CIVIL PRACTICE AND PROCEDURE MANUAL

FOR LEGAL PRACTITIONERS

A REVISION GUIDE

LAW SOCIETY OF ZIMBABWE

2014

This manual serves as a general guide to aid in the revision of civil practice and procedure for legal
practitioners. It is aimed at providing precise definitions and clear examples for ease of
understanding and revision.
 CONTENTS

CHAPTER 1 1

The Procedure of the Magistrates Court 1

Jurisdiction 1
Limits to Jurisdiction 2

Issuing and Service of Documents 3

Service of Process 3

Summary Procedures 4
Default Judgment [Order 11] 5
Exceptions 5
Several defendants 5
Consent to Judgment [Order 11] 5
Payment into Court [Order 13] 6
Exception to Summons 7
Grounds of exception to a summons 7
Procedure for raising an exception 7
Special Pleas 8
Procedure 8
Summary Judgment [Order 15] 9
Procedure 9
Exception to Plea [Order 16] 10

Pretrial Procedures 10
Request for Further Particulars to Summons [Order 12] 10
Plea [Order 16] 11
Request for Further Particulars to Plea [Order 12] 12
Reply [Order 17] 12
Closure of Pleadings [Order 17 R4] 12
The effect of closure of pleadings 12
Discovery of Documents [Order 18] 12
Pretrial Conference [Order 19] 13
Request for Further Particulars for the Purposes of Trial [Order 12] 14
Further particulars to any pleadings 14
Supply of copies of documents and inspection of originals 14

Trial Procedures [Order 19] 15

Set Down [R2] 15
Presentation of evidence 15
Order of leading evidence 15
Judgment 16

Enforcement of Judgment 16
Warrant of Execution 16
Garnishee Order 18
Procedure 18
Civil Imprisonment 19
Suspended orders 20
 Costs 20

Rescission of Judgment 21
Appeals [Order 31] 21
Right of Appeal 21
Noting of Appeal 21
Execution of Judgment Pending Appeal 22

CHAPTER 2 22

The Procedure of the Maintenance Court 22

Application for Maintenance Orders 22
Procedure for Bringing a Maintenance Claim 22
Execution of Judgment Pending Appeal 23

Enforcement of Maintenance Orders 23

CHAPTER 3 24

The Procedure of the High Court 24

Jurisdiction 24
Inherent jurisdiction 24
Statutory limitations on jurisdiction 25
Common law limitations 26
General Principles 26
Principles of common law on the which jurisdiction of High Court is exercised 26

Jurisdiction in Particular Proceedings 26

Claims Sounding in Money (for Payment of Money) 26
Incola plaintiff v peregrine defendant 26
Peregrine plaintiff v peregrine defendant 27
Artificial persons 28
Claims Relating to Property 28
Matrimonial Matters 28

Parties 30
Legal Capacity 30
Natural persons 30
Artificial persons 31
Specific capacity to institute or defend particular proceedings 32

Form of Proceedings 32
Instances Where Application Proceedings Are Not Permissible 32
Instances Where Application Must Be Used 32
Instances Where Application Procedure Permissible but Not Essential 32
Procedure where dispute of fact arises in application 32
Advantages and disadvantages of alternative procedures 33

Proceedings by Way of Action 33

Commencement of Proceedings 33
Demand 33
 Pleading of demand 33
Form and contents of demand 33
Summons [Order 3 R9–12, 14–16 and 19 of High Court Rules] 33
The contents of the summons 33
What is a claim for a debt or liquidated demand? 34
Declaration [Order 17] 35
Service 35
Service within jurisdiction 36
Service outside jurisdiction 36

Further Procedure When Action is Uncontested 36

Judgment by Consent 36
Judgment in Default 37
Claim for debt or liquidated demand 37
Claim not for debt or liquidated demand 37
Default at trial 37
Uncontested Divorce Order 37
Issues relevant either using general and special summons. 38
Application for Rescission of Judgment 39

Further Procedure When Action Contested 39

Appearance to Defend [Order 7 R 48–49] 39
Plaintiff’s Declaration 40
Defendant’s Plea [Order 18] 40
Special Plea 41
Actual procedure for filing pleas 41
Defendant’s Claim in Reconvention [Order 18] 41
Plaintiff’s Replication [Order 19] 42
Subsequent Pleadings 42
Closure of Pleadings [Order16] 42
Significance of closure of pleadings 42
Discovery of Documents 43
Pretrial Conference [Order 26] 44
Special procedure for Harare in terms of practice direction 1995 46
Set Down 47
Trial [Order 49] 47
Presentation of evidence 48
Postponement (Adjournment of Trial Proceedings R445) 49

Other Common Procedures Arising During Contested Actions 49

Procedure of Barring [Order 12] 49
Removal of the bar 49
Requests for Further Particulars [Order21 R137(1)(d)] 50
Procedure [Form No. 12) [R137(2)]. 51
Application to Strike Out [Order 27 R137(1)(c)] 51
Exceptions 52
Procedure for excepting [021 R137(1)(b)] 53
Payment into Court 53
Application for Summary Judgment 54
Procedure [Order10] 54
Application for Dismissal of Action 56
What is meant by frivolous or vexatious? 56
 Powers of the court 57
Amendment of Pleadings [Order 20] 57

Proceedings by Way of Application 58

On Notice or Ex Parte 58
Court Application or Chamber Application 59
General rules applying to court and chamber applications [R227] 59
Procedure for Court Application 60
Procedure for Chamber Application 61
The powers of the judge in chamber application 62

Miscellaneous Procedures 62
Provisional Sentence 62
Requirements to be satisfied 63
Interpleader 64
Procedure 64
Powers of the court [R210(2)] 65
How does the court decide who has onus? 65
Arrest tamquam Suspectus De Fuga [Order 36] 66
Purpose of arrest 66
Procedure 66
When respondent can be released [R283, 284, 290 and 292] 66
In Forma Pauperis [Order 44] 67
Procedure: 67
Review 67
Purpose 67
Jurisdiction to review 67
Differences between an appeal and a review 67
Grounds for review 67
Power of court 68
Procedure: 68

Costs 68
General 68
Main categories of costs 68
Others categories of costs 68
Rules in relation to award of costs 69
Security for Costs 69
When can security for costs may be ordered 69
Procedure 69
Taxation of Costs [Order 69
When taxation is necessary 70
Procedure 70
Cost allowed on taxation 70

Execution/enforcement 70
Writ of Execution 70
General 70
Garnishee Orders [Order 42] 72
Requirements 72
Procedure 72
Civil Imprisonment [Order 41] 72
 Contempt of Court 73
Civil contempt 73
Procedure 73

Appeals 73
Procedure for Noting and Prosecution of Appeals from the Magistrates Court 73

CHAPTER 4 74

The Procedure of the Supreme Court 74

Which Judgments or Orders Can Be Appealed Against? 74
Procedure for Appeal 74
Procedure for Noting Appeal 74
Record of Proceedings and Security for Costs 75
Powers of the Supreme Court on Appeal 75
Miscellaneous Matters Relating to Appeals from the High Court 75
Execution of judgment pending appeal 75
New evidence on appeal 76
Amendment of proceedings on appeal 76
Renunciation of agency by legal practitioner [R12A of the SC] 76
Special orders as to costs 76

ANNEX 1 76

Supreme Court of Zimbabwe PRACTICE NOTE No. 1 OF 2013 The Chief Justice, the Honourable Mr Justice G.
G. Chidyausiku, has issued the following practice note 76

CHAPTER 5 COUNCIL FOR LEGAL EDUCATION CIVIL PRACTICE AND PROCEDURE

EXAMINATION 77

I The Procedure of the Magistrates Court 77

II The Procedure of the Maintenance Court 78
III The Procedure of the High Court Jurisdiction 78
IV The Procedure of the Supreme Court 80
CHAPTER 1
The Procedure of the Magistrates Court
Jurisdiction
Every magistrates court has jurisdiction at general or customary law in terms of s11(1) of the
Magistrates Court Act [Chapter 7:10] to hear civil matters.
In civil cases magistrates courts have jurisdiction in the following circumstances:
1. Persons: s11(1)(a)
(i) Any person residing, carrying on business or employed within the province
(ii) Any partnership with business premises or any member that resides within the province
(iii) Any person in respect of any proceedings incidental to any action/proceedings instituted
within the court by such person; that is, by bringing an action before the magistrates court the
plaintiff would have submitted to the jurisdiction of the magistrates court
(iv) Any person, regardless of where he resides/carries on business/is employed, if the cause
of action arose wholly within the province
2. Causes of action: s11(1)(b)
(i) Liquid claims in the amount prescribed by the rules together with interest thereon (See
also s11(1)(g) on interest + costs) ($10 000 maximum value)
(ii) Delivery/transfer/cancellation of agreement for any property where the value is in the
amount prescribed by the rules ($10 000 maximum value)
(iii) Ejectment, unless the right to occupation exceeds the value prescribed by the rules ($10
000 maximum value)
(iv) Matrimonial or maintenance matters in terms of the Customary Marriages Act [Chapter
5:07] or the Matrimonial Causes Act [Chapter 5:13] ($10 000 maximum value)
(v) Guardianship and custody in terms of the Customary Marriages Act (customary marriage)
(vi) Validity, effect or interpretation of oral wills in terms of the Wills Act [Chapter 6:06],
subject to s14(2) of the Magistrates Court Act
(vii) In all other cases apart from the above where the amount/value does not exceed the
prescribed amount; provided that a court shall have jurisdiction to try any action or case
referred to in (i), (ii), (iii) or (vi) above otherwise beyond its jurisdiction if the defendant has
consented thereto in writing.
3. Except for actions in terms of s14, where the parties have agreed the court should have
jurisdiction.
4. If two claims are combined but each would have been within the jurisdiction.
5. Claim for confirmation of an interdict or arrest granted pendente lite is joined in summons for
any other relief. See also s12 re: tamquam, spoliation, attachments and interdicts the court has
jurisdiction to order these ($10 000 maximum value).
6. Where the claim is for the balance of an account and is within the jurisdiction even though the
whole account may have exceeded the jurisdictional limit.
7. Where findings on a matter beyond the jurisdiction are necessary, the court’s jurisdiction is not
otherwise ousted where the amount/relief claimed is not within the jurisdiction. Interest on capital,
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MY NOTES 1
costs or alternative relief should not be considered in deciding whether the claim is within the
jurisdiction.
8. The plaintiff may abandon explicitly a part of his claim to bring it within the jurisdiction.
9. The plaintiff may deduct what he admits to owing defendant to bring his claim within
jurisdiction.
10. Splitting of a claim to bring it within the jurisdiction is not permitted.
11. A court having jurisdiction in respect of the person shall have jurisdiction where the person
owes a debt in terms of the Income Act [Chapter 23:06] or Debt Adjustment Tax Act 5/1965
irrespective of the value of the amount due.
Note. Section 13 of the Magistrates Court Act on attachment to found or confirm jurisdiction against
non-Zimbabwe resident as long as the claim is within the jurisdiction (maximum value $10 000).
Limits to Jurisdiction
A magistrates court cannot hear civil cases if the amount or the value of the thing claimed is more
than $10 000. In terms of section 14 of the Magistrates Court Act a magistrates court shall have no
jurisdiction to deal with cases wherein is sought:
1. (i) Dissolution of a marriage other than a registered customary marriage
(ii) Judicial separation and proprietary order in matrimonial matters unless they are in respect
of registered customary marriages
(iii) Declaration of nullity of marriage other registered customary marriage
2. The validity of interpretation of a written will or other testamentary document.
3. To determine the status of a person with respect to mental capacity.
4. Specific performance without the alternative of damages except:
(i) To order the rendering of an account where the claim is within the jurisdiction ($10 000
maximum value)
(ii) To order the delivery/transfer of property whose value is within the rules ($10 000
maximum value)
5. A decree of perpetual silence.
6. Provisional sentence.
7. A declaratory order as to any existing, future or contingent right or obligation where there is no
consequential relief. Except:
(i) To make a declaratory order as to the fact of a marriage in adultery damages claim or
value of necessaries supplied to the wife
(ii) To make a declaratory order as to affiliation in suit to recover maintenance lawfully
supplied to a child
(iii) To make a declaratory order as to the fact of marriage/affiliation in an enquiry in terms of
the Maintenance Act [Chapter 5:09] as long as these declarations will not bind present or
future rights.
8. The court also has no jurisdiction to determine the validity, effect or interpretation of an oral will
made in terms of s11 of the Wills Act [Chapter 6:06], unless:
(i) The testator is normally resident in province when he made the will or died
(ii) The testator is born within the province

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2 MY NOTES
 (iii) The majority (by number/value) of beneficiaries are normally resident within the province
at the testator’s death
(iv) The will was made within the province.
9. Immovable property situated within the province disposed by the will.
The term ‘province’ also refers to regional division.
It should be noted that in terms of s15, where counter-claim exceeds jurisdiction the court can stay
proceedings to enable a competent court to be appraised of the matter. Failure to file a counter-
claim in a competent court can lead to a further stay or dismissal of application. Failure to further
file a counter-claim, or if the defendant’s counteraction is stayed, dismissed/withdrawn or
abandoned, or absolution has been granted in a competent court, leads to the dismissal of the
counter-claim upon application.
Issuing and Service of Documents
Parties in civil cases have to file their pleadings and notices with the clerk of court. For instance,
after a party has completed a summons they are issued through the clerk of court. Issuing involves
the clerk checking whether the proper revenue for the summons has been paid and allocating a case
number, then signing the document and stamping it with the official stamp.
Some pleadings, orders and warrants must be issued by the court before they can be served.
Documents that must be issued by the court are process of court and can be served only by a court
official. Documents like a summons, a summons for civil imprisonment, a warrant of execution, a
garnishee order, a warrant for civil imprisonment and an interdict must be issued by the court
official. After such documents are filed with the clerk of court, the court official accepting them must
stamp them and must sign them on behalf of the clerk of court. This is what is called issuing. In
terms of Order 3 R2 (a) of the Magistrates Court (Civil) Rules (hereinafter referred to as the Rules) it
is the duty of the clerk of the court to issue all such process of the court as may be sued out by any
person entitled thereto.
Service of Process
Service of process is dealt with in Order 7 of the Rules. Process is defined in terms of this Order as
‘any document which is required to be served on any person in terms of these rules’. The Order
applies to the service of all process within Zimbabwe except to the extent that it is inconsistent with
any other provision of the rules relating to the service of any particular process; or any order or
direction which the court may give in relation to the service of any particular process [Order 7 R2].
Service of a summons, warrant or order of court shall be effected by the messenger of court and any
process, other than a summons, warrant or order of court, may be effected by the messenger of
court or by the party concerned or his legal practitioner or agent [Order 7 R3(1) and(2)].
A party who requires the messenger of court to serve any process shall deliver to him a copy of the
process, together with as many further copies as there are persons to be served [Order 7 R3(3)].
The time of a serve is between 10 am and 6 pm; except for process for the arrest of any person and
process served by post, telegraph, telefacsimile or courier, which shall be valid whenever it is served
[Order 7 R3(4)].
The manner of service for process in relation to a claim for an order affecting the liberty of a person
is that it shall be served by delivery of a copy thereof to that person personally [Order 7 R5(1)].

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3 MY NOTES
All other process are served in the ways set out in Order 7 R5(2), that is, by personal delivery to that
person or to his duly authorized agent; by delivery to a responsible person at the residence or place
of business or employment of the person on whom service is to be effected or at his chosen address
for service or by delivery to that person’s legal practitioner of record.
With juristic persons service is done in the following ways: on a body corporate, by delivery to a
responsible person at the body corporate’s place of business or registered office; if that is not
possible, by delivery to a director or to the secretary or public officer of the body corporate; on a
partnership, by delivery to a responsible person at the partnership’s office or place of business; and
if that is not possible, by delivery to any of the partners; on a syndicate, club, society, church or
other unincorporated association, by delivery to a responsible person at the local office or place of
business of the association; or if that is not possible, by delivery to the chairman or secretary or
similar officer of the association.
If service cannot be effected because the address for service is being kept closed and if the person to
be served cannot be found after a diligent search it shall be sufficient service to leave a copy of the
process in a letter-box at or affixed to or near the outer or principal door of, or in some other
conspicuous position at, the residence, place of business or employment, address for service or
office, as the case may be [Order 7 R6).
If a person deliberately resists service, the messenger of court is entitled to seek the assistance of a
police officer and the police officer is obliged to assist [Order 2 R2]: see Commissioner of Police v
Rensford 1984 (1) ZLR 202.
Order 7 R7 provides for service on two or more persons. Each person must be served, except in
respect of married persons who are not separated under an order of judicial separation, when
service of process relating to property jointly owned or jointly held by them may be effected on
either spouse; and in respect of joint trustees of an insolvent estate, liquidators of a company,
executors, curators or guardians, when service may be effected upon any one of them.
Order 7 R7A is on service by registered post and Order 7 R7B is on service of process for ejectment
or payment of rent is sought.
In terms of Order 7 R7C service can be proven as follows: service by the messenger by return of
service or by endorsement on the process; by a legal practitioner or a responsible person in his
employ by a certificate of service (Form No. CIV 6A); service by any person proof is by affidavit; and
in case of service by post, by signed acknowledgement of receipt.
Order 7A sets out special rules on service on the State.
If service cannot be effected in the manner prescribed by the Rules, a person has to apply for
substituted service. The application is made to the court and the court will authorize service in some
other way (see Order 7 R8).
Summary Procedures
In the magistrates court all claims must be brought by way of action/summons procedure unless an
Act specifies the use of an application. A summons calls upon the defendant to enter appearance to
defend within a stated period of time. Details required in a summons, issuing and service of such is
dealt with in Order 8 of the Rules. After the summons has been served on the defendant special
procedures must be carried out. These summary procedures are steps taken to curtail proceedings
so that a matter is finalized sooner. These will be dealt with, respectively.
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4 MY NOTES
Default Judgment [Order 11]
In terms of Order 11 R5(1), a default judgment is defined as ‘a judgment given in the absence of the
party against whom it is made’. It is available where the defendant, after service of summons, has
neither consented to judgment nor entered appearance to defend within the prescribed time. In
such a case, the plaintiff may lodge with the clerk of court a written request for judgment to be
entered against the defendant with costs. Order 11 R2: it is not necessary to serve a copy of the
request on the defendant.
A request for default judgment shall be for any sum claimed (not exceeding amount stated in the
summons), or other relief, together with interest and costs. Interest will be at the rate claimed in the
summons or at the rate in terms of the Prescribed Rate of Interest Act [Chapter 8:10].
Order 11 R3. Where a defendant has entered appearance but has failed to deliver a plea in terms of
Order 16, default judgment may be applied for, after delivery of due notice to so file his plea, in the
same manner as in R2.
Order 11 R4. Judgment shall be entered by the clerk of court where R2 and R3 are satisfied.
Exceptions
1. R4(2). Where a defective claim has been entered, the clerk of court shall require the plaintiff to
serve 48 hour notice on the defendant to rectify the error (which must be clearly pointed out)
before any default judgment can be granted.
2. R4(4). Where service of summons has been by post a default judgment cannot be entered unless
the postmaster’s certificate is filed together with the messenger of court’s returns that the letter
was duly delivered.
3. R4, (5), (6), (7), (8). The clerk of court must refer to the court or magistrate any request for
default judgment for
(i) Proof of damages
(ii) Hire purchase
(iii) Agreement governed by Hire Purchases Act [Chapter 14:09]
(iv) Liquid document, the original of which must be filed of record, or affidavit sworn to
explain why it cannot be filed. A liquid document is a document that creates an obligation to
pay money on the face of it and is signed by the debtor or deemed to be acknowledged. The
amount owing must appear ex facie the document. Examples include a cheque, a written
acknowledgement of debt and a mortgage bond.
(v) Any other request, in which case the magistrate may refuse judgment, enter judgment on
satisfactory proof, call upon the plaintiff to produce written/oral evidence to support his
claim, or make any order as he thinks fit.
Several defendants
In terms of Order 11 R4(9) the plaintiff can request judgment against the defaulting defendant
without prejudice to his claim against the other defendants.
Consent to Judgment [Order 11]
Upon service of summons or even before, the defendant may choose to consent to judgment. The
consent is in writing and it indicates that the defendant is consenting to judgment and also whether
the consent is for the full amount claimed by the plaintiff or less.

