LB206 and BPL 206

CIVIL PROCEDURE LB 206 (EXTRACTS FROM PRINCIPLES OF CIVIL PROCEDURE IN

ZIMBABWE BY RODGERS MATSIKIDZE
LECTURE 1 :
INTRODUCTION
TO CIVIL
PROCEDURE
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.
 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.
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.
 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
 
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”.
RIGHT OF ACCESS TO JUSTICE
 
ACCESS TO COURT
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.
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 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.
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?
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
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.