that person.
N.B The small claims court shall not have jurisdiction in matters which the State or a Vice
President or Minister or any Deputy Minister, officer or employee of the State is a party in his
official capacity. See s 10 (2) of the Small Claims Court Act.

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Also, Small Claims Court subject to the Act, shall have jurisdiction in respect of liquid claims
not exceeding $1000 and movable property not exceeding $1000. See s11 of the Small
Claims Court Act.

Small Claims Court shall exclusively have no jurisdiction over the following:

a) Any case where the claim is made under customary law;

b) Claims for divorce, custody, maintenance other than arrear maintenance, or ;
c) Cases involving the validity or interpretation of a will
d) Cases in which damages are sought for
i. Defamation
ii. Malicious prosecution or wrongful imprisonment or arrest or
iii. Adultery, seduction or breach of promise to marry or ;
iv. Any case in which an interdict is sought.
S 18 provides that an agreement to oust jurisdiction of the Small Claims Court is invalid and
has no force of law.

S 16 provides that where the small claims court has no jurisdiction consent by parties to
submit to the jurisdiction is invalid and cannot be enforced.
NB. It is vital to note that now lawyers are allowed to represent their clients in the Small
Claims Court unlike before where only self-actors were allowed.

COMPOSITION OF THE COURT

The small claims court is presided by a magistrate of the province concerned or an officer
appointed by the Minister in case of a small claims court established in terms of paragraph (a)
subsection 1 of section 3.

See section 7 of the Small Claims Court.

 In terms of section 8, the Judicial Service Commission at the request of the Minister
appoint:

i. a clerk of a small claims court

ii. a legal assistant in a small claims court.

PROCEDURE AND HEARINGS (SS19-23 OF THE ACT)

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 It is trite law that the small claims court is not bound to strictly adhere to the rules of
Evidence and thus the court may ascertain relevant facts by any discretionary means
that promotes the interests of Justice.

 The procedure employed in hearing in small claims court is to greater extent

inquisitorial in nature. For instance, the presiding officer may terminate cross-
examination when he or she purports that is:

i. Unfair;

ii. Oppressive;

iii. Unduly prolonged or unnecessary.

 Further, the adducing of evidence and calling of witnesses is the discretion or at the
direction of the presiding officer.

 Evidence is either given under oath or affirmation.

 The action is commenced by letter of demand delivered personally or by registered

post by the plaintiff to the defendant.

 When the defendant has received the letter of demand, he or she has 14 days to satisfy
the claim failure to do so the matter will then be heard in Court.

 If the defendant fails to satisfy the plaintiff’s claim within 14 days, the plaintiff may
request the clerk of the small claims court to issue summons to the defendant.

 Summons will only be issued by the clerk of the small claims court, if the clerk of the
small claims court is satisfied that the letter of demand has been served on the
defendant.

 The summons must specify the claim and the date on which, and place at which, the
defendant is required to attend the small claims court for the determination of the
claim.

 The defendant after receiving the summons before the date for determination the
claim lodge with clerk of the small claims court two copies of a written statement
setting out any defence to the claim.

 If the defendant has any counter claim, he or she may lodge with the clerk of the court
two copies of a notice setting out his counter claim and it shall be the responsibility of
the clerk of the court to deliver the notice to the plaintiff as soon as reasonably
possible.

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  The defendant may at any time before the determination of the claim offer a settle the
claim in whole or in part. If the settlement offer is accepted, the plaintiff shall
withdraw his action in the small claims court by notifying the clerk of the court.

 The plaintiff may opt at any stage to withdraw his action against the defendant.

PRINCIPLES OF NATURAL JUSTICE IN HEARINGS.

Each party has the right to adduce and challenge evidence.

ENFORCEMENT OF JUDGMENTS (SS24-27)

The small claims after determining the action may:

1) Give the judgment of the claim in part or in whole;

2) Give judgment of the counter-claim to the extent that it has been proved;

3) Dismiss the claim

 Default judgment can also be given against the defendant fails to appear before the
court.

 The small claims can also give judgment based on consent of the plaintiff and
defendant.

 The court may for a good shown cause shown

i. rescind, vary any judgment granted in the absence of any party

ii. rescind, vary any judgment obtained by fraud or due to mistake;

iii. correct any patent errors in any judgment

 The small claims court is also vested with authority to award costs to either party if it
is just and fair to do so.

 Costs awarded are limited to:

i. Prescribed fee for the issue of summons and

ii. The fees and expenses of the messenger

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ENFORCEMENT OF JUDGMENT

The judgment creditor subject to payment of the prescribed messenger’s fee to enforce
judgment in two ways:

1. Writ of execution (SEE, Order 26 of SI 11 OF 2019 & S20 of MC Act ) and ;

2. Garnishee order (SEE, section 33 of the MC Act& Order 29 of SI 11 OF 2019

NOTABLE CHANGES TO THE NEW S.I 11 OF 2019

See-Electronic Service O7 R12. Any process may be transmitted by telegraph, telefacsimile

or electronic mail and other electronic methods and shall have the same effect as if the
original had been served.

See; Cleminson v Sher & Another (X REF HC 1508/14) [2015] ZWBHC 37 (25 February
2015);

See-Barring process which used to be a process of the High Court only.

Chamber Application

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