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5 MY NOTES
Order 11R1
1. A defendant may consent to judgment by delivering a written memorandum stating his consent
and for what amount.
2. Where the consent is consequent upon a letter of demand or before the messenger of court has
received instructions for service, it shall not be necessary to serve summons and no costs of service
are chargeable against him.
3. Consent before the expiration of time for appearance absolves the defendant of judgment
charges.
4. Where the consent is for a portion of the claim, then he may enter appearance for the balance
and the matter may continue for that balance notwithstanding judgment upon such consent.
Order 11 R4
5. Judgment by consent shall be entered by the clerk of court in terms of the consent except that
(i) In the case of a liquid document the original liquid document or affidavit is required
before judgment can be entered.
6. Where a clerk of court has referred the matter to a magistrate the magistrate may require the
plaintiff to provide evidence that the consent has been signed by defendant and it is for the
judgment sought:
(i) enter judgment
(ii) refuse judgment
(iii) make such order as he thinks fit.
7. When one of several defendants has consented to judgment, then judgment may be entered
against him without prejudice to plaintiff’s claim against the others.
After judgment has been entered for the plaintiff, he may enforce the judgment.
Payment into Court [Order 13]
Order 13 gives the rules on payment into court. Basically there are two types of payment into court
that is, in terms of R1 and R2.
R1. Defendant may at any time pay into court unconditionally the amount on the summons and
process stops, except for the recovery of costs not included in the payment. The payment must
specify the causes of action, otherwise it must be disregarded. No consensus is required: see
Brookmee v Rhodesia Railways 1956 R & N 51 1956 SA 562 (SR) and Santam Insurance Company v
Liebenberg NO and Anor 1976 (4) SA 312 (W).
R2. The defendant may without prejudice make an offer of settlement and pay it into court, which
the plaintiff may, within 7 days of notice of such payment, request delivery of the same and further
proceedings will be stayed, save for the recovery of costs not included in the payment.
If the plaintiff refuses tender, but is unable to prove the amount, he is still entitled to the full
amount of tender: see Union Government v Male 1943 AD 3.
R3 provides that payment in terms of R1 and R2 shall be on notice delivered to the plaintiff setting
out the amount and stating whether it is in terms of R1 or R2. If it is under R2, it must be stated
whether it includes both the claim and costs.
R4. The clerk of court shall pay out to the plaintiff monies paid into court under R1 and R2, except
that under R2 the plaintiff has to request the money first.

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6 MY NOTES
R5. The plaintiff is entitled to recover costs up to date of payment into court except where under R2,
the payment included costs.
R6. Where the plaintiff is unable to prove that he is entitled to more money than was offered under
R2, the court shall first:
1. Order payment of what is due to him less any order for defendant’s costs.
2. Give judgment for defendant for costs incurred after payment into court.
3. Make any order it thinks just for costs prior to payment into court: see Klein v Johannesburg City
Council 1948 (3) SA 296 (A).
R7. If pleading tender, the defendant shall pay into court upon filing pleas, if he had not already paid
the plaintiff.
R8. Unless, in terms of R4, money is to be paid out only upon granting of judgment or the consent of
the parties.
R9. In a claim for damages/compensation, the amount of tender/payment into court shall not be
disclosed to the court or in pleadings until the judgment, and an order for costs will only be made
after disclosure of tender/payment. R6 shall apply: see Vadivelu v South British Insurance Co Ltd
1957 (2) SA 443.
R10. If a year passes before payment has been made in terms of R2 or R7 then, unless the matter
has been set down for trial, the clerk of court shall refund the defendant his money and if he is not
found, shall pay it into the guardian’s fund.
Note the difference between this case and the Consent to judgment. No judgment is required.
Exception to Summons
An exception is a technical objection and it can be raised by a defendant objecting to the plaintiff’s
claims in the summons and the particulars of the claim, if any; with the exception that whatever is
being complained of must appear ex facie the document that is, the summons or particulars of
claim: see A. Lane v Eagle Holdings (Pvt) Ltd 126/85. The defendant may except to the summons
within 7 days of entering an appearance to defend by filing the particulars of the exception with the
court and serving it on the plaintiff. A defendant failing to deliver particulars of exception within the
prescribed period cannot thereafter raise the exception without leave of the court.
Grounds of exception to a summons
1. It does not disclose a cause of action [Order 14R2(a)]. A summons may fail to disclose a cause of
action in two ways: (i) it raises a cause of action that is illegal and unenforceable at law; (ii) It omits
an essential element of the cause of action.
2. It is vague and embarrassing [Order 14R2(b)]. This means that from reading it the defendant does
not know exactly what the plaintiff is claiming and therefore not able to respond to it.
3. It does not comply with the requirements of Order 8 14R2(c).
4. It has not been properly served [Order 14R2(d)].
5. The copy served upon the defendant differs materially from the original [Order14R2(e)].
Procedure for raising an exception
The court does not uphold an exception unless it is satisfied that there would be prejudice to the
defendant [Order 14R5(1)]. Where non-compliance is the basis of the exception, the excipient must
first of all give notice indicating in what ways the summons is not in compliance [Order 14R2(5)].

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7 MY NOTES
With an exception that the summons is vague and embarrassing, prior to taking the exception the
excipient, give notice giving the plaintiff an opportunity to remove the cause of the complaint [Order
14R5(3)].
When the court is faced with an exception it can set down the matter in a special way in terms of
Order 16R9. The court can decide to uphold the exception. The plaintiff can make an application to
amend so that the summons is no longer defective. If the application to amend is granted then the
matter will proceed on the basis of the amended summons. If the application to amend is dismissed
or there is no application to amend the court can dismiss the claim on application by the defendant
[Order 14R8].
Special Pleas
A plea which raises a (special) technical defence to the plaintiff’s claim. It is technical in the sense
that it is not a defence on the merits. There are two types of special pleas:
1. Dilatory plea/plea in abatement, which is meant to delay proceedings until some temporary bar
to the claim has been removed. Examples are in lack of a locus standi in judicio and lis alibi pendens.
Melvin v Eblen 1948 (1) SA 550.
2. Declinatory plea/plea in bar, which is meant to quash the proceedings, for example, a lack of
jurisdiction, prescription, res judicata: see Flood v Taylor 1978 RLR 230.
Procedure
The special plea is raised in the same way as for the ordinary plea [Order 16]. The only difference is
that the special plea can be set down for hearing on 7 days’ notice. If the court upholds the special
plea that will be the end or the action is stayed until the defect is rectified. If it is not upheld the
defendant will have to plead on the merits and it will proceed as if there was no special plea.
Certain pleas are worth noting:
1. Plea of Tender [Order 16 R5 (Subject to Order 13)
(i) Plea to specify items of the plaintiff’s claim to which the tender relates
(ii) Payment into court must be made on delivery of a plea, if not already paid to the plaintiff,
for the plea to be admissible
(iii) The tendered payment will be paid out to plaintiff upon the court’s order or consent of
both parties
(iv) The same payment shall imply an undertaking to pay costs to date of the tender, unless it
is specifically disavowed
(v) The plea shall be valid without a tender/payment into court of the amount at which costs
may be taxed.
The tender must be coupled with an admission of liability: see Bloch v Cohen 1933 TPD 1000.
If the plaintiff refuses to tender and fails to establish his claim for even the amount tendered, he is
entitled to judgment for the full amount tendered but will have to bear all the costs from the date of
the tender. The tender is to be accompanied by payment into court to be valid: see Van Greens v
Brand 1918 CPD 440.
2. Plea of payment into court [Order 16 R6]. Particulars of payment into court shall show whether it
was in terms of Order 13 R1 or R2, or Order 16 R5. If it is not so specified, it shall be presumed to be
by way of tender after an action is brought.

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8 MY NOTES
Summary Judgment [Order 15]
This is a procedure that enables the plaintiff to obtain judgment without going to trial where the
defendant’s defence to the claim has no merits. Justification or purpose was explained in Chrismar v
Stutchbury and Anor 1973 (1) 277 (page 279). It is available to both the plaintiff and the plaintiff in
reconvention that is, a defendant who has raised a counter-claim [Order 15R1(1)]. It is only available
in respect of particular types of claim as set out in [Order 15R1(1)(i)-(e)]. These are claims
(i) on a liquid document or
(ii) for a liquidated amount in money or
(iii) for the delivery of specified movable property or
(iv) for ejectment or
(v) for a combination of any of these.
Procedure
Summary judgment must be applied for within 7 days of the date of the defendant’s appearance to
defendant [Order 15R1(2); note Order 9R1]. If the claim is illiquid there should be a copy of an
affidavit verifying the cause of action and the amount claimed. The deponent must also state that in
his belief there is not a bona fide defence to the action and that appearance has been entered solely
for the purpose of delay; and if the claim is liquid, there must be a copy of the liquid document on
which the claim is founded [Order 15R1(2) (a)].
The affidavit is sworn to by the plaintiff himself or any other person who can swear positively to the
facts. The deponent is allowed in the affidavit to elaborate on why they believe the defendant has
no bona fide defence to the claim. They are allowed to annex to the affidavit any document that
proves that the defendant has no bona fide defence: see Beresford Land Plan (Pvt) Ltd v Urquhart
1972 (1) RLR 260.
The options available to the defendant are in terms of Order 15R2(1). The defendant may:
(i) pay into court to abide by the result of the action the sum sued for, together with such sum
for costs as the court may determine or
(ii) give security to satisfy any judgment which may be given against him in the action or
(iii) satisfy the court by affidavit then filed, which may be supported by viva voce evidence or
otherwise, that he has a good prima facie defence to the action.
At the hearing of an application for summary judgment evidence adduced by the plaintiff by way of
an affidavit, of which a copy was delivered with the notice; or production without evidence of the
liquid document sued upon; and the plaintiff may not cross-examine any witness called by the
defendant, but any such witness may be questioned by the court and re-examined by the defendant.
[Order 15R2(2)].
Subject to the provisions of Order 14, if the defendant does not so pay into court, find security or
satisfy the court as provided in sub-rule (1) of rule 2, the court may enter summary judgment for the
plaintiff.
If the defendant does pay into court, find security or satisfy the court that he has a good prima facie
case, the court shall give leave to defend, and the action shall proceed as if no application had been
made. [Order 15R3(2)].

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9 MY NOTES
If judgment is granted for the plaintiff, he may then enforce it and if summary judgment is refused,
the defendant must deliver his plea within 7 days of the dismissal of the action if he wishes to
pursue the matter further.
Note. Please also consider applications to strike out per Order 14 R6.
Exception to Plea [Order 16]
The grounds of an exception to a plea are set out in Order 16R11. These are:
1. That it does not disclose a defence to the plaintiff’s claim.
2. That it is vague and embarrassing.
3. That it does not comply with the requirements of Order 16.
In terms of Order 16R10 a plaintiff may, within 7 days of the delivery of the plea or further
particulars and with or before delivering a reply, deliver particulars of an exception to the plea.
Order 16R15 provides that an exception to a plea may be set down for hearing by either party on 7
days’ notice. The court shall not uphold any exception to a plea unless it is satisfied that the plaintiff
would be prejudiced in the conduct of his case if the plea were allowed.
A plaintiff raising an exception that the plea does not comply with the requirements of Order 16
shall set out particulars of the alleged non-compliance. The court shall not uphold an exception that
the plea is vague and embarrassing unless the plaintiff has, prior to taking exception, by delivery of a
notice given the defendant the opportunity of removing the cause of the complaint [Order 16R12 (2)
and (3)]: see Guide to Civil Procedure in the Magistrates Court on service of notice of exception
(pages 40–41).
Pretrial Procedures
Request for Further Particulars to Summons [Order 12]
Further particulars are additional facts to a pleading that are intended to clarify the pleading so that
the party requiring them can adequately respond to it. In terms of Order 12R4, ‘pleading’ includes a
summons, counter claim, plea, reply and the schedule of documents prescribed by Order 18.
R2(1)(a). A defendant may request further particulars on not more than 7 days’ notice delivered
after entry of appearance to defend, requesting the plaintiff to deliver such further information as is
reasonably necessary to enable him to plead.
R2(2). A plaintiff shall deliver the required information within 7 days of receipt of notice. Failure to
do so requires an application to compel further particulars.
Note: If the further particulars are in conflict with the summons or set up a new cause of action,
then the summons can be excepted to as vague and embarrassing: see Aginsky v Johnstone and Co
1927 OPD 280.
Once further particulars are requested, they must be supplied as long as they are reasonably
necessary to enable one to plead, regardless of who has the onus of proof, and if the plaintiff is
unable to supply them, he must give reasons: see Van v Botha 1952 (3) SA 494 (0); Time Security P/L
v Castle Hotel P/L 1972 (1) RLR 155 (A); 1972 (3) SA 112.
If the further particulars are not supplied and the defendant pleads without them, then, he has
waived any right to an order compelling further particulars: see Brollomer Tin Exploration v Kameel
Tin Pty Co Ltd 1928 TPD 647.
The purpose of further particulars is to place a defendant in the position of being able to decide
whether or not to persist in his defence and he is therefore entitled to the further particulars
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10 MY NOTES
reasonably necessary for him to make that decision: see Time Security (supra). The circumstances in
which further particulars may be asked for are that a defendant is entitled to a copy or copies of the
accounts or documents upon which the plaintiff’s claim is based: see Estate Zagorie v Lategan 1945
CPD 360. If the requested particulars are not necessary to enable the defendant to respond, the
plaintiff may decline to supply them.
Plea [Order 16]
The plea is the defendant’s answer to the plaintiff’s declaration or particulars of claim. It is a
statement by the defendant wherein he
1. Admits, denies confesses or avoids all the material facts alleged in the summons.
2. Sets out clearly and concisely the nature of his defence and all the material facts on which it is
based [Order 16R2].
3. Plea must be delivered within 7 days after
(i) Entry of appearance
(ii) Delivery of documents/particulars [Order 12 R1 or R2]
(iii) Dismissal of summary judgment.
4. The consent is for the portion of a claim, the making of an order or giving leave to defend.
5. Dismissal of exception or motion to strike out is dealt with under Order14 R7.
6. Any amendment of summons allowed by court at the hearing of an exception/motion and must
be signed and dated by a person specified in [Order 4 (Representation of Parties).
However, where an appeal is noted against a decision in an exception, or upon a review, the plea
should be delivered within such time as a court directs.
Note: 1. Once admission is made it may not be withdrawn unless the court is satisfied that it was
made through a bona fide mistake, and the prejudice to plaintiff may be compensated by
postponement or order for costs: see Bulk Freight Services P/L v Ministry of Defence S-124–91.
See Rule 7.
2. The defendant is permitted to make a bare denial: see Neugebauer and Co Ltd v Bodiker 1925 AD
316.
3. The defendant’s plea must be such that the plaintiff is given sufficient details to enable him to
appreciate the true nature of the defence: see Van Zyl v Barclays Bank 1933 OPD 23.
R3. Where a summons is served on the wrong person, that person must plead as though he were the
correct defendant, and raise in his plea the defence that he is incorrectly cited. The matter of costs
will follow the result, but the court may allow, upon application by the plaintiff, the summons to be
amended and order it to be served on the correct defendant.
R4. It is a bare denial if the defendant denies liability without reference to the facts on which he
bases that conclusion: see Britz v Weidman 1946 OPD 144. The defendant must deny specifically any
of the allegations in the summons, either as a sole defence or in combination with any other
consistent defence.
R7. Every allegation by the plaintiff which is inconsistent with the plea, is presumed to be denied.
The converse is also true: see DD Transport Pvt Ltd v Abbott 1988 ZLR 92(S). The effect of an
admission is that it cannot be withdrawn unless granted by the court on a reasonable explanation. It
must also be bona fide. Therefore, the party making an admission cannot lead evidence to
counteract it and the other party does not have to prove it.
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11 MY NOTES
R8. New defence emerging during trial. The court may allow the amendment of a plea to include
that defendant through oral submissions on such terms as to the postponement and costs as the
court shall think fit: see Luxury Stores v Shamva Service Station 11983 P/L SC–122–88.
R9. Any defence that can be adjudicated upon without the necessity of going into the main case may
be set down by either party on 7 days’ notice.
Request for Further Particulars to Plea [Order 12]
R2(1)(b). A plaintiff may, on not more than 7 days’ notice after delivery of plea request further
particulars thereto:
1. The purpose of which is to enable him to decide whether or not to persist with his claim: see
Time Security supra.
2. Reasons for refusing/failing to supply particulars must be given: see Van Biljon supra.
3. See note 2 and 3 under further particulars to summons
4. The difference between further particulars to summons and further particulars to plea is that an
additional defence can be raised in the further particulars to plea, whereas further particulars to
summons will be excipiable if they raise new or further causes of action: see also A Guide to Civil
Procedure in the Magistrates Court supra, pages 38–39.
Reply [Order 17]
R1. Where the defence raised in the plea is other than a bare denial, the plaintiff may within 7 days
of the delivery of the plea, or the delivery of further particulars, in terms of Order 12 R2, deliver a
statement replying to the defendant’s plea.
R2. Order 16 shall apply to a reply in so far as the rules to a plea are concerned.
R3. Should the plaintiff fail to reply, he is deemed to have denied any allegation of fact in the plea.
There is no need to reply if a plea is a bare denial but a reply will be necessary where new facts are
set out in the plea, for example, if it is a plea of confession and avoidance. Upon delivery of the reply
pleadings are closed and there is joinder of issues, that is, no further issues shall be raised at trial.
Closure of Pleadings [Order 17 R4]
Pleadings are closed upon receipt of a reply or upon the expiration of the time limited for a reply.
Thereafter, no further pleadings may be filed.
Contrast with Order 16 R 107 High Court Rules.
The effect of closure of pleadings
The parties will not be allowed to proceed to discovery before the closure of pleadings. Equally, the
parties will not be allowed to proceed to Pretrial Conference before closure of pleadings. The parties
will also not be allowed to proceed to set down before closure of proceedings. The claim can be
transmitted to the heirs of the plaintiff if he dies after the closure of proceedings. Personal claims
cannot, however, be transmitted. The parties’ rights are regarded as frozen.
Discovery of Documents [Order 18]
The purpose is to enable each party in the litigation to find out or to discover what documents
relating to the matter in issue are in the control of opponents. This is done to prevent surprise at
trial. Discovery is compulsory in the magistrates court. It is always good practice for each party to ask
for discovery.

