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LB206 2011 11
LB206 2011 11
INSTRUCTIONS TO CANDIDATES
1. Answer ALL questions. The marks allocated for each question are shown
in brackets.
3. You are required to cite the relevant case or statutory authority wherever
appropriate.
Question I
Daniel and Chipo are from neighbouring villages. They were born
there and grew up together. They attended the same primary and
secondary schools. Their parents are communal farmers. Chipo was
not formally employed after completing her O ’Levels and never left the
village except for a few visits to her aunt who lives in Gweru. She met
her husband during one of these visits. Daniel was also not formally
employed after O’ Level and assisted his parents in their farming. He
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acquired a small-scale mine near Shurugwi town in February 2009. He
lives at the mine although he visits his parents frequently.
Last month Daniel approached Chipo’s parents and asked for custody
of Thulani. They consulted Chipo and she agreed that he can have
custody. However Mr Takura demanded that Daniel should first pay
him $1000,00 as compensation for looking after Thulani. Daniel
refused to pay and the dispute has been referred to Chief Nhema’s
community court.
What advice would you give him? Explain your answer fully. [8]
What is the next procedural step that you should take on behalf of your
client in order to take the matter forward? [2]
d) When does a judgment of the Magistrates Court for the payment of money
become superannuated? [2]
Question 2
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So extraordinary an invasion of a basic tenet of natural justice will not
lightly be resorted to, and it is well established that it is only when all the
proposed defences to the Plaintiff’s claim are clearly unarguable both in
fact and in law, that this drastic relief will be afforded to a Plaintiff.
REQUIRED
Question 3
a) Mr. Pass sued Mr. Tight for specific performance of a contract involving
US$5 000.00 in the Magistrates Court at Rusape. Both Mr. Pass and Mr.
Tight have signed a Memorandum consenting to the Magistrates’ court
Rusape hearing the matter.
Should the Magistrate hear the matter? Give reasons for your answer [4]
b) Explain the meaning of the phrase “cause of action” (section 11(1)(a) (iv)
of the Magistrates Court Act) as defined by the Courts.
[2]
Briefly explain your decision if you were the Presiding Magistrate. [2]
Question 4
c) Explain two circumstances under which a Plaintiff can apply for default
judgment without proceeding to trial. [3]
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e) Mr. Nhamochaiyo sued Mr. Zvemahara in the Magistrates Court in
Chipinge for a US$500.00 debt. He knows that Mr. Zvemahara is his
sister’s neighbour in Gaza Township in Chipinge. Mr. Nhamochaiyo asked
his sister to serve the summons on Mr. Zvemahara because he did not
have money to pay the Messenger of Court to serve the defendant. His
sister agreed and served the summons at Mr. Zvemahara’s residence by
handing a copy to Mr. Zvemahara. Immediately after perusing the
summons, Mr. Zvemahara informed Mr. Nhamochaiyo’s sister that he had
since paid the debt and he would defend the action. Mr. Nhamochaiyo’s
sister thereafter confirmed service in writing by way of a letter to Mr.
Nhamochaiyo. A day after receiving the summons Mr. Zvemahara
collapsed and died. Mr. Nhamochaiyo went to court after nine days of the
service of the summons and informed the Magistrate that the defendant
had died a day after the summons was served on him. He tendered the
letter authored by his sister confirming service on the Defendant and
thereafter argued that the case should be heard. He applied for default
judgment. The Magistrate refused his application and postponed the
matter indefinitely until various procedural issues she raised hereunder
were clarified. Mr. Nhamochaiyo approaches you for advice.
REQUIRED
What advice should you give him on the following issues raised by the
Magistrate?
Question 5
i) What method would you use to enforce the judgment debt and why?
[2]
ii) Briefly outline in chronological order the procedural steps involved in
giving effect to the method referred to in (i) above. [10]
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b) An order for maintenance for a minor child in the sum of $75,00 per month
was made against Peter Moyo by the Maintenance Court, Harare. The
summons was served on the receptionist at his work place in Harare
whilst he was on an assignment outside Harare. The receptionist forgot to
give the summons to him on his return. He only became aware of the
order when he met his child’s mother in town last week and she told him
she had obtained the order the previous week. Peter admits that he has
an obligation to maintain the child but he cannot afford $75,00 per month.
He earns a net salary of $240,00 and supports his unemployed wife and
two minor children born of his marriage.
Outline and explain the procedural steps that Peter would have to take in
order to resolve his predicament. [8]