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R1(1). Upon closure of the pleadings, either party may, on notice, request the other to deliver a
schedule of books or documents in his possession/control which he intends to use, or which tend to
prove or disprove either party’s case.
R1(2). The schedule must be delivered within 7 days of notice.
R1(3). Privileged documents shall be separately listed and the grounds thereof specified. There are
two common types of privilege that affect discovery; that is, legal professional privilege (see Kerwin
v Jones 1957 R&N 668) and state privilege (see Association of Rhodesian Industries v Brookes and
Anor 1972 (2) SA 680.
R1(4). Undiscovered documents may not be used by the party who failed to discover them without
leave of the court, but the other party can call for and use them in cross-examining the witness.
R2. Each party shall allow the inspection and copying of documents disclosed in terms of R1 or R3, or
on pre-payment for them, supply copies thereof.
R3. Either party may, by notice, require the other to produce at the trial the books/documents
disclosed and this notice shall have the effect of a subpoena under Order 24.
Contrast 12 R1(1). The application is to be supplied with documents in order to decide for the
defendant whether to defend a claim.
Failure to comply with a notice of discovery will entitle the requesting party to resort to the
procedure set out in Order 33 R1,2 and 3, that is, seek a court order compelling discovery and the
court may order as such.
Pretrial Conference [Order 19]
This is held after the closure of pleadings.
R1(1). The party wishing the matter brought to trial shall request the other to attend pretrial at a
mutually convenient time and date.
R(2). The purpose of the pretrial is to expedite and curtail the duration of trial by agreeing, if
possible, on:
1. Admissions of fact and documents.
2. Inspections and examinations.
3. Exchange of experts’ reports.
4. Discovery.
5. Further particulars for trial.
6. Plans or diagrams, models, photos and so on, to be used at the trial.
7. Consolidation trials.
8. Quantum of damages.
9. Definition of real issues and manner of proving same.
10. Duration of trial.
11. Bundle of documents.
12. Settlement of all or any issues.
R(3). Pretrial, if parties agree to R1, shall be before magistrate in chambers at a date and time fixed
by the clerk of court in consultation with both parties.
R(4). The clerk of court, on instruction from the magistrate, may, on reasonable notice, ask the
parties to appear before the magistrate at a date and time in the notice for pretrial with the

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objective of agreeing or settling the matters in sub-rule 2. The magistrate may at the same time give
directions as to whom should attend and the documents to be furnished or exchanged.
R(5). Notice in terms of sub-rule 4 does away with requirements of the pretrial in terms of sub-rule
1.
R(6). A party may apply for directions should the parties fail to agree to pretrial in terms of R(1)
or(3), or on who should attend, when and where.
R(7)(8)(9). At conclusion, pretrial may be conducted without a magistrate in terms of R1(1), the
parties to draw up minutes to be signed by both, and if there is no agreement, one party may ask for
directions. If the parties are agreed, then they can apply to the magistrate to make an order in terms
of that agreement.
R(10). Pretrial before the magistrate:
1. He shall record decisions taken and agreement reached.
2. He may give directions on any issue in terms of R1(2) not agreed upon.
3. He may make any order limiting the issues for trial to those not agreed to.
4. He shall record a refusal by any party to make an admission/reach agreement and the reason
therefore.
R(11). Failure to comply with the magistrate’s directions in terms of sub-rules (4), (6), (8), (10) or
notice in terms of sub-rule (4) may lead the court, on application, to dismiss the claim, strike out the
defence or make any other order as may be appropriate.
Request for Further Particulars for the Purposes of Trial [Order 12]
R3. These further particulars for the purposes of trial must be reasonably required and requested on
notice, and must be supplied as soon as reasonably possible. There are no time limits for the notice
or the supply. See also R143 HCR.
The purpose of these further particulars is:
1. To limit the generality of the allegations in the pleadings.
2. To define the issues more precisely: see Motaung v Federated Employers Insurance Co Ltd
1980(4) SA 274).
The function of these further particulars is to fill in the picture of the plaintiff’s cause of action, or
defendant’s defence, with information sufficiently detailed to put either party on his guard and to
enable him to prepare for trial: see Samuels and Anor v William Dunn and Co SA P/L 1949 (1) SA
1149 (T); Motaung (supra); See Guide (supra) on the consequences of a failure to supply.
Further particulars to any pleadings
R2(1)(b),(c) R4. Any other pleadings are defined as:
Counter-claim, reply, schedule of documents in terms of Order 18, judgment on exception in
addition to summons and plea. The purpose, manner of obtaining them and function are as
already described.
Supply of copies of documents and inspection of originals
R1(1). At any time before the delivery of the plea, a defendant (in convention/reconvention) may, by
notice, apply to be supplied with copies of all or any of the accounts or documents upon which the
claim is founded and the plaintiff shall supply the same within 7 days of receipt of notice. A plaintiff
is not required to supply documents that are merely incidental or collateral to the action: see Late
Estate Zagorie v Lategan 1945 CPD 360.
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14 MY NOTES
R1(2). The plaintiff shall, on notice, forthwith allow the defendant to inspect the originals of such
accounts or documents.
This is different from the provisions of Order 18 in that here the intention is to accord the defendant
with such information as shall be reasonably necessary for him to plead.
Trial Procedures [Order 19]
A trial is held before a magistrate in a magistrates court. The parties are the plaintiff and the
defendant. For a matter to proceed to trial it must be set down.
Set Down [R2]
1. Notice of set down shall be delivered by the plaintiff after pretrial for a day approved by the clerk
of court. On failure to do so within 14 days of the pretrial, the defendant may do so.
2. The effect of a set down is to set down any counter-claim. Notice of set down for trial shall be
served 7 days before the trial date.
3. The set down shall be for the court where the summons was issued.
Presentation of evidence
R4. Witnesses may be ordered to leave the court until their evidence is required, or after their
evidence has been given, or to remain in court after giving evidence until the trial is adjourned or
terminated.
R5.
1. Before hearing evidence, the court may require the parties to state briefly the issues of fact and
questions of law that are in dispute and record them.
2. Where there are several issues of fact, but one of them may dispose of the rest, the court may
order that that issue be dealt with first and thereupon give final judgment.
3. If the issue in dispute is one of law and the facts are agreed, then the facts may be admitted in
court and judgment given thereupon without further evidence.
4. Where both issues of fact and law are in dispute, but the court decides that the case may be
disposed of by dealing with the question of law, it may require the parties to argue upon the
question of law only and give its decision before taking evidence on the facts, and given final
judgment without dealing with the facts if the decision on the issues of law is warrant.
Order of leading evidence
The general principle is that he who alleges must prove: see Nyahondo v Hokonya 1997 (2) ZLR 457.
R6.
1. The plaintiff shall lead evidence first if he has onus, and if absolution is not granted, followed by
the defendant.
2. If the burden of proof is with the defendant, he shall lead evidence first followed by the plaintiff.
3. Where both parties have the burden of proving some issues, the plaintiff shall lead evidence first
on those issues he must prove and may close his case; whereafter the defendant shall call his
evidence on all the issues. If the plaintiff has not called any evidence on those issues the defendant
has the onus of proof. The plaintiff shall do so after the defendant has closed his case. But if he calls
his evidence first, then he shall not have such a right.
4. The court shall direct which party adduces evidence first in the case of a dispute.
5. Either party, can, with the leave of the court, adduce further evidence at any time before
judgment, unless the evidence was intentionally withheld out of its proper order.
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15 MY NOTES
This is court’s discretion, which must be exercised judicially and with fairness: see Mkwananzi v Van
der Merwe and Anor 1970 (1) SA 609).
6. The court may at any time before judgment, on application or on its own motion, recall any
witness for further examination: see Colley v Marais 1964 SA 657.
7. Any witness may be examined by the court and by the parties.
8. At the close of the case, either party may address the court, starting with the party who adduced
evidence first, followed by the other, and the first party may reply.
R7 deals with interrogatories. These are specific written questions to a witness who cannot attend
court and their answers are recorded and produced as evidence.
Judgment
The Judgment may be handed down immediately, orally, or a written judgment may be submitted at
a later date.
Section 18 of the Magistrates Court Act provides that the judgments that a court may give are:
1. A judgment for the plaintiff in respect of his claim in so far as he has proved the same;
2. A judgment for the defendant in respect of his defence in so far as he has proved the same;
3. Absolution from the instance, if it appears to the court that the evidence does not justify the
court giving judgment for either party; such judgment as to costs as may be just, including an order
that one party pays the costs of the other party on a legal practitioner and client basis. The test to be
applied where there is an order of absolution from the instance is to be found in the case of
Supreme Service Station 1969 Co Ltd v Fox and Goodridge 1971 (1) RLR 1.
Enforcement of Judgment
The method depends on the type of judgment. There are generally two types of judgment:
(i) those sounding in money and
(ii) orders to do or abstain from doing a particular act or to deliver a particular thing.
The methods of enforcement are generally a warrant or writ of execution, a garnishee order and civil
imprisonment.
Warrant of Execution
This is a court process authorizing the messenger of court to attach and sell the debtor’s property as
is necessary to satisfy the judgment debt. Procedure is provided in s20–25 of the Magistrates Court
Act and Order 26 of the Rules.
Note. There is no warrant of execution against the State: see s5 of the State Liabilities Act [Chapter
8:14]. There is also no execution against property listed in s25 of the Magistrates Court Act. In terms
of s20(1) of the Act there should be no attachment of immovable property until the movables are
exhausted first.
Section 20(2) provides that no immovable property that is subject to any claim preferent to that of
the judgment creditor shall be sold in execution unless:
1. The judgment creditor has caused such notice in writing of the intended sale in execution to be
served personally upon the preferent creditor as may be prescribed in rules; or
2. A magistrate of the regional division or, as the case may be, province in which the property is
situate has, upon the application of the judgment creditor and after inquiry into the circumstances
of the case, directed what steps shall be taken to bring the intended sale to the notice of the
preferent creditor, and those steps have been carried out; and unless:
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16 MY NOTES
 (i) the proceeds of the sale are sufficient to satisfy the claim of such preferent creditor in full;
or
(ii) the preferent creditor confirms the sale in writing, in which event he shall be deemed to
have agreed to accept such proceeds in full settlement of his claim
Also note the provisions of s21, 22 and 23 of the Act.
In terms of Order 26 no warrant of execution shall be issued before the day of the order without the
leave of the court, applied for at the time of the granting of the judgment. This is done to give the
judgment debtor time to pay and is prescribed in Form CIV 29. It is directed to the messenger of
court.
In terms of Order 26 R2(1) the messenger may require security from the judgment creditor when he
is in doubt as to the validity of any attachment (Form CIV 34).
Security must be provided before sale in execution of the property which has been attached, unless
summons was served on the defendant personally or where the defendant enters appearance to
defend or where notice of attachment is served on the debtor personally. The execution debtor
may, by endorsement to that effect on the writ of execution, dispense with giving security.
R3(1). The costs and expenses of issuing and levying execution by the messenger shall be a first
charge on the proceeds of the property sold in execution.
R3(2). Subject to any hypothec existing prior to attachment, all warrants of execution lodged with
the messenger on or before the day immediately preceding the date of the sale in execution shall,
subject to the provisions of sub-rule (21) of rule 7, rank pro rata in the distribution of the proceeds
of the goods sold in execution.
R3(8). On completion of any sale in execution of property, whether movable or immovable, the
messenger shall attach to his return a statement showing details of the property sold, the prices
realized and the names and addresses of the purchasers; and a statement showing the distribution
of the proceeds of the sale and of any deposit paid to the messenger.
Procedures followed by the messenger against movables are in Rules 4A, 5 and 6. There is a notice of
intention to execute or a notice of removal. The notice is served on the debtor; the messenger
shows him the original and gives him a copy. The messenger will demand payment of the judgment
debt and costs. If there is a partial or no payment the messenger will make an inventory of so much
of the debtor’s property as he thinks will be sufficient to satisfy the warrant. The messenger is
authorized to use force in entering premises.
Goods that are inventoried shall be deemed to be attached and the inventory, together with a notice
of attachment, shall be delivered to the debtor or left on the premises. The property attached may
be removed forthwith or may be left with the debtor with an indication as to when it will be
removed.
R5(13).The messenger will organize a sale in execution. The sale must be advertised if the property
exceeds $50,00. A notice of the sale must be affixed to the door of the courthouse or other public
building in the place where the court is held; and at or as near as may be to the place where the sale
is actually to take place, and such notice shall set out the day and place where such sale is to be
held.

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R5(15). Where the attached goods are of a perishable nature or the execution debtor consents, the
court may, on application, reduce either or both of the periods of notice to such extent and on such
conditions as it thinks just.
Note that the sale is by public auction to the highest bidder and shall be held by the messenger with
the approval of the magistrate or with the auctioneer to the highest bidder or by any person
appointed by the messenger.
In terms of R5(16) a sale in execution shall be stopped as soon as sufficient money has been raised
to satisfy the warrant and the costs of the sale. If, after a sale in execution of property, there
remains any surplus with the messenger, it shall be liable to attachment for any other unsatisfied
judgment debt. If there is no unsatisfied judgment debt, the messenger shall pay such surplus to the
judgment debtor, if he can be found and, if he cannot be found, to court. R5(10).
The procedure for execution against immovable is to found in R7.
The court has power to order a stay of execution on application by the judgment debtor on good
cause shown: see Cohen v Cohen 1979 RLR 184.
For a warrant of ejectment and execution of property Form CIV 27 applies, as read with SI 289/1983.
The ejectment and the attachment can be done at the same time.
Garnishee Order
The procedure is governed by s33 of the Magistrates Court Act and Order 29 as amended by SI
102/85. It is used to enforce judgment sounding in money where there is money due to the creditor.
Procedure
A person makes an ex parte application supported by an affidavit setting forth the details outlined in
R1(2) of Order 29. The application is lodged with the clerk of court, who will lay it before the
magistrate, and the magistrate will grant a provisional order upon satisfaction. The magistrate may
require the applicant to appear in open court and argue his/her case and thereafter the order may
be granted in part or in whole.
R(5) If in open court the judgment debtor admits sufficient of the facts to warrant an attachment
being granted, such admission shall be recorded and an application for a garnishee order may be
made orally without an affidavit.
In terms of s33(2), the order shall be served on the garnishee and a copy thereof on the judgment
debtor by the messenger either personally or in such other manner as the court directs in the same
manner as a summons is directed to be served by any law or rule relating to the service of a
summons in civil proceedings, and the service of such order shall operate as an interdict restraining
the alienation of the debt by the garnishee except as directed in the order. On the return day the
garnishee gives any reason that he may have as to why the order should not be confirmed, for
example, the reason may be that the debt is not yet owed.
If the garnishee disputes his liability to pay the debt, or alleges that the debt sought to be attached is
subject to a set off or belongs to or is subject to a lien by some other person, the court, shall, subject
to the limitations as to jurisdiction imposed in civil cases, proceed to hear and determine the
question of such liability or of the rights of such other person and may order such other person to
appear and state the nature and particulars of his claim to or upon the said debt. Section 33(4). After
hearing the garnishee or such other person and their witnesses or, in case of the non-appearance
after order of such other person, the court may order execution to issue against the garnishee and
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may declare the claim of such other person to be barred, or may make such other order as to the
court seems proper, upon such terms in all cases with respect to any set off, lien or charge of such
other person, and upon such terms with respect to costs as the court thinks just and reasonable.
Section 33(4). If the garnishee does not appear on the return day while he has a good reason not to
pay the creditor the order will be confirmed in default and he will be required to make payment to
the creditor regardless of any other payment he may have made.
R3(1) The judgment debtor may appear on the return day and shall have a locus standi to oppose
the confirmation of the order, but only on the ground that:
1. The judgment had been satisfied otherwise than under the garnishee order or was for some
other reason not operative against him at the time when he received notice of the garnishee
application.
2. The debt sought to be attached is for salary or wages and its attachment will not leave him a
sufficient amount to maintain himself and those dependant on him.
R4. If the garnishee pays any money pursuant to the order of the court he shall pay it to the
messenger who shall retain the amount until the return day and shall thereafter deal with it in
accordance with the order made by the court.
R6. Where a garnishee order has been made for the attachment of salary or wages to be earned in
the future and thereafter the judgment debtor ceases to be employed by the garnishee, the latter
shall immediately give notice to the judgment creditor or his legal practitioner.
Garnishee orders against the State are dealt with in R1(1a), (1b), (1c) and R2(a). In terms of s33(8), in
any case where the State is the garnishee, the order to be served shall be served where the order
relates to salary or wages of a person who is employed by the State and whose salary or wages are
paid by the Salary Service Bureau, upon the person in charge of the Salary Service Bureau in Harare.
In any other case, it shall be served upon such person as may be prescribed in the rules. Before
applying for an order against the State a notice of application has to be served in terms of R1(1a).
The notice must have sufficient information to identify the debtor. Once the notice is served, the
chief paymaster or director must give notice to the creditor that they have complied with the order.
A provisional order is then made. The provisional order and the final order must be served on the
officials on whom the application was served.
Civil Imprisonment
SI 248/93 in conjunction with Order 28.
This is a Roman-Dutch method of enforcement. It is used to force the debtor who has the means to
pay but is unwilling to do so. There is therefore be no decree of civil imprisonment if the debtor
satisfies the court that he has no means to satisfy the debt either from present or future earnings:
see s27 of the Magistrates Court Act. The debtor will not be excused if he is willfully refusing to work
or squandering his money or is apparently living beyond his means. This type of procedure can be
commenced against joint debtors: see R v Ncube 1969 (2) RLR 310. It is commenced by summons for
civil imprisonment. Where it appears either that a judgment has remained unsatisfied for 7 clear
days, or from the admission in writing or in open court of any judgment debtor, or by the return of
the messenger to any process of execution, that such judgment debtor has not sufficient property
liable to be attached in execution to satisfy the judgment debt and costs, the judgment creditor may
take out a summons calling upon the judgment debtor to show cause why a decree of civil
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19 MY NOTES
imprisonment should not be made against him [s26(1)]. The summons should be on Form CIV 35.
In terms of s26(3) the judgment creditor must pay the debtor’s travelling expenses if the service was
effected outside the province of the court from which the summons was issued. The summons must
be served personally on the debtor. The summons call upon the debtor to make payment or to
appear in court before a date specified in the summons to show cause why a decree of civil
imprisonment should not be made against him. If the debtor defaults or fails to show cause the
court will make an order or decree of civil imprisonment. The order will be enforced by way of a
warrant for civil imprisonment on Form CIV 36. This is basically a warrant of arrest authorizing the
messenger of court to arrest the debtor and have him detained in a mentioned prison.
A warrant for civil imprisonment may be executed at any hour on any day except Sunday, Christmas
Day and Good Friday; and at any place except within the residence of the person to be imprisoned or
the precincts thereof; provided that a magistrate may, on good cause shown, grant leave for a
warrant for civil imprisonment to be executed on a Sunday, Christmas Day or Good Friday or to be
executed within the residence of the person to be imprisoned or the precincts thereof, as the case
may be [Order 28R5].
The warrant of the court for the civil imprisonment of any person shall be signed and issued by the
clerk of the court and shall be addressed to the messenger of the court and to the keeper of a
specified prison. A warrant for civil imprisonment shall bear on its face the date when the decree
was made and, if any payments have been made under the decree, the date of the last payment
[Order 28R2. One may want to consider the provisions of s49(2) of the Constitution.
In terms of R4, where there are two or more orders for civil imprisonment against the same debtor,
such orders shall be cumulative with effect according to the priority of issue of the respective
warrants unless otherwise directed by the court.
Note s31 on the time periods. Further note that once a person has served his full term he be cannot
imprisoned again for the same debt. The judgment creditor must pay for the debtor’s sustenance
while in prison. The debtor may apply to the court for his release on good cause shown.
Suspended orders
If the debtor responds to the summons by offering to pay in installments a decree will be made and
suspended on condition that he pays in terms of his offer. If the debtor defaults a warrant for arrest
can be made: see s29.
R3. Where an order is made for civil imprisonment to be suspended so long as certain instalments
are paid, the clerk of the court may, before issuing a warrant for civil imprisonment, require the
party applying for it to satisfy him that the debtor has failed in due payment of any such instalment.
Costs
s28(1). A judgment creditor who proceeds to apply for a decree of civil imprisonment despite the
debtor’s bona fide offer to pay or his inability to make an offer may be ordered to pay the costs of
the application.
s28(2). The judgment debtor shall bear the costs of any proceedings for the suspension or discharge
of any decree or warrant or order for civil imprisonment unless the judgment creditor is in some way
responsible for the proceedings. The discretion of the court to make a just order as to costs is not
fettered by the provisions of s28.

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20 MY NOTES
Rescission of Judgment
This is provided in s39 and Order 30.
[Order 30R1]. Any party against whom a default judgment is given may, not later than 1 month after
he has knowledge thereof, apply to the court to rescind such judgment. There is a rebuttable
presumption of knowledge of such judgment within 2 days after the date thereof [R1(4)].
The application must be supported by affidavit stating the reasons why the applicant did not appear
at the hearing. The ground of defence or objection is that one has a bona fide defence to the main
matter.
If the application for rescission is brought out of time there is need to seek condonation first: see
Mahoqa v Libenburg SC 206/91.
In terms of R1(3) the applicant must pay to court the amount of costs awarded against him plus an
amount for security for costs of the application.
In terms of R2(1) the court must dismiss if there was willful default: see Neuman Pvt Ltd v Marks
1960 RLR 166. If the applicant was not in willful default and has filed acceptable grounds on merits
the court has a discretion to rescind or vary the order granted and it can also give directions as is
necessary.
Wilful default has three components to it. These are:
1. Knowledge by the applicant that action has been brought against him.
2. Knowledge he deliberately refrains from doing what he is required of him although he was free to
do so.
3. A mental attitude of not caring about the consequences of his default.
Once the first two points are established the last one is presumed: see Gundani v Kanyemba 1988 (1)
ZLR 226 (S).
The court must be satisfied with the grounds of defence before granting rescission. Where the
summons does not disclose a cause of action rescission must be granted: see Bingali v Mondiya SC
91/86. The rule has been interpreted to mean that the grounds for rescission must be a good prima
facie defence. The rescission can also be granted partially: see Musakasa v Mimba SC 46/86.
Appeals [Order 31]
A litigant who is dissatisfied with the judgment of a court of the first instance may in certain
circumstances appeal against that judgment to a higher court. Not that all judgments are appealable,
for example, one cannot appeal against an interlocutory order or judgment; one has to obtain the
leave of the court and cannot appeal as a right.
Right of Appeal
Subject to the rule that no appeal lies if before the hearing is commenced the parties lodge with the
court a written agreement that the decision of the court is to be final, a party to any civil suit or
proceedings in the magistrates court may appeal as of right to the appropriate higher court from
certain types of judgments: see s40.
Noting of Appeal
Every party appealing must do so within the period and in the manner provide by the rules. The
court of Appeal may, however, in a case extend the period of notice of appeal on application. An
appeal may be noted within 21 days after the date of the judgment appealed against; or 14 days
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21 MY NOTES
after the delivery to the clerk of the court by the magistrate of a written judgment; whichever period
is the longer [R2(1) (a) and (b)].
An appeal from the magistrates court lies with the High Court. In terms of R2 an appeal is decided on
the record. The party appealing must tender security for costs of appeal. The rationale for this is to
ensure that the appeal noted is not done to harass or inconvenience the other party.
An appeal is noted by delivering a notice of appeal, that is, the notice must be filed with the clerk of
court and a copy must be served on the other party [Order 31R2(2). The notice of appeal shall state
whether the whole or part only of the judgment or order is appealed against and, if a part only, then
what part it is and the grounds of the appeal, specifying the findings of fact or rulings of law
appealed against [R2(4)].
Execution of Judgment Pending Appeal
It should be noted that no court has authority to order or give an order authorizing any party to
execute notwithstanding the notice of appeal. If a party wishes to execute he has to make a formal
application to court. The court has discretion whether to grant leave to execute pending appeal once
application is made. In exercising its discretion the court is guided by certain factors. These were set
out in a number of cases such as ZDECO Pvt Ltd v Commercial Careers College (1980) Pvt Ltd 1991 (2)
ZLR 61 (H) and Masimbe v Masimbe 1995 (2) ZLR 31 (S). A party applying for execution must show
special reasons why execution should be allowed. Also note s40(3) of the Magistrates Court Act.

CHAPTER 2
The Procedure of the Maintenance Court
Application for Maintenance Orders
The main statute is the Maintenance Act [Chapter 5:09].
Every magistrates court shall, within its area of jurisdiction, be a maintenance court for the purposes
of s3 of the Act. However, when a magistrates court is sitting as a maintenance court it is a separate
court, the rules are different and the Act is different.
Procedure for Bringing a Maintenance Claim
A complaint on oath is made to a maintenance officer of a maintenance court that a responsible
person fails or neglects to provide reasonable maintenance for any dependant of his. The
maintenance officer may issue a summons requiring the responsible person to appear before a
maintenance court to show cause why an order for the maintenance of the dependant should not be
made against him [s4(1)]. The complaint is in the form of an affidavit.
In terms of s2 a ‘responsible person’ means a person who is legally liable to maintain another. For
instance a husband is legally liable to maintain his wife and vice versa. Husbands and wives at
customary law are also primarily liable to maintain one another: see s6(3). The legal responsibility is
not indefinite: it lasts until the child is 18 or becomes self-supporting, whichever occurs sooner. For
spouses the obligation to maintain each other occurs during the marriage and extends beyond
marriage until death or remarriage.
In terms of s6(2) a maintenance court shall not make an order in favour of a dependant unless it is
satisfied that the person against whom the order is sought is legally liable to maintain the
dependant; and the person against whom the order is sought is able to contribute to the
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22 MY NOTES
maintenance of the dependant; and the person against whom the order is sought fails or neglects to
provide reasonable maintenance for the dependant. In making an order the maintenance court
considers:
1. The general standard of living of the responsible person and the dependant, including their social
status.
2. The means of the responsible person and the dependant.
3. The number of persons to be supported.
4. 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.
Note that the complaint may be made by the dependant or by some other person having the care or
custody of the dependant or by a probation officer.
Once the summons is issued, service on the respondent is by the messenger or the police for free.
On the date specified in the summons, an inquiry is made and is conducted in the presence of the
respondent or in his absence, after proof of service. The role of the presiding magistrate is different
from that in a normal trial in the magistrates court. The magistrate is not a passive umpire but plays
an active role in investigating the facts of the case: see s13. This is why it is an inquiry: see also
Zimunya v Zimunya HH 378/84.
A maintenance court can then make an order if it is satisfied that the person against whom the order
is sought is legally liable to maintain the dependant; and the person against whom the order is
sought is able to contribute to the maintenance of the dependant; and the person against whom the
order is sought fails or neglects to provide reasonable maintenance for the dependant [s6(2)].
Where the responsible person is employed the court can direct that the payment of the
maintenance order be made by the employer. The court can also order that the order be done
through the clerk of maintenance court.
Execution of Judgment Pending Appeal
If one is dissatisfied by the decision of a maintenance court one can appeal to the High Court in
terms s27. Note that, in terms of s27(3), pending the appeal they must pay. This is because the
appeal does not, pending the determination of the appeal, suspend the decision appealed against
unless the maintenance court, on application being made to it, directs otherwise, and for such
purposes the maintenance court may give such directions as it thinks fit. If one is successful on
appeal the court can order repayment of what was paid [s27(4)].
Enforcement of Maintenance Orders
There are basically four methods of enforcing maintenance orders:
1. By a direction against the employer in case of an employed person: see s9. The maintenance
officer shall issue a notice upon the responsible person and the employer, calling upon them to
appear before the maintenance court on a date to be specified in the notice and to show cause why
the direction should not be made or to consent to the making of the direction. The court can then
make a direction against the employer to make such payments in terms of the order, including any
arrears, as the court may specify. The employer will then deduct what is due in the maintenance
order from the person’s salary.
2. By way of prosecuting the responsible person (s23). It is a criminal offence not to comply with a
maintenance order. A person can be convicted and penalized for it.
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23 MY NOTES
3. By the methods provided in s22(2). The clerk of the maintenance court can, on behalf of the
person in whose favour a direction or an order registered in terms of s18 has been made, take such
steps for the civil enforcement of the direction or order as may be necessary. This means that the
clerk of the maintenance court is to enforce the order in the same way as a judgment of the
magistrates court.
4. The maintenance court can obtain a decree for civil imprisonment for arrears of maintenance.
It is also important to note s11 on the termination of maintenance orders and s12 on the variation
and rescission of maintenance orders. In respect of a child, an order terminates when the child dies
or is adopted, or if the child marries or reaches the age of 18 or becomes self-supporting. The order
can extend beyond 18 on application to the court. In respect of a spouse it terminates when the
spouse dies or remarries, or when an order of divorce or decree of nullity or an order for judicial
separation is made. Variation is granted in specific circumstances. If the circumstances have changed
an application for variation can be made on affidavit, stating the grounds on which the variation is
sought: see s8. An order can also be discharged in terms of this section.
Note that orders can be registered in terms of s18 in an appropriate court. Section 20 provides for
the transmission of orders from one district or province to another and the order can be registered
as an order of that court.

CHAPTER 3
The Procedure of the High Court
Jurisdiction
The High Court is created by the High Court Act [Chapter 7:06]. It has jurisdiction under both
common law and statute. However, note the provisions of s53 of the High Court Act. In terms of that
section, if somebody takes a matter to the High Court that could have been heard in the magistrates
court, then if they are successful they shall not recover any costs in excess of those that would have
been recovered if they had instituted the proceedings in the magistrates court. If they are not
successful, they will be ordered to pay costs of legal practitioner and clients on a higher scale.
Inherent jurisdiction
Only superior courts have inherent jurisdiction. It is the power of the court to deal with matters that
are incidental to the exercise of the jurisdiction that has been expressly provided for either under
statute or under common law. In terms of the common law the High Court has inherent jurisdiction
– it can order anything or determine any case that is not prohibited by law.
A number of cases deal with inherent jurisdiction:
1. Nyaguwa v Gwinyai 1981 ZLR 25, where it was held that neither the High Court nor any other
court may overrule the decision of another court save to the extent that the power to overrule such
a decision has been conferred upon it by statute. On the facts, the court held that the application by
the petitioner should be dismissed because the High Court had no jurisdiction to interfere with the
proceedings of the magistrates court.
Read also Granger v Minister of State (1984 (1) ZLR 194 and Midlands Chemical Industries Pvt Ltd v
Scotfin and Anor HH 20/91

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24 MY NOTES
The latter case involved a sale in execution by public auction by the messenger of court in which
there were certain irregularities. The applicant, who was the judgment debtor in the magistrates
court, sought to have the sale set aside on the basis of these irregularities. It was argued, amongst
other things, on behalf of the second respondent, who was the purchaser of the property, that
although the High Court has inherent jurisdiction to restrain irregularities in the proceedings of
inferior courts, this inherent power remained to be exercised only where the civil court rules gave no
express remedy. Held: at the time the magistrate court civil rules SI 290/80 did not provide for the
rescission of sales in execution, so this was a proper case in which the High Court should intervene.
On the merits, the court decided that the messenger of court did not adhere to the principles of
justice as required by the common law and thus the court granted the application to set aside the
execution.
Bheker v Disablement Benefits Board SC 45/94 1994 (1) ZLR 353
Chief Justice Gubbay, as he then was, quoted the approval by the SA case of Chunguete v Minister of
Home Affairs and Ors 1990 (2) SA 836, in which Flemming J stated at 848 G–H:
what is appropriately inherent jurisdiction is related to the court’s function towards securing
a just and respected process of coming to a decision and is not a factor which determines
what order the court may make after due process has been achieved. That is a function of
the substantive law. The court always is charged with holding the scales of justice. It is not
within its task to add weights to the scales by detracting from a right given by a substantive
law or granting a right not given by the substantive law.
Held: the Supreme Court had inherent jurisdiction dealing with matters such as the appellant case
like the High Court. The court further held that the inherent jurisdiction of the Supreme Court
extended only to procedural matters. Held also: the exercise of the inherent jurisdiction was entirely
within the discretion of the court.
Statutory limitations on jurisdiction
The Supreme Court is only an appellate court. In s24 of the Constitution, where a person is alleging
the violation of the bill of rights he can apply to the Supreme Court. In that case the court has
original jurisdiction: see Granger (supra) and Conjwayo 1991 (1) ZLR 105.
In re Mulambo 1991 (2) ZLR 339. The case was referred to the Supreme Court in terms of s24(2) of
the Constitution and it was referred by a magistrates court. The applicant alleged that his rights to
be afforded a fair hearing within a reasonable time as required by s18(2) of the declaration of rights
has been infringed. Held: the applicant’s rights in terms of s18(2) for a fair trial had been infringed
and the court ordered that the proceedings against the applicant should be permanently stayed.
S37A of the National Social Security Authority Act allows parties to present a special case on issue of
law before the Supreme Court.
In terms of s71(1) of the Patents and Trademarks Act the patents tribunal can assume the role of the
Supreme Court in specified matters. In terms of s19(1) of the Liquor Act an appeal against a decision
of the Liquor Licensing Board goes to the administrative court and not to the Supreme Court.
In terms of s22(2) of the Water Act, as repealed and substituted by s19 of Act 39/79, the
administrative court has exclusive jurisdiction in regard to applications on the use of public water
and disputes regarding the use of public water. R18 of the High Court prohibits the issuing of

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25 MY NOTES
summons against judges of the High Court and the President in his official capacity, except with the
leave of the court.
Common law limitations
1. Persons who are fugitives from justice have no audience in the court. For example, a person who
has avoided meeting his legal obligations.
2. The situation is the same with respect to alien enemies, that is, any citizen of a foreign country
that is at war with Zimbabwe.
3. Subject matter outside the jurisdiction of Zimbabwean courts includes, for example, immovable
property situated outside Zimbabwe. In this case audience must be sought in a court where the
property is situated.
4. Revenue law is subject to bilateral agreements but the revenue laws of another country cannot
be enforced in Zimbabwe.
5. Political law formed in other country does not apply in Zimbabwe.
General Principles
Principles of common law on the which jurisdiction of High Court is exercised
1. Actor sequitor forum rei. The plaintiff follows the defendant to his or her forum (the court with
jurisdiction over that person). The High Court has jurisdiction over all persons domiciled in
Zimbabwe. Domicile is the place that a person regards as a permanent home. If the person is
resident in Zimbabwe the court has jurisdiction. In cases where they have some interests in
Zimbabwe the court has jurisdiction: see s13 High Court Act.
2. Doctrine of submission. At common law a person who is neither resident nor domiciled in
Zimbabwe can submit to jurisdiction.
3. Doctrine of effectiveness. The court refuses to exercise jurisdiction in certain instances if it has
determined that their judgment will not be enforceable in Zimbabwe (thus avoiding brutum fulmen –
empty threats).
Jurisdiction in Particular Proceedings
Claims Sounding in Money (for Payment of Money)
The important consideration is whether the party is an incola or a peregrinus. An incola is a person
who is either domiciled or resident within the court’s jurisdiction. A peregrinus is a person who is
neither resident nor domiciled in Zimbabwe or within the court’s jurisdiction. With these claims,
therefore, the main principle is the actor sequitur forum rei.
Different principles apply whether the plaintiff is an incola or a peregrinus.
Incola plaintiff v peregrine defendant
There are three different circumstances in which the courts have jurisdiction at common law.
1. If the defendant submits to the court’s jurisdiction (doctrine of submission).
2. If it is the court within whose area of jurisdiction the cause of action arose. Cause of action is not
enough because of the doctrine of effectiveness. The court will not hear the claim unless the
peregrine defendant either has property in Zimbabwe that can be attached to confirm the
jurisdiction of the court or the peregrine defendant is in Zimbabwe and can be arrested to confirm
the jurisdiction.
Thermoradiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 AD. The plaintiff
was incola and the defendant peregrinus. The plaintiff purchased a bakery oven from the defendant
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26 MY NOTES
for R16 000. The oven was installed in the plaintiff’s bakery. The plaintiff had paid almost R13 000
upon delivery. The balance of about R3000 would become payable after the oven had been tested
and found to be satisfactory. The oven was found not to be in accordance with the warranties given.
The plaintiff cancelled the contract and claimed damages of R22 000. The defendant denied liability
and counter-claimed the outstanding balance of R3000. The plaintiff applied to attach the
defendant’s claim to found jurisdiction. The plaintiff succeeded and the defendant appealed. Held: it
is established that an existing claim by the prospective peregrine defendant against the prospective
incola plaintiff is attachable to found jurisdiction in the proposed action. However, the plaintiff
cannot attach a claim which it is denying – cannot approbate and reprobate. The value of the
property to be attached should bear some relationship to the claim. The court said that the property
should confirm to the requirements of the doctrine of effectiveness, although it does not have to be
sufficient to satisfy the judgment that may be given in the case – it must not be of trifling value.
3. Where there is attachment of property or arrest of the peregrine to found and create jurisdiction.
Central African Airways Corporation v Vickers Armstrong Ltd 1956 (2) SA 492. This was an appeal
from the decision of the HC-S-Rhodesia. The claim arose from the loss of an aircraft while on a flight
over Tanganyika (Tanzania). The plaintiff was incola and the defendant peregrinus. The aircraft had
been supplied by the defendant. The crash was caused by the breakup of the aircraft following the
fracture of a wing, which was caused by the corrosion of a bolt hole. It was alleged that the
defendant had been negligent in that he had used an unplated bolt that was susceptible to corrosion
and yet did not make the bolt accessible to inspection nor indicate that inspection was necessary.
The plaintiff’s claim was for $199.84 and the plaintiff sought to attach a debt owed to the defendant
of $399. The plaintiff sought to attach to found jurisdiction. The court discussed the relevant
authorities of arrests and attachments to found jurisdiction and concluded that the Roman-Dutch
common law position is that an incola plaintiff can attach the property of the peregrine. The
defendant to found jurisdiction, even though there was no other ground to jurisdiction.
Peregrine plaintiff v peregrine defendant
The court has jurisdiction if the cause of action arises within its area and there is attachment of
property or arrest of the peregrine defendant to confirm jurisdiction; or if there is submission to the
jurisdiction of the court. By instituting proceedings in that court the defendant would have accepted
jurisdiction.
S15 of the High Court Act provides that the actual attachment of the property or the actual arrest of
the defendant is not necessary as long as it has been established that there is indeed property that
can be attached within the jurisdiction, or that the peregrine defendant is actually within the
jurisdiction and can be arrested. This was emphasized in ex parte Motor Construction Ltd 1962 (2)
SA 664. Facts: Application for leave to attach an asset in order to confirm jurisdiction. To found
jurisdiction was wrong because the plaintiff was incola. The defendant was a peregrine from
Portuguese East Africa. The property attached was a bulldozer engine that was within the court’s
jurisdiction.
The court confirmed the meaning of s15, which states that no actual attachment is necessary unless
there are special reasons. The court gave examples where the plaintiff must seek actual attachment:
1. Where the property attached to found or confirm jurisdiction is the subject matter of dispute in
question, so as to prevent its removal from other jurisdiction.
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27 MY NOTES
2. Where the property sought to be attached to found or confirm jurisdiction is the only property
that the peregrine defendant has within the jurisdiction and there is a danger of its removal from its
jurisdiction.
The court emphasized that it is important to state the value of the property if the plaintiff seeks
attachment, because if the value greatly exceeds the claim then it might be inequitable to attach.
Conversely if the value is much less than the claim, although not trifling then it might not be
necessary to order attachment. In this particular case leave to attach property was granted because
there was a danger it might be removed.
S15 does not create a new ground for jurisdiction for the High Court in situations where the
defendant is peregrine. Where neither the peregrine defendant nor his property is within the
jurisdiction of the High Court then the court has no jurisdiction. See African Distillers Ltd v Zietkiewiz
1980 ZLR 135. Both the plaintiff and defendant were peregrine. This was an action for damages
arising from breach of contract and the parties were seeking to rely on s15. The court had no
jurisdiction because neither the property of the peregrine nor the person was available within the
jurisdiction of Zimbabwe for attachment or arrest.
Artificial persons
1. An artificial person such as a company incorporated in Zimbabwe or if it is registered in
Zimbabwe is an incola. All those incorporated outside Zimbabwe are peregrine.
2. An artificial person whose principal place of business is situated within the court’s area of
jurisdiction is also incola. See Beckett and Co Ltd v Kroomer Ltd 1912 A.D. 302 at 310.
Claims Relating to Property
In respect of immovable property the court has jurisdiction if it is the court within whose area of
jurisdiction the property is situated (Eilon v Eilon 1965 (1) SA 703 AD). In relation to movable
property the situation is the same. The court has jurisdiction if it is the court within whose
jurisdiction the property is situated at the time of the institution of the proceedings. This issue was
discussed in the case of Voicevale Ltd v Freight Link Malawi 1987 (2) ZLR 22. Both parties were
peregrine. The plaintiff had sold the defendant a quantity of peas in Malawi for delivery to India via
Harare and Beira. Half of the peas were shipped to India in terms of the contract, but while the other
half was still in Harare the defendant terminated the contract. The plaintiff applied to the High Court
for leave to attach a consignment in Harare, confirm jurisdiction of the court and claim for specific
performance. The High Court decided against the plaintiff on the basis that the intended action was
a personal right rather than a real right. Alternatively, the High Court refused application on the
basis that the balance of convenience was in favour of the matter being heard in Malawi rather than
in Zimbabwe. On appeal the Supreme Court held that the High Court had jurisdiction on the basis of
forum rei sitae (the court of the place where the property was situated), and this applies whether
the right claimed in relation to a particular property is a real or personal right. Read: A critique of the
above by P. Nherere 1986 ZLRev Vol. IV 173.
Matrimonial Matters
1. At common law
(i) Divorce
The court that has jurisdiction at common law is the court of the matrimonial domicile at the time of
institution of proceedings. This is the husband’s domicile. Le Mesurier v Le Mesurier and Ors 1895 AC
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28 MY NOTES
517. Held: according to the common law the domicile for the time being of the married pair affords
the only true test of jurisdiction to dissolve their marriage (page 540).
Glen v Glen 1971 (3) SA 238. The applicant instituted matrimonial action against the defendant
seeking a decree of divorce on the ground of cruelty. The respondent counter-claimed for divorce on
the grounds of adultery. In addition, the respondent filed a special plea in bar on the ground that the
court had no jurisdiction because he was born and domiciled in Zambia. In that case the matrimonial
home was Zambia. Held: it was well established that the only court that has jurisdiction to entertain
an action for divorce is the court in whose area the parties are domiciled at the time of the
institution of the action (page 240).
Note. Institution of proceedings means time summons has been issued.
(ii) Judicial separation
There are three grounds on which the court can have jurisdiction: if it is
(a) the court of the domicile or residence of the parties at the time of institution of
proceedings for judicial separation
(b) the court of domicile of either party at the time of institution of proceedings
(c) the court of the area of the celebration of marriage.
These apply in the alternative.
(iii) Nullity (decree of nullity)
This depends on whether the marriage is void or voidable. With a void marriage it is invalid but a
voidable one is valid until it is set aside.
There are grounds on which the court can have jurisdiction in case of a void marriage:
(a) court of area of celebration of a putative marriage
(b) court of area of common domicile
(c) court of the area of the plaintiff’s domicile
(d) court of the area of the defendant’s domicile
Ex parte Oxton 1948 (1) SA 1001 CPD. The applicant applied for leave to institute proceedings for
decree of nullity by a process called edictal citation. The parties had been married in England in
1936. The applicant subsequently discovered that the respondent was married in 1929; a marriage
which still subsisted. The applicant had emigrated to the Cape in South Africa in 1947. Held: despite
the fact that the marriage had been contracted beyond the court’s jurisdiction (England) and the
respondent had never been resident or domiciled in the Cape the court had jurisdiction by virtue of
the applicant’s domicile.
Ex parte Cathrall 1965 (2) SA 505 NPD. Application to sue by edictal citation. The applicant was born
in England. She had married the respondent in 1963 and the parties separated 2 months later. She
returned to England but the responded remained in Australia. The respondent was a Zulu man born
in Durban, South Africa, and who resided in Natal until February 1963, when he sailed to Australia as
a seaman and decided to stay there. The applicant had information from a newspaper report that
the Australian Immigration Department had allowed the respondent to stay in Australia. The
applicant applied for nullity of marriage on the ground that it violated the Prohibition of Marriages
Act of 1959. Held: court had jurisdiction because the respondent was domiciled in South Africa
irrespective of the fact that they had been allowed to stay in Australia.

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29 MY NOTES
Note. Under common law, the law relating to voidable marriages is similar to the common law
relating to divorce. The court of the matrimonial domicile has jurisdiction: see ex parte Oxton (supra)
(pages 1014–1015).
2. Under Statute
The important provision is s3 of the Matrimonial Causes Act [Chapter 5:13] 33/85. It gives the High
Court additional jurisdiction if the plaintiff or applicant is the wife. It applies to cases of divorce,
judicial separation and nullity of marriage.
There are three specific situations:
(i) S3(a) if the wife has been deserted by the husband and immediately before the desertion
the husband was domiciled in Zimbabwe; even if the husband has since changed domicile
after the desertion
(ii) S3(1)(b) if the marriage was celebrated in Zimbabwe and the wife was resident in
Zimbabwe for a period of at least 2 years immediately before the date of the commencement
of action and is still resident in Zimbabwe at the time of commencement of action; even if the
husband has never been domiciled in Zimbabwe
(iii) S3(1)(c) if the wife is a citizen of Zimbabwe at the time of commencement of action and
she has been ordinarily resident in Zimbabwe for a period of at least 2 years and is still
resident in Zimbabwe.
See Kennedy v Kennedy 1978 RLR 58, Braimah v Braimah HCH 66/96, Mandbaur v Mandbaur 1983
ZLR 26.
Parties
Legal Capacity
The parties need to have legal capacity to sue or defend proceedings. Legal capacity is also referred
to as locus standi. It is legal capacity in the sense of having an interest in the subject matter of suit.
Necessity for Zimbabwe Teachers Association Ors v Minister of Education and Culture 1990 (2) ZLR
48. Exception: Class Actions Act [Chapter 8:17]. Petho v Minister of Home Affairs and Anor HH
221/2001
Need to establish locus standi in commencing papers: Alino and Anor v Alino HH 181/90, Public
Service Association v Chitsaka and Ors HH 64/93.
1. Legal capacity in general: locus standi in judicio
Natural persons
General rule: every natural person has the right to sue and be sued.
Certain classes of natural persons whose legal capacity is varied and who are under a disability in this
respect:
1. Minors. In general a minor has no locus standi in judicio. They may sue or be sued, either:
(i) in the name of the guardian: see Walt v Hudson and Moore (1986) 4 SC. 327 or
(ii) in his own name assisted by his guardian: see Willmer v Rance (1904) 21 SC 423.
If there is no guardian or where a possible conflict of interest with the guardian exists then it is
necessary for curator ad litem to be appointed. In certain exceptions minors have locus standi in
judicio; namely, when the minor is emancipated or in exceptional circumstances: see ex parte
Goldman 1960(1) SA 89 (D).

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30 MY NOTES
2. Married women. When a woman is married in community of property and her husband institutes
the action: see Married Persons Property Act [Chapter 5.12]. See Jenah v Nyemba 1986 (1) ZLR 138
for customary marriages. In certain exceptions marital power is excluded: the woman is married in
community but has capacity.
3. Mentally defective or disordered persons. These must be legally declared to be mentally
incapacitated and can be represented by a curator ad litem: see R249.
4. Prodigals. A prodigal is a person who is financially irresponsible and is represented by a curator
bonis or curator ad litem: see Ndhlela v Ndhlela HH 226/86.
5. Insolvents. The right to sue and be sued of an insolvent is vested in the trustee of the insolvent
estate. There are exceptions in subsections 10–15 s35 of Insolvency Act [Chapter 6.04].
6. The President and Judges. See Order 3 R18 of High Court Rules and s30 of the Constitution. In
their personal capacity they cannot be sued. In their official capacity they can be sued with the leave
or permission of the court in terms of R18 of the High Court Rules. Leave to sue a judge is also
required.
7. Alien enemy. An alien enemy cannot sue but can be sued.
8. A fugitive from justice cannot sue: see Minister of Home Affairs v Bickle 1983 ZLR 99.
9. Members of Parliament. They cannot be sued in respect of statements they utter in Parliament.
They are immune terms of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08]
and Diplomats (Privileges and Immunities Act Chapter 3:03).
10. Diplomats and foreign governments. They have immunity in terms of the Privileges and
Immunities Act [Chapter 3:03]. However, the immunity extends only to acts of a governmental
nature and not to ordinary commercial transactions: see ICRC v Sibanda and Anor SC 48/2003.
Artificial persons
Those having locus standi:
1. The government: see State Liabilities Act [Chapter 8:14].
2. A minister; nominal defendant or respondent: s3. The minister must be cited by official title and
not name: s4.
3. Local authorities.
4. Bodies specifically incorporated by Statute, for example, universities, the Electricity Supply
Commission.
5. Companies incorporated under the Companies Act [Chapter 24:03].
6. Co-operatives incorporated under the Co-operative Societies Act [Chapter 24:04].
7. Common law universities.
Three elements are required:
1. The person must be an entity distinct and separate from individual members.
2. The person must have perpetual succession.
3. The person must be capable of owing property apart from its members: see Morrison v Standard
Building Society 1932 A.D. 229, Moloi St John Apostolic Faith Mission 1954 (3) SA 940 (T): see also
Herbstein and Van Winsen, page 156.
Those not having locus standi:
1. Partnership. Order 2A of High Court Rules. Partnerships now have locus standi to sue and be sued
in their own name: see revised Order 2.
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31 MY NOTES
2. Voluntary association not being a universitas [Order 2A] of High Court Rules.
Specific capacity to institute or defend particular proceedings
A person must have an interest in the matter to institute proceedings. This has been described as
direct and substantial interest and real interest: see Zimbabwe Teachers Association and Ors v
Minister of Education and Culture 1990 (2) ZLR 48. These were teachers who had been dismissed in
terms of the Emerging Powers Maintenance of Essential Services Regulations sI 160A/89. The
Zimbabwe Teachers Association sought an order seeking the reinstatement of the teachers. The
dismissed teachers were also part of the plaintiff. The point in limine was whether ZTA had and
whether the three dismissed teachers who sought to be involved in the proceedings could be joined
at that stage. On the first matter the court ordered that the teachers had a real and substantial
interest in the matter. Secondly, the three teachers had sufficient interest in the matter to be joined
as parties.
Form of Proceedings
There are two basic forms of procedure which may be used for instituting proceedings in the High
Court: (i) application and (ii) action. An action commences by a summons, followed by a set of
pleadings and a trial at which oral evidence is submitted. An application commences by a Notice of
Application supported by an affidavit, followed by a set of affidavits and decided on the affidavits.
Instances Where Application Proceedings Are Not Permissible
1. Matrimonial matters (main claim) incidental issues like custody and maintenance pendente lite
can be by application.
2. Unliquidated damages that is, damages yet to be assessed by the court: see Room Hire Co v Jeppe
Street Mansions 1949 (3) SA 1155.
3. Provisional Sentence Matters [Order 4 R20 specifically says application should be by way of
summons.
4. Civil Imprisonment (041 R368).
Instances Where Application Must Be Used
Where directed by Stature, for example, insolvency proceedings
Instances Where Application Procedure Permissible but Not Essential
1. In a straightforward money claim where no opposition is anticipated then it is less expensive to
use an action and application procedure. Choose the less expensive one because by using the more
expensive one the practitioner will be penalized with costs.
2. Whether or not there is a material dispute of fact. If there is a material dispute of fact do not use
application proceedings: see Herbstein and Van Winsen, pages 63–64; see Regal Trading Co (Pvt) Ltd
v Coetzee 1956 (1) SA 766, Miller v Roussot 1975 RLR 324, Zimbabwe Freight Co Ltd v S & T Import
1981 ZLR 361, Bevcorp (Pvt) Ltd v Nyoni and Ors 1992 (1) ZLR 352.
Procedure where dispute of fact arises in application
The court decides whether there is a material dispute of fact but there must be some evidence to
support an averment of dispute of fact. A bald averment is not sufficient. The court must not
hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. It should
adopt a robust view and endeavour to resolve the dispute without hearing evidence, if this can be
done without doing injustice to either party: see the Room Hire case and Soffiantini v Mould 1956 (4)

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32 MY NOTES
SA 150, Joosab and Others v Shah 1972 (4) SA 298 (R), Masukusa v National Foods Ltd 1983 ZLR 232,
Zimbabwe Bonded Fiberglass P/L v Peech 1987 (2) ZLR 338, Shana v Shana 1990 (2) ZLR 129.
If the court decides a dispute of fact is material and cannot be resolved on affidavit evidence then
the court may:
1. Dismiss the application: see Room Hire case and Masukusa v National Foods case.
2. Order the parties to trial: see Order 23 R159(b), Room Hire case, Duly’s (Pvt) Ltd v Brown S.
172/93, Jongani v Kadenhe s24/92.
3. Order that oral evidence be heard [O 23 R.159(a): see Bhura v Lalla 1974 (2) SA 336 (RAD), Barklie
v Bridle 1959 (2) SA 102 (R).
Advantages and disadvantages of alternative procedures
See ‘Application v Trial’ by Findlay 1951 SA LF 20.
Proceedings by Way of Action
Commencement of Proceedings
Action is commenced by way of a summons.
Demand
There are two instances where a demand is necessary:
1. To safeguard the costs of summons if the plaintiff does not make a demand but serves 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.
2. Where a demand is required to complete the cause of action. Examples are (i) by statute, for
example, the State Liabilities Act: 60 days’ notice is required when suing the State; (ii) by agreement
between the parties; and (iii) where a demand is required to place the debtor in mora.
Pleading of demand
It must be pleaded where it is necessary to complete the cause of action.
Form and contents of demand
Need not be in writing unless this is stipulated by statute or agreement. It is, however, prudent to
make it in writing for evidential purposes. It can be done by the creditor himself or by someone
representing him. The demand must give sufficient detail to enable the debtor to know upon what
basis the creditor claims the relief. It must also give the debtor reasonable time in which to comply.
It is not necessary to threaten legal action in a demand.
Summons [Order 3 R9–12, 14–16 and 19 of High Court Rules]
The form to use in the summons is Form No. 2, but a special summons (Form 30A) is used in
matrimonial proceedings; that is, divorce or judicial separation.
R10. The summons must call upon the dependant to enter appearance to defend if he intends to
oppose a plaintiff’s claim. The appearance to defend must be entered at the registry specified in the
summons. For purposes of civil cases the High Court has two registry offices in Harare and Bulawayo.
The summons will also require the Sheriff or his Deputy to serve a copy of the summons on the
defendant and make a return of service.
The contents of the summons
R11. The summons must state the full name and the residence or place of business of the defendant.
It should be stated whether the defendant is sued in a representative capacity and also the capacity
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33 MY NOTES
in which he is being sued. If the defendant’s full names are unknown state the initials, full names and
address of service of the plaintiff. State whether plaintiff is suing in a representative capacity, date of
issue as seen from the date stamp, and state concisely the nature, extent and grounds of the cause
of action and the relief sought.
The summons should give the defendant time upon which to enter appearance to defend (dies
induciae) and it is 10 days in the High Court [R17]. It excludes holidays and weekends [Order 1 R4A].
If the claim is for a debt or liquidated demand the particulars of the claim can be endorsed on the
summons. A declaration does not need to be filed.
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, or a claim of a specific thing: see Dark v Davies 1946 SR 54.
Examples of claims for a debt or liquidated damages are:
1. A claim for an order declaring specially hypothecated property in a mortgage bond to be
executable (sold in execution). The claim was held to be a claim for a liquidated demand in Fred and
Anor v Keelan 1951 SR 7.
2. A claim for an amount due in terms of a deed of dissolution of partnership. Mohr v Krier 1953 (3)
SA 600.
3. A claim for a statement of account, debating of such account and payment of money owing to
the account. SA Fire from Accident Insurance and Co Ltd v Hickman 1955 (2) 131.
4. A claim for money stolen by the defendant from the plaintiff was held to be a claim for debt or a
liquidated demand but the claim for the value of goods stolen by the defendant was held to be
unliquidated. Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498: see International Hardware
Cooperation Pvt Ltd v Appleton 1971 (1) SA 404, where the same decision was reached, namely, that
a claim for stolen money is a liquidated demand and a debt.
5. 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. Standwin Investment Pvt (Ltd) v Helfer 1961 (4) SA 470. The case
involved a claim for the return of a truck, failing which a payment of £500, which was the value of
the truck. An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956 RN 148 and
Fatti’s 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 Munyembe 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 a storekeeper for the plaintiff and signed an undertaking to pay if there was a
shortfall.
6. A claim for confirmation of cancellation of an agreement of sale of certain immovable property
and ejectment of the defendant from the property was held to be a debt or liquidated demand: see
Brooks and Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA.
7. A claim based on a foreign judgment was held to be a claim for a debt or liquidated demand: see
Atlas Assurance Co Ltd v Goodman 1955 SR 328.
Morris v Stern 1969 RLR 427. A claim for ejectment was held to be a claim for a debt or liquidated
demand. A claim for holding over damages in respect of ejectment proceedings was held to be a
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34 MY NOTES
claim for a debt or liquidated demand because the damages were easily ascertainable, simply by
looking at the rental value of the property and also the period during which the lessee was in
unlawful occupation: see Dube v Sengwayo High Court 110/91.
Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 11.92. A claim for the refund of $14 700 due to
the defendant’s failure to supply 60 000 bricks. This claim was held not be for damages readily
ascertainable and was therefore liquidated.
In Midsec (Pvt) Ltd v Ors v Standage HB 64/94 the claim was for a $100 000 payment based on a
document that 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 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.
Declaration [Order 17]
A Declaration is a statement of the plaintiff’s claim and must set out the nature, extent and grounds
of the cause of action and the relief claimed [[R109 and 110 (2)]. Where the relief claimed is founded
upon separate grounds, the grounds must be stated separately and distinctly [R111].
The plaintiff may in declaration amend the claim/s stated in the summons provided that if the
amendment causes prejudice the court may award costs to cure prejudice [R115].
The plaintiff may file and serve the declaration with the summons or any time thereafter [R113].
However, if an appearance to defend is entered by the defendant and the plaintiff fails to file a
declaration within 12 days of such entry the defendant may give notice of an intention to bar [R112].
If the plaintiff has served a declaration before the dies induciae have expired and the defendant
tenders to satisfy the plaintiff’s claim in full, the plaintiff will not recover the costs of Declaration
unless he is able to show good cause [R114].
Summons deemed to be amended by claim stated in the Declaration [R115].
Service
Rules 35–43 and s20(1) and (2) of the High Court Act.
All processes of the High Court have to be served by the Sheriff or his Deputy or assistant Deputy
[R37(1)].
S20(2) allows the Sheriff to give special directions for the service of any particular process by some
person other than a duly appointed Deputy Sheriff or assistant Deputy Sheriff.
S20(3) provides that the return of service of the Sheriff or Deputy or assistant Deputy Sheriff shall be
prima facie evidence of the matters stated in it [R42B(1) (a) Form 5A].
S20(1) Any service in contravention of that provision will be invalid: see Wattle Company (Pvt) Ltd v
Inducom (Pvt) Ltd 1993 (2) ZLR 108.
Process such as summons must be filed with the Registrar. Service before filing is invalid: see
Mandaza v Mzilikazi Investments (Pvt) Ltd HB 23/07. Service of any process affecting the liberty of
that person or which has the effect of changing one’s status, like divorce, must be delivered
personally [R39(1)]. Any other service of process can be done by delivery to that person or to a
responsible person at the residence or place of business of that person [R39(2)].

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35 MY NOTES
Service within jurisdiction
Order 5 R 35–43: see Wattle Company case. IN the service of any other process, if it is by a legal
practitioner or a responsible person employed by a legal practitioner, the proof of service is in Form
6 or 7 [R42B(1)(b)]. IN a service by any other person the proof of the service has to be by affidavit
[R42B(1)(b)].
Service of process in proceedings against State
S5 of the State Liabilities Act. Order 5A R 43A–43D as read with the Seventh Schedule to the Rules.
Substituted Service
This is resorted to when a party is unable to effect service as stipulated in the Rules. They may make
an application for substituted service [Order 6 R46].
Service outside jurisdiction
To serve outside jurisdiction one must obtain leave either by way of court or Chamber Application.
Order 6 R44 and 45. R45 deals with service in South Africa, Namibia, Lesotho, Swaziland or
Botswana; serviced by a Sheriff or Deputy Sheriff of the country or province in which the defendant
is residing. If the person serving is a Deputy or underSheriff there should be a certificate from the
Sheriff that the person was indeed appointed. In other cases follow R44 that seeks leave of the court
or judge seeking permission to serve outside the country. The court would order the manner of
service. In an application give the following information:
1. The facts in which cause of action is based.
2. The grounds on which the court has jurisdiction in entertaining the claim.
3. The proposed manner of service.
4. The last known whereabouts of the person to be served. Give details of the enquiries that have
been made to ascertain the person’s whereabouts.
Further Procedure When Action is Uncontested
Judgment by Consent
Order 8 R53–55
In terms of R53 the defendant can consent to judgment at any time after the service of summons
except in in matters affecting status, for example, divorce matters. The consent to judgment has to
be in writing and signed by the defendant personally or by his/her legal practitioner. If the consent is
signed by the defendant him/herself then the defendant’s signature must be verified by affidavit and
the affidavit is to be by a person other than the defendant himself. It can also be verified by the
signature of the legal practitioner acting for the defendant. The requirements of R54 are
compulsory. If they are not followed the consent is invalid: see Washaya v Washaya 1989 (2) ZLR
195. Judgment by consent was entered in terms of an apparent settlement. It later turned out that
the counsel for the respondent had no authority to settle the matter. He had simply presumed that
his client would ratify his action. The judgment was rescinded and costs de bonis propriis were
awarded against the legal practitioner who had consented to judgment without the client’s
authority. If the consent is filed in a proper form, then judgment by consent will be met through the
chamber application R55. R56 gives the court authority to set aside a judgment given by consent on
good cause shown.

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36 MY NOTES
Judgment in Default
A default judgment is entered against a defendant in default of appearance to defend, in default of
plea, in default at trial and also where there is a failure to comply with discovery and default at
Pretrial Conference.
Claim for debt or liquidated demand
R57. If the claim is a debt or liquidated demand and no appearance to defend has been entered, the
plaintiff can make a chamber application for default judgment.
Claim not for debt or liquidated demand
If the claim is not for a debt or liquidated demand then the procedure, if there is default to
appearance, is set out in R58. The plaintiff must file and serve his/her declaration if that has not yet
been done. If the defendant remains in default after the service of the declaration then the plaintiff
may proceed to make a court application for a default judgment by setting the matter down for
hearing in terms of R223(1). The court will then consider the matter except that where it is a claim
for damages the court will require evidence as to the quantum of damages [R60]. The evidence to
quantum can be by way of an affidavit and not oral evidence. The affidavit should be filed within a
specified time limit, as follows:
1. If the matter is set down for hearing in Harare then the affidavit must be filed by 10.00 am on the
Friday immediately preceding the Wednesday on which the case is set down for hearing. Unopposed
applications are heard on Wednesday in Harare.
2. If the matter is set down for hearing in Bulawayo then the affidavit must be filed by 10.00 am on
the Wednesday immediately preceding the Friday on which the case is set down for hearing.
See Knight NO v Harris (1962 (2) SA 317 (SR) 4. In situations where there is default of plea the
plaintiff must first of all bar the defendant by a procedure called ‘barring’ after giving notice of
intention to bar. Once the defendant has been barred then the procedure is the same as in R59: set
down.
Default at trial
If the defendant is in default at trial in terms of R59A the court may proceed to grant a default
judgment without hearing any evidence at all if it is not a claim not for damages. If it is for damages
the court will hear evidence on the issue of quantum [R60]. If the plaintiff is in default, the plaintiff’s
claim will be dismissed in terms of R61. In terms of R62 the court may actually absolve the
defendant: see Mpehlani v Expert Panel Beaters and Spray Painters (Pvt) Ltd 1993 (2) ZLR 212 (SC).
The plaintiff claimed damages from the defendant for negligent repairs to the car. The defendant
entered appearance to defend and filed a plea in which he denied negligence and defaulted at trial.
Counsel for the plaintiff led evidence on the quantum of damages and not on liability despite the
trial judge’s indication that this is necessary, as per the case of Dunlop v West. The trial court
dismissed the claim and the plaintiff appealed to the Supreme Court. The Supreme Court held that
negligence was put in issue by the defendant’s plea and therefore had to be proved. The appeal was
dismissed.
Uncontested Divorce Order
Everything that has been said on default judgments does not apply to divorce, judicial separation
and nullity of marriage and restoration of conjugal rights. If there is a matrimonial claim and there is

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no appearance to defend what one does depends on the type of summons used: either an ordinary
or a special summons.
If ordinary summons are used one is required to take the following steps:
1. File and serve the declaration if this has not already been done.
2. If there is still no response, do a notice to plead in terms of R27 2(1)(a).
3. The notice of trial, if there is no response to the notice to plead. This is the notice that the matter
is being set down for hearing. The notice will contain the actual date on which the matter is to be
heard. The notice must be served personally on the defendant. The practitioner should apply for
substituted service if he cannot do so himself: see Le Roux v Le Roux 1957 Rand N 831 SR. The
plaintiff sued the defendant for a final order of divorce. The defendant was in default. The plaintiff
was unable to effect personal service of the notice of trial because the defendant moved from place
to place. The plaintiff sought to testify that she had seen the defendant and informed him of the
date of set down. Held: the plaintiff’s evidence could not substitute for the proper service of the
notice of set down because she was an interested party and she had been informed in a casual
manner. The matter was postponed indefinitely sine die to allow proper service.
The notice of plead and of trial can be served together in a combined document called notice to
plead or trial. If the proceedings need to be quicker the defendant can waive the time limit required
for filing the documents.
Issues relevant either using general and special summons.
1. Consent paper. The parties should agree on the ancillary issues such as maintenance and
property sharing. The consent paper must be filed together with the papers for the hearing of the
divorce and it will be incorporated into the court order. Note. One cannot consent to divorce.
2. Service of papers on a person named to have committed adultery. [Order 35 R273(1) and (2)]: see
Cloete v Cloete 1951 SR 121. The plaintiff sought divorce against the defendant on the grounds of
adultery. The person with whom the defendant was alleged to have committed adultery with was
not cited as co-defendant but mentioned by name in the declaration. Held: the declaration and
summons should have been served on the named person to give him an opportunity of appearing
before the court and clearing his name: see De Salis v De Salis 1957 R & N 663.
The person who is named for adultery can actually waive the right to have the papers served on her.
See Mayhew v Mayhew (1972) RLR 55. The plaintiff brought an action for divorce in which he sought
condonation of his own adultery with a named woman. The woman had supplied an affidavit in
which she admitted that she had committed adultery with the plaintiff and stated that the plaintiff
intended to marry her and she waived her rights to service of the relevant documents. The waiver
was accepted.
Set down is in terms of R223(1) (c). The notice is to be accompanied by a draft order of the type you
want the court to issue. If the court agrees, it grants the order in terms of the draft.
Evidence will also be needed to satisfy the court that there are grounds for divorce. R277B allows
the plaintiff to give their evidence in the form of an affidavit. There is a time limit to file an affidavit.
If the matter is set down in Harare, file at 10.00 am on the Thursday immediately preceding the
Wednesday on which the matter is to be heard. In the matter is set down in Bulawayo file at 10.00
am on the Wednesday immediately preceding the Friday in which the matter is to be heard. The
affidavit must be accompanied by the following documents:
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38 MY NOTES
1. Marriage certificate
2. Consent paper, if any
3. Any other documentary evidence depending on the contents of the affidavit, for example, proof
of service.
The court may still insist that the plaintiff gives oral evidence and the court may postpone the
matter. Where special summons Form 30A are used the matter is simply set down and is to be heard
on the date specified in the summons without any reference to the defendant. Note. The procedure
on Form 30A is not clear because of changes.
Application for Rescission of Judgment
Consent judgment under Order 8 R56. In terms of this Rule a judgment given by consent under the
rules may be set aside by the court and leave may be given to the defendant to defend, or to the
plaintiff to prosecute his action. Such leave shall only be given on good and sufficient cause and
upon such terms as to costs, and otherwise as the court deems just: see Hockey v Rixon NO 1939 S.R.
107, Roland v McDonnell 1986 (2) ZLR 216, Washaya v Washaya 1989 (2) ZLR 193, Mukundadzviti v
Mutasa 1990 (1) ZLR 342, Minister of Home Affairs v Vuta 1990 (2) ZLR 338.
Default judgment under Order 9 R63 by court. In terms of this rule:
1. A party against whom judgment has been given in default, whether under the rules or under any
other law, may make a court application not later than 1 month after he has had knowledge of the
judgment for the judgment to be set aside.
2. If the court is satisfied, on an application in terms of sub-rule (1), that there is good and sufficient
cause to do so, the court may set aside the judgment concerned and give leave to the defendant to
defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the
court considers just.
3. Unless an applicant for the setting aside of a judgment in terms of this rule proves to the
contrary, he shall be presumed to have had knowledge of the judgment within 2 days after the date
thereof: see Du Preez v Hughes 1957 R & N 706, Barclays Bank of Zimbabwe Ltd v C.C. International
and Shava S 16/86; Ndebele v Ncube 1992 ZLR 288 [see also R63A].
Summary judgment under Order 10 R74. The rule provides that:
1. If a defendant against whom judgment in terms of Order 10 has been granted satisfies the same
within 1 month thereafter or within such extended time, not being more than 3 months in all, as the
court at the time of giving judgment may allow, he may within 1 month after so satisfying the
judgment make a court application to set aside the judgment.
2. On such application the court may on good cause shown set aside the judgment and give leave to
defend, and may give directions as to the giving of security by the plaintiff for the return of the
money or goods recovered, if the defendant should be successful, or for the payment into court of
such money or the deposit with a custodian of such goods, to abide the result of the action.
3. Where such leave is given the action shall proceed in the ordinary manner subject to any
directions which the court may give.
Further Procedure When Action Contested
Appearance to Defend [Order 7 R 48–49]
Appearance is effected by the defendant or his legal practitioner who shall record in the appearance
book at the registry where he has been called upon to enter appearance, the title and number of the
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39 MY NOTES
action; notification of his intention to defend; an address called an address for service which shall be
within a radius of 5 km of the registry; his postal address and the date of entry; and shall sign the
entry thus made [Form 8]. A defendant who has failed to enter appearance shall be deemed to be
barred [R50]: see Banda v Pitluk 1993 (2) ZLR 60.
Where the defendant has entered appearance the plaintiff is not entitled, save with the defendant’s
consent in writing, to withdraw the action until he has paid the defendant’s taxed costs or has
undertaken to pay such costs and has given notice of intention to withdraw to the defendant and to
the Registrar. Such undertaking shall be incorporated in the notice of withdrawal [R52]: see also
Herbstein and Van Winsen page 242.
Time limits for entry of appearance to defend
Plaintiff’s Declaration
This is a statement of the plaintiff’s claim. It must set out the nature, extent and grounds of the
cause of action, relief claimed. [Order 17 R109, 110]. Where the relief claimed is founded upon
separate grounds the grounds must be stated separately and distinctly [R111].
In terms of R113 the plaintiff may file the declaration together with the summons, or may choose to
do so later (R112] but must do so within 12 days of the date of appearance to defend by the
defendant.
R114. If the defendant satisfies the plaintiff’s claim in full within the dies induciae the plaintiff will
not be allowed to recover the costs of the declaration. However, the court may order otherwise on
good cause shown.
R115. The plaintiff may amend his claim as stated in the summons in his declaration at any stage of
the proceedings prior to judgment by way of court application on notice to the other party.
However, if the defendant shows that he will be prejudiced by such amendment the court will
determine whether the amendment should be made or not.
Defendant’s Plea [Order 18]
A plea is a defendant’s answer to the plaintiff’s declaration or particulars of claim. The plea must set
out the defendant’s defence and it must deal with the allegations of facts made in the declaration or
summons. The defendant either admits the allegations or denies them or confesses and avoids. A
confession and avoidance is when the defendant admits the allegations by alleging further facts
which justify the facts admitted or make him not liable. Where there is an admission the defendant
is bound by it and it cannot be withdrawn except with the leave and permission of the court. If the
defendant seeks to withdraw the admission the court will require evidence of the circumstances in
which it came to be made: see DD Transport Transport Pvt Ltd v Abbott 1998 (2) ZLR 92.
The general rule is that every allegation of fact not specifically dealt with by the defendant in his plea
is taken to have been admitted together with the implied allegation of fact which arises from that
allegation: see Huntly-Silburn v Levien 1937 TPD 199. One exception to this rule is in a damages
claim. In a damages claim it is not necessary to deny the damages claimed or their amount.
According to R117 the damages will always be an issue unless expressly admitted.
Where a defendant is raising several grounds of defence that are based on separate facts then each
defence must be separately stated [R116(2)]. The defendant is not allowed to set out inconsistent
defences unless they are in the alternatives. If a denial results in the matter taking longer than was

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40 MY NOTES
necessary, thus incurring extra-costs, and the court is of the view that the fact denied should have
been admitted, then the defendant may have to pay extra costs [R118].
The plea must be filed within 10 days of the service of the plaintiff’s declarations [R119]. Where the
plaintiff serves his declaration together with the summons the time of 10 days is given to file the
plea.
Special Plea
A special plea is a plea that does not raise a defence on merits but sets out some special defence.
The purpose of the plea is either to delay the proceedings or to put an end to the proceedings
(quashing). The difference between a special plea and an exception is that with an exception the
defence raised must appear ex facie the declaration or summons or pleadings excepted to. You may
not introduce any matters outside the declarations or summons. With a special plea the defence
raised may be established by evidence outside the declaration; that is, the counter-claim.
Two categories of special plea are:
1. Dilatory: to delay the proceedings until some temporary bar to the claim has been removed.
2. Declinatory: to quash or put an end to the proceedings.
Note. The other name for a dilatory plea is plea in abatement.
(i) The declinatory plea is also known as the plea in bar
(ii) There are two types of declinatory: plea of res judicata: the same matter has been decided
in another court of competent jurisdiction and prescription – the matter is the cut-off time. A
claim can no longer be brought because lapse of time [Prescription Act 8:07].
Note. There is no prescription under customary law.
General claims: 3 years
Loans from state: 6 years
Road Traffic Act: 2 years to sue insurer
Police Act: 8 months
Lack of jurisdiction: see Mvami Pvt Ltd v Standard Finance Ltd 1976 (2) RLR 257; Owen Smith v Owen
Smith B 1981 ZLR 514; Flood v Taylor 19978 RLR 230.
Dilatory plea
lis alibi pendens – some matter is pending in another court.
No locus standi – person who has instituted proceedings has no capacity to sue: see Edwards v
Woodnutt NO 1968 (4) SA 124
Actual procedure for filing pleas
R137(1)(a). Plea in bar or abatement
R137(2) provides that the plea shall be in the appropriate form (No. 12). You file it with the Registrar
and serve a copy on the other side [R138].
Defendant’s Claim in Reconvention [Order 18]
If the defendant wishes to raise a claim against the plaintiff he does so by filing a claim in
reconvention (a counter-claim). A claim in reconvention does not necessarily arise out of same facts
as a claim in convention but it can be raised in respect of any matter in which the defendant could
have maintained in an independent action [R120(1)].
A claim in reconvention for unliquidated damages may, in appropriate circumstances and if properly
pleaded, be a defence to a liquid a claim: see Anderson v Stamb 1951 SR 264. Claims in reconvention
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41 MY NOTES
are set out in same manner as a declaration [R121(2)]. Allegations that are being repeated should be
incorporated by reference [R122]. A claim in reconvention is to be filed and bound with the
defendant’s plea [R121(1)].
A claim in reconvention may be dealt with separately in certain circumstances but execution should
be suspended until both claims have been decided. If, in any case in which the defendant sets up a
claim in reconvention, the action of the plaintiff is stayed, discontinued or dismissed, the claim in
reconvention may nevertheless be proceeded with. The court may for good cause shown order the
plaintiff’s claim and the claim in reconvention to be tried separately [R123 and R124]: see Van den
Berg and Partners v L.C. Robinson and Co Ltd 1952 SR 148.
Plaintiff’s Replication [Order 19]
A replication is not compulsory. It is necessary where the defendant raises new facts in his plea. A
replication will be required where the defendant’s plea is one of confession and avoidance [R126].
If it is to be filed must be filed within 12 days of the date of service of the plea [R125]. If the plaintiff
does not intend to file a replication he can deliver a letter to the defendant notifying him that he
does not wish to file a replication and he is joining issue with the defendant. This should be delivered
within 12 days of the service of the plea [R130].
Plaintiff’s plea to the defendant’s claim in reconvention. The plaintiff follows the same rules as in the
defendant claim in reconvention [R127]. A defendant’s replication to the plaintiff’s plea to the
defendant’s claim in reconvention follows the same rules as the plaintiff’s replication.
Subsequent Pleadings
The defendant may choose to file a response to the plaintiff’s replication as a rejoinder. It should be
filed within 12 days of the service if the replication R129. If the replication raises new facts that have
not been raised in previous pleadings there is need to rejoinder.
Closure of Pleadings [Order16]
Pleadings can be closed prematurely when the party is barred [R107a]. Pleadings are also closed if
either of the parties joins issues with any pleading of the opposite party without adding any further
or special pleading to it. A defendant can also join issue after receiving the plaintiff’s replication
because he may not wish to file a rejoinder. Pleadings can also be closed if there is a written
agreement signed by the legal practitioners of both parties indicating that the pleadings should be
considered as closed. The agreement will be filed with the Registrar [R107(c)].
Note. If none of the circumstances applies and the parties consider that the pleadings be closed then
they should make a chamber application for an order declaring that the pleadings have been closed
R108. The judge will make an order as he deems fit.
Significance of closure of pleadings
Parties cannot proceed to the discovery of documents without of the closure of pleadings [R160]. In
special circumstances leave of the judge must be obtained to proceed without discovery of
documents [R160].The parties cannot proceed to Pretrial Conference before closure of pleadings
[R182]. The parties cannot proceed to set the matter down for trial without closure [R214].
In terms of the law closure of pleadings means that the claim can now be transmitted to the heir of
the plaintiff in the event that the plaintiff dies after the closure of pleadings and provided that the
claim is not personal to the plaintiff, for example, a claim for divorce. The parties’ rights are regarded
as frozen (litis contestatio): see Jankowiak and Anor v Parity Insurance Co 1963 (2) SA 286.
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42 MY NOTES
The plaintiffs were husband and wife and had been injured in a collision between a motor vehicle
driven by the wife and the one driven by Forest. They instituted proceedings against Forest’s insurer.
The parties joined issue on the 2 June 1962. The husband died on the 4 of June 1962. The wife was
the executrix of the husband’s estate. She applied to be substituted for the husband in relation to
the husband’s claim. The defendant agreed to the substitution in relation to specific damages, that
is, medical expenses, hospital expenses and loss of earnings and not in relation to general damages,
which were for pain and suffering, because claim was personal to the deceased and therefore not
transmissible to the estate. The parties brought the issue to court for determination.
Held: the claim for general damages was transmittable to the estate of the deceased. It stated that
closure of pleadings results in litis contestatio, which is the freezing of the parties’ rights.
Discovery of Documents [Order 24]
Order 24 R160. Discovery is initiated by a notice to make discovery, which is a written notice
requiring a party to make discovery of all documents relating to any matter in question or in an issue
which happen to be in his possession or are still in his possession or control. The notice can be
served by either party and the time limits for responding is 24 days excluding public holidays and
weekends.
Note. The purpose of discovery is to prevent what is called trial by ambush: springing a surprise on
the other party. The procedure for making discovery is to deliver an affidavit in Form No. 18 and
attach a schedule of documents that is divided into two parts. The second part contains documents
which the practitioner objects to produce (if they contain privilege information, for example,
communications between the lawyer and client, covering state privilege and statements by
witnesses – for the purpose of litigation existing or contemplated – discovery must be made with the
bona fide intention to the legal practitioner in order to obtain advice or institute proceedings (legal
professional privilege): see Kerwin v Jones 1957 R & N 432, 1957 (3) SA 181; Boyce v Ocean Accident
and Guarantee Co-operation Ltd 1966 (1) SA 544; Association of Rhodesian Industries and Ors v
Brookes and Or 1972 (2) SA 687 (state privileges).
Once a party attaches discovery of documents and the other party thinks the discovery is incomplete
he can make a notice for further discovery [R162]. If the party insists that they do not have the
documents, they have to state this on oath on the affidavit. Where the claim of privilege exists it can
be challenged in terms of R177. The court or the judge can actually inspect the documents.
Once the documents are disclosed and not privileged, give notice to allow to inspect the documents
using Form 19. The notice basically calls upon a party who makes a notice to deliver a response
within 5 days by way of a notice in Form No. 20 specifying the following:
1. The place where the documents may be inspected. For parties represented by a legal practitioner
the usual place is the legal practitioner’s office.
2. The period during which the documents may be inspected. Each period should not be less than 5
days and should be on not later than 3 days from the date of delivery of the notice.
In the case of bankers’ books or books of accounts in constant use for the purpose of any business,
in case of inspection the place is their usual place of custody [R164(1(a)]; Form No. 20 specifying the
place where the documents will be inspected.
R164(2). Place the documents to be inspected in the legal practitioner’s office or usual place of
custody of books of accounts.
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43 MY NOTES
Where one receives Form No. 20 inspect the documents during normal hours between the period
specified R164(3).
If a party fails to produce a document for inspection when required to do so, he will not be allowed
to use it at the trial unless the court orders otherwise on good cause shown [R164(4)]. If a party fails
to make discovery to make inspection, the practitioner makes a chamber application for an order to
make compliance with the notice to inspect [R165(1)]. If a party is ordered to make discovery in
terms of R165(1) and still does not comply with the order, then the party in whose favour the order
was made can make a chamber application for the dismissal of the party’s claim or for striking out
the defence if it is the defendant who is failing to comply with the order. The judge dismissing the
claim or strike out defence may proceed to give default judgment against the defendant. If it is a
claim for damages then the court will need evidence as to the quantum either by affidavit or orally
[R165(2)].
A party who requires another to produce a document at the trial can give them a notice in terms of
Form No. 21 [R166(1)]. The notice must be given at least 3 days before the hearing. However, the
court may allow the notice to be given during the course of the hearing [R166(2)]. The court may
also order the production by any party of any documents in his power or control relating to the
matter in question and the order is made during the course of the proceedings [R167]. R168 deals
with the failure to produce the documents at the hearing of the proceedings or when the defendant
has been ordered to produce documents at the hearing by the court and fails to do so. In this case
the court may dismiss the claim or strike out the defence of the defendant and give a default
judgment. This is subject to whether there has been evidence either orally or by affidavit to
quantum the amount if it is for damages.
Where a party in a pleading or affidavit filed during the course of proceedings makes reference to
any document, the other party may require him or her to produce such documents within 10 days
and also to permit him to take a copy thereof [R169(1), as amended by SI80/00]. The notice is in
Form No. 22. A party who fails to comply with the notice in Form No. 22 will not be allowed to use
that document in the action of proceedings except with the leave of the court. However, any other
party may use the document [R169(2)].
Make a chamber application to compel production of the document [R169(3)]. If the party is ordered
to produce the document for inspection and for copies to be made and they require to comply with
the order then there can be a chamber application to dismiss the claim or strike out the defence
followed by a default judgment [R169(4)] and evidence as to the quantum of damages orally or by
affidavit.
R171. Service of an order or notice to make discovery on the legal practitioner shall be sufficient
notice unless the party against whom the order was made shows that he had no knowledge or
notice of the order in R171. It is an offence for a legal practitioner to fail to give notice to make
discovery to the client and any legal practitioner who fails to do so is liable to attachment [R172].
Pretrial Conference [Order 26]
Curtailment of Proceedings
The purpose of the Pretrial conference is to attempt to settle the matter out of court and if that fails
to reach an agreement on as many issues as possible to curtail the trial; to define the real issues in
dispute so that the parties and the court are clear.
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44 MY NOTES
R182. There are three ways in which the Pretrial Conference can be convened:
1. By agreement between the parties where they hold the Pretrial Conference themselves at a
mutually convenient time and place [R182(1)].
2. Where the parties by consent agree that the Pretrial Conference be held before a judge in
chambers. The date and time is fixed by the Registrar in consultation with the parties [R182(3)].
3. In terms of the rules, if the judge instructs the Registrar to convene a Pretrial Conference before a
judge in chambers at a time specified in the notice of the Registrar and the rule requires the
Registrar to give reasonable notice R182(4). This can be done at any time during the proceedings
regardless of whether the parties had had a Pretrial Conference themselves. However, if the notice
is given before the parties convene the Pretrial Conference it will not be necessary for them to do so
[R182(5)]. Be aware that for matters that are before the High Court in Harare there is a special
practice Note 1 of 1995.
Some of the issues in R182(2) can be discussed at the Pretrial Conference, such as obtaining
admission of facts and documents. The parties can also discuss the holding of any inspection or an
examination, the exchange of experts reports, giving further particulars for the purpose of trial and
agreeing on a deadline as to when these should be furnished; discussing the issue of whether there
are any plans, diagrams or photographs at the trial and if so who is going to put them together and
discussing the consolidation of the trial. The latter applies where the defendant is sued by many
plaintiffs. The parties can discuss the issue of quantum of damages if the defendant is denying
negligence, the estimation of the probable duration of the trial, the number of witnesses to be
called, the complexity of the facts, issues of the preparation of correspondence and the documents
that are to be used at trial in one bundle and paginating them and defining the real issues to be
decided at the trial. The issue of an interpreter can also be discussed. If the parties held the Pretrial
Conference themselves then at the conclusion of the Pretrial Conference they must draw up the
minute of the Conference that should summarise the issues discussed and be signed by the parties
or their legal practitioners [R182(7)].
If the Conference is held before a judge then the judge will do the following:
1. Record the decision taken at the Pretrial Conference and any agreements reached by the parties.
2. Make an order limiting the issues for trial to those not deposed of by admission or denial.
3. Record the refusal of any party to make an admission or reach an agreement and the reasons
thereof. If it turns out that the reasons are unreasonable then the party will not be awarded costs
[R182(10)]. If the parties cannot agree on any issue in R182(2), any of the parties may make a
chamber application to a judge for a direction in regard to a matter in dispute [R182(8)]. If the
parties manage to reach a settlement on any of the matters in dispute then a judge may make an
order embodying the terms of settlement, that is, an application by the parties (chamber) [R182(9)].
If the parties cannot agree on how to hold a Pretrial Conference or if they agree to hold one
themselves but do not agree on the date they can make a chamber application for a direction on
how to proceed [R182(6)].
If a party fails to comply with the direction given by a judge in relation to holding a Pretrial
Conference or with a notice served by the Registrar from a judge to convene a Pretrial Conference as
per R 182(4) then a judge may dismiss the party’s claim or strike out the defence. This can be done
either on oral application or a chamber application [R182(11)].
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45 MY NOTES
R183 allows a judge to consult parties in chamber for discussion. R184 says that a court giving
judgment at the trial of the action must take into consideration the provisions of R182 in relation to
making an order as to costs. If the court is of the view that a party has been unreasonable in making
an admission or reaching an agreement then the court may order such a party to pay additional
costs for such refusal, even if they are the successful party in the action [(R184)].
Special procedure for Harare in terms of practice direction 1995
All Pretrial Conferences in Harare are held before a judge in chambers. However, the parties can ask
a judge to allow them to hold the Pretrial Conference themselves if they believe that a Pretrial
Conference before a judge would not serve any useful purpose because the legal or factual issues
are very complex or because the prospects of settlement or agreement are very remote. Reasons
should be given for their belief. The procedure is to file a notice (once in position to hold a Pretrial
Conference) to attend the Pretrial Conference with the Registrar and in that notice leave the date
and the time blank. The notice is accompanied by a concise summary of the evidence led at the trial
including a list of their evidence. The notice should also be accompanied by a draft pretrial
conference minute listing the issues of what the practitioner perceives to be determined by court,
admission, an estimation of the duration of trial and other issues in R182. The Registrar will insert
the date and the time of the Pretrial Conference, take the notice to the other party and serve it on
them together with the copies of summary of evidence and draft pretrial conference minutes. Then
file proof of service with the Registrar.
The party who receive the notice for the Pretrial Conference and accompanying documents should
also file their summary of evidence at least 5 days before the date of the Pretrial Conference. If they
dispute the draft Pretrial Conference minute or wish to add anything further then they must file
their own draft Pretrial Conference. On the date set for the Pretrial Conference, a party should
attend either in person or by a representative familiar with the facts and duly authorized to make
decisions on behalf of the party together with the legal practitioner. A legal practitioner can apply
for their client to be excused from attending the Pretrial Conference in person for good cause
shown. It is only granted in special circumstances.
At the Pretrial Conference the judge will actively seek to assess the strengths and weaknesses of
active parties and to reach an agreement on the matters referred to in R182(2). The judge’s
intention will either be to reduce the issues between the parties or assist the parties to settle the
matter out of court.
The judge who presides at the Pretrial Conference will not preside at the trial (to avoid bias). If a
party is a self-actor serve the relevant notices on them by registered post at the address of service
and provides proof of posting as proof of service. If the party is a self-actor the judge may condone
their failure to provide a summary of evidence or draft Pretrial Conference minutes. The nature of
the case will be ascertained at the Pretrial Conference.
A judge may postpone the Pretrial Conference to a later date if he is of the view that there are some
issues to be clarified and such clarification will lead to the resolving the matter or narrowing the
issues. The Pretrial Conference will still be before the same judge and another judge. At the end of
the Pretrial Conference the judge will draw up the minutes. The pretrial conference is set down for
45 minutes on Thursdays and Fridays.

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46 MY NOTES
Set Down
Note 1/95. Trial dates can be allocated at the Pretrial Conference. In terms of the rules court is open
on any day that is not a Sunday or public holiday [R281] during working hours, that is, 8 am to 1 pm
and 2 to 4 pm on each business day. For the court there are what are known as vacation days that
are published by the calendar which fixes which days are vacations and which are not. A contested
matter cannot be set down during a vacation unless it is extremely urgent.
After the Pretrial Conference request the Registrar to prepare cause list in Form 26A. Form 26A
requires the following: the number of days required for trial, names of the plaintiff’s legal
practitioners, and whether the legal practitioners will actually be representing the plaintiff. The
same information is needed for the defendant. Confirm for any discoveries. As soon as dates are
available the Registrar will allocate dates for the trial in terms of R215. The date can be changed on
good cause shown but the parties should be consulted. The parties can change the date but have to
apply to a judge.
If the parties are represented the notice is served to the legal practitioners and if not by registered
post to the address of service or last known address. As a matter of constitutional law the matter
should be held within reasonable time: see Pickering v Zim Newspapers 1991 (1) ZLR 71. The
applicant issued summons for defamation on the 25 January 1990. Pleadings were closed on 9
August 1990. The Pretrial Conference was held and there was application for set down. The
applicant sought an urgent set down of the matter because the defendant was continuing to publish
defamatory allegations against him and this had a detrimental effect not only on himself and his
family but also in public confidence in the banking sector. He applied in terms of S18(9) of the
Constitution. He also said that the defendant would suffer no prejudice if the matter was heard as a
matter of urgency. He said the matter was likely to be held in 1993 if the normal proceedings were
followed. The respondent applied for cancellation of the application, alleging that the lack of
facilities for the hearing of civil trials would not defeat the applicant’s constitutional right, submitted
that matters that that of the applicant should be set down within 1 year of the commencement of
the proceedings and within 6 months after application and any delay beyond that time is
unreasonable.
The application cannot be equated to any ordinary commercial claim and the applicant was entitled
to vindicate his name as soon as possible in response to the application. The court thus suggested
the matter be heard on the 29 of October 1990 and be heard at any time between the 12 and the 16
of November but those days had not been taken by the applicant. Held: the applicant had not
established that the trial could not be heard before 1993. The applicant had not established that a
trial in 1993 would infringe S18(9) of the Constitution, given the fact that allowance must be given to
institutional shortcomings. The applicant was in no worse position than other litigants and special
preference for his matter would violate the constitutional rights of the other litigants. The
application was dismissed with costs.
Trial [Order 49]
Trial is open to the public [S49 of the High Court Act]. Proceedings are in English but court can
choose to hold the trial in camera. The duty to begin depends on who has the burden of proof. If it is
on the plaintiff, the plaintiff adduces evidence first [R437(1)]. If on the pleading the burden is on the
defendant then the defendant adduces evidence first [R437(2)]. Where the burden of proof is on the
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47 MY NOTES
plaintiff on some issues and on the defendant on others then the plaintiff will adduce evidence first
on those issues on which the burden of proof is on him. The defendant will then adduce evidence on
all issues. The plaintiff will then adduce evidence on those issues not previously addressed or dealt
with [R437(3) and (4)]. If there is doubt or dispute as to who has the burden of proof then the court
has the discretion to determine which party shall begin. The opening address by the plaintiff
[R438(2)]. The purpose is to give a summary of the facts that are going to be proved by evidence. At
this stage there are no arguments.
Presentation of evidence
Witness or other parties themselves should be outside the court until their time to give evidence has
come.
Guard against inadmissible evidence. The court in a civil trial cannot call a party to give evidence
without the consent of the parties. However, the court can recall a party who has testified to clarify
certain aspects of the case. The parties can also recall witnesses and if the other party objects make
an application to recall. This is done when the parties have closed the case so that the practitioner
reopens it [R437(5]: see Haldhla v President Insurance Co 1965 (1) SA 614.
The court can initiate an inspection in loco: see Hebstein: Civil Procedure 3rd edn, page 556.
If you are examining your own witness do not ask leading questions. These questions suggest the
answer.
Stages of trial where the burden is on the plaintiff and no ancillary issues arise:
1. Examination in chief. No leading questions.
2. Cross-examination by the defendant
3. Re-examination
At the conclusion of the plaintiff’s case they close their case and the defendant can apply for
absolution from the instance. This is where the defendant argues that the case presented by the
plaintiff is insufficient to put him to his defence (no prima case). If there is no such application the
next stage is the opening of the defendant’s address [R438(3)]. The defendant will also call his
witnesses, who will go through the same processes set out in the plaintiff’s case. Note. A cross-
examination is not compulsory and should not be done it if there is no issue to challenge.
After the defendant has presented his case he will close his case and the applicant will make his
closing address. The closing address starts with the plaintiff followed by the defendant and finally
the plaintiff replies to what the defendant has said. If in the reply the plaintiff cites new cases the
defendant may be allowed to respond to such. The closing address must be oral: see Transvaal
Industrial Foods Ltd v B.M.M. Processing (Pvt) Ltd 1973 (1) SA 627. This was an appeal from the
Transvaal Provincial Department. The main argument of the counsel of the appellant was the
submission that the trial judge had committed a serious prejudicial irregularity in that he had
directed counsel to submit their closing arguments in writing. He had also proceeded to decide the
matter without considering the written arguments. Held: generally arguments for the litigants in a
trial should be delivered orally in open court and not in writing to the judge in his chambers. An oral
argument is far more effective than a written substitute. Consequently, neither the court nor the
litigants should normally be deprived of the benefit of oral arguments in which counsel can fully
indulge their forensic ability and persuasive skill in the interest of justice and their clients. A trial
court should therefore not direct that the arguments be delivered in writing except in special
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48 MY NOTES
circumstances and only after discussion with counsel. The conclusion was that the court a quo had
committed a serious irregularity in denying the litigants an opportunity to address the court. The
court then proceeded to deal with the matter on the merits and dismissed the appeal with costs.
Postponement (Adjournment of Trial Proceedings R445)
Adjournment can be at the instance of the court. The first thing to do is to approach the other side
and ask for consent to a postponement but if they do not consent, to make an application to the
court for postponement.
Other Common Procedures Arising During Contested Actions
Procedure of Barring [Order 12]
When does a party become barred? [Order 7 R50] If a defendant fails to enter appearance to
defend he is automatically barred.
Order 12 R80. This is where a party has failed to file his declaration, plea, request for further
particulars, replication or other response to plea. The bar is not automatic-but give a notice of
intention to bar Form No. 9. In the notice the practitioner calls upon the party to file their pleadings
or other response within 5 days of the date of service of the notice, failing which they will be barred.
This is applied for even when they want to except: see City of Harare v Minister of Local Government
Rural and Urban Development v V & P Investment (Pvt) Ltd and Deputy William Aitken SC 195/92.
Once a party receives a notice of intention to bar he should respond by filing the required pleadings.
If they do not respond then proceed to bar them by filing a copy of notice of intention to bar with
the Registrar and the copy will be endorsed as required by Form No. 9. For the effect of the bar see
R83. When a party is barred the Registrar cannot accept for filing any pleading or other document
from that party. That party shall not be permitted to appear in person or by a legal practitioner in
the subsequent proceedings in the action or suit. The only exception is when they file pleadings for
the purposes of applying for the removal of the bar.
Removal of the bar
This can be done by consent. Form No. 10 is used to file a notice of removal of bar. If the other party
refuses to consent the party makes an application for the removal of the bar [R84]. The application
can be made either as a chamber application or as an oral application at the hearing of the action or
suit involved [R84]: see Standard Bank of SA Ltd v Kirkos 1957 R & N 144. The application for the
removal of a bar for failure to file a plea timeously was supported by an affidavit by the applicant’s
attorney. Much of the affidavit was mere opinion on the merits of the applicant’s case. It was held
that, in the absence of special circumstances, it is the client himself who should make the affidavit
because it is he or she who knows the facts upon which the case is founded. When the time came it
will be for him or the applicant to establish the claim. Postponement will be granted to allow the
applicant to file a proper affidavit.
What must the applicant establish to succeed in having the bar removed?
See Petras v Petra SC 71/91. In this case it was held that an application for removal of the bar must
satisfy the following requirements:
1. The applicant must give good reasons for the default.
2. The applicant must set out facts on which he relies on for the defence so that the court can form
an opinion from the merits that is, have bona fide defence.

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Requests for Further Particulars [Order21 R137(1)(d)]
Further particulars can be requested for two different reasons:
1. To enable the party requesting particulars to plead.
2. For the purpose of preparing for trial.
These particulars can be requested by either party.
For the purposes of pleading
What is the degree of particularity required? See Citizen Pvt Ltd v Art Printing Work 1957 (3) SA 383.
There was an application for an order compelling the plaintiff to supply further and better
particulars. These are requested when the party is unsatisfied with the particulars. The plaintiff’s
claim was for printing work done and paper, stationery and printer supplies sold to the defendant.
Details of each invoice for the amount charged were annexed to the declaration. The defendant
requested further particulars and was supplied with particulars, which he denied. The particulars
sought were detailed information on how the plaintiff had arrived at their charges, for example, the
42% to cover overheads. The defendant wanted to know the following in respect of this charge:
1. How much was allowed for the cost of:
(i) salaries, description and number of employees
(ii) other office expenses (stating what they were)
(iii) advertising expenses, stating how much and in what proportions of the total was desired
for printing overheads
(iv) depreciation other than the depreciation of printing machine.
2. What is meant by:
(i) depreciation and how it was calculated
(ii) overhead rent and how it differed from other rent.
3. Details of:
(i) The interest claimed
(ii) Bank charges.
The court said:
It should be remembered that it is a fundamental principle of all pleadings that the statement
of material facts should be in summary form. Even where the pleading is not defective by
reason of the omission of any material fact the court will order particulars if it considers that
as a matter of fairness they should be given. The procedure however was not designed to
enable one party to carry out inquisitorial forays upon his adversary; nor should it be regarded
as a challenge to the subtle and overcurious … I have studied the present request, its
complexities and magnitude will not fail to impress the most reasonable litigant. I am satisfied
that the applicant should not as a matter of fairness be given the information for which he
asks [P386]. Application was dismissed with costs.
In Time Security Pvt Ltd v Castle Hotel Pvt Ltd 1972 (3) SA 112, the plaintiff sued the defendant in the
magistrates court for payment of $85,63; being an amount allegedly due by the defendant to the
plaintiff for services rendered. The services were for providing a security guard for the defendant’s
premises. The defendant pleaded to the summons, stating that it was entitled to terminate the
contract because the security guard supplied was not carrying out his duties properly and not
providing real security at all. The plaintiff wanted full details of:
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1. The alleged failure by the security guard to carry out his duties properly.
2. What was meant by the allegation that the security guard was not providing any real security.
The defendant refused to furnish the particulars on the ground that they were not necessary to
enable the plaintiff to plead. The plaintiff applied to the magistrates court for an order compelling
the defendant to supply them. The application was dismissed and he appealed to Appellate Division.
The Appellate Division started to define what is meant by the ability to plead or prepare for trial.
Held: the ability to plead or prepare for trial means the ability properly to plead or prepare for trial.
A litigant is not to be put in the position either of pleading in the dark or preparing for trial in the
dark. No hard and fast rule can be laid down regarding the particularity required. Each case must be
judged on its own merits. Held: on the issue of the purposes of pleading:
a litigant must not be put in the embarrassing position of being forced to resort to bare denial
by the lack of particularity. A denial which in the light of the particulars supplied at a later
stage he might well be obliged to withdraw or qualify. He should be in the position honestly to
deal with the matter and either to admit or deny an allegation in the light of particulars
furnished. (page 114)
Held: the plaintiff was entitled to the particulars sought because the plaintiff, being a company,
could not be expected to supervise all its employees. It was incumbent upon the defendant to
inform the plaintiff of any failure to perform his duties by the security guard. The plaintiff also
needed to know in what ways the guard was not performing his duties, for example, did he not
report for duty at all or did he report for duty and then fail to perform the duties? Appeal was
allowed with costs.
Procedure [Form No. 12) [R137(2)]. Once there is a request for further particulars one must respond
within the time limit and thereafter the time for filing the next pleadings will be calculated according
to R142(a), whether the particulars are supplied voluntarily or an order to supply files within 12 days
from the day of compel of supply.
If the party refuses to comply, the defendant should file their plea within 12 days of date of refusal
[R142(b)]. If there is a refusal and an application is made to compel the party, the time is calculated
from the date the court refuses to grant the application [R142(c)]. A request for further and better
particulars if the particulars supplied are insufficient (Citizen (Pvt) Ltd) R141(b) gives the court power
to order either party to furnish a further and better statement of the nature of his claim or defence,
or further and better particulars of any matter stated in any pleading, notice or written proceeding
requiring particulars.
Further particulars for the purpose of trial (Form No. 13 is used). After the close of pleadings, any
party may, not less than 12 days before trial, deliver notice in accordance with Form No. 13, calling
for such further particulars of any pleading, notice or written proceeding as are necessary to enable
him to prepare for trial. The party so called upon shall reply thereto within 10 days of the delivery of
the notice [R143].
Application to Strike Out [Order 27 R137(1)(c)]
R141. What should be struck out is any matter which is argumentative or irrelevant: see Green v Latz
1966 RLR 633. Superfluous material can be struck out; as well as vague and embarrassing material
where it does not go to the root of the cause of action or defence; inconsistent or contradictory
matter; and any matter that tends to prejudice or embarrass the other party or that tends to delay
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the trial of the action [R141(a)]. The purpose of the application to strike out is to have the matter
struck out so as to clarify the pleading so that it properly reflects the case that the plaintiff or
defendant has to answer. Form 12 is used for procedure to apply to strike out: see Tekere v Zim
Papers (Pvt) Ltd 275 1986 (1) ZLR 275.
Exceptions
Either party can except to the other party’s claim or defence. If it is an exception to the plaintiff’s
claim it will be on the basis that the claim does not disclose the cause of action or it is so vague and
embarrassing so that the defendant does not know what claim he has to answer. An exception to
the plea is that the plea does not disclose a defence or it is so vague and embarrassing that the
plaintiff does not know what the defendant’s defence is. The purpose of excepting is to destroy the
cause of action or force an amendment so that the pleading clearly and properly reflects the cause
of action or defence.
A pleading may fail to disclose the cause of action or defence in the following ways:
1. An essential element of the claim or defence has been omitted. The question of what is an
essential element is a matter of substantive law; such as negligence or vicarious liability.
2. Where it raises a cause of action or defence that is unacceptable at law: see Lane v Eagle
Holdings (Pvt) ltd SC 126/85. This was an appeal from the magistrates court. The plaintiff had
claimed payment of $2000 being the balance of the bonus that defendant agreed to pay the plaintiff
in respect of services rendered as managing director of a subsidiary company of the defendant. The
defendant excepted to the plaintiff’s claim on the basis that the agreement to pay the bonus
contravenes the Emergency Powers (Control of Salary and Wage Increases) Regulations of 1981 and
was therefore illegal and enforceable. The exception was granted in the magistrates court and the
defendant appealed in the Supreme Court. Held on appeal that it was not apparent from the
plaintiff’s summons that the bonus claimed represented an increase of the plaintiff’s earnings and
that the increase in earnings was of such a magnitude as to offend against the regulations. For that
reason the summons was not excipiable and the appeal was allowed with costs. What is excepted
must appear on the documents.
When a plea is vague and embarrassing it means that it is such that the plaintiff or defendant cannot
tell by reading it what the cause of action is or defence is. The vagueness and embarrassment must
go to the root of the cause of action. If the vagueness and embarrassment does not go to the root of
the cause of action or where there is a cause of action or defence is clothed or there is some
vagueness or incompleteness in the manner in which it was set out which results in embarrassment
to the other party the remedy is to apply to strike out or to seek further particulars: see Salzman v
Holmes 1914 AD 152. The plaintiff’s declaration contained several allegations that the defendant had
uttered defamatory words of the plaintiff. Paragraph 7 of the declaration read:
on or about the 25th of January 1909 at B aforesaid the defendant in the hearing and presence
of and speaking to one Herbert G King of and concerning the plaintiff and complaining to the
said Herbert G King of plaintiff’s conduct towards him made use of false, malicious, slanderous
words; ‘there (pointing a spot on the bend of the Kafir River), I was pulled off my horse and
was nearly killed (meaning by plaintiff) and there a native woman was murdered (by plaintiff)
and my man Holstein was told that his grave was already dug (by plaintiff) if he crossed the
river.
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The defendant denied paragraph 7 in his plea but he went on to plead as follows:
with further reference to paragraph 7 of the declaration the defendant admits that he did on
or about the time mentioned in the presence and hearing of the said Herbert G King make use
of words more or less as alleged but said that the said words do not give the whole of the
conservation nor its clear and true meaning.
The defendant continued in his plea that in speaking as stated the defendant merely referred to the
unpleasant associations connected with the place and its immediate vicinity in consequence of what
had transpired that day and neither intended nor did infer or impute anything to the plaintiff as
alleged. The plaintiff excepted to the part of the defendant’s pleas as uncertain, obscure, vague and
embarrassing. The court a quo was of the view that the plaintiff should have proceeded by way of
applying to strike out that portion of plea and ordered that it be struck out. The defendant appealed.
Held: the plaintiff was correct to except because if the offending paragraphs of the plea were
intended as a special defence, they did not comply with the rules in that the defendant did not
admit, deny or confess and avoid anything. The court went on to say the words ‘more or less’ might
mean anything and the defendant should have explained the unpleasant circumstances referred to
in his plea. In this case Judge of Appeal Innes gave his view of the distinction between an exception
and application to strike out:
The distinction between exception and application to strike out is clear. An exception goes to
the root of the entire claim or defence as a case maybe. The excipient alleges that the
pleading objected to taken as it stands is legally invalid for its purpose. Whereas individual
sections that do not comprise on entire claim or defence but are only a portion of one must if
objected to be attached by a motion to expunge/application to strike out.
The appeal was dismissed.
Procedure for excepting [021 R137(1)(b)]
Form No. 12 is used.
Payment into Court
Also termed offers and tenders in settlement [Order 22]. Basically, in terms of R144, a party to
proceedings may make a written offer to settle either in whole or in part at any time within the
course of the proceedings R144(1). The offer can be made without prejudice, that is, without
admitting liability [R144(3)].
R144(4) specifies the content of the offer. The offer must be signed by the person making it or by his
or her legal practitioner. The offer must also set out all the terms and conditions on which it is given.
The offer must also indicate that it is made in terms of R144. Once a written offer is made the
practitioner must give notice of the offer to the party whom he is giving the offer [R146(1)]. The
notice must state whether the offer is being made without prejudice and whether it is being made in
respect of both the claim and costs or in respect of the claim only. It must also state whether the
offer is accompanied by an offer to pay all or part of the costs and therefore any conditions subject
to which the costs will be paid. The same Rule also applies in the case of a tender.
A tender is a tender in performance of a specific act [R145(1)]. The performance can either be in
whole or in part [R145(1)]. R145(3) states that it can be made without prejudice. The details required
are the same as in the offer, that is, they must be signed by the parties or legal practitioner R145(4).
Once an offer or tender has been made the person to whom it is made has a period of 15 days to
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53 MY NOTES
accept or reject it. If they accept it they do so by filing a written notice with the Registrar indicating
that they accept it [R146(1)] and must be served on the person who made the offer or tender and
proof of service must be filed with the Registrar [R147(3)]. Once the 15-day period has expired the
tender or offer can no longer be accepted unless the offeror or person who makes tender gives
consent or the court on application orders that it may be accepted R147(2). Where the offer or
tender does not include costs the person who accepts the offer or tender may make a court
application to pursue the costs [R147(5)]. If there is an offer or tender made without prejudice the
fact should not be disclosed to the court before judgment [R149(a)]. Paragraph (b) require the
Registrar to remove any reference to the offer or tender from the file. After judgment the fact can
be disclosed. The fact is considered for the purposes of costs. If the plaintiff unreasonably rejected
the tender or offer in settlement, even if they succeed, they will be penalized in costs. If they did not
succeed they can be penalized on paying the costs on a higher scale [R150(1)].
R150(2) allows the court to reconsider the question of costs if it had made a decision on the issue
without being aware that there was an offer or tender in settlement. This reconsideration is made
on application by any party to the proceedings within 5 days of the decision on the issue of costs.
Application for Summary Judgment
This is a procedure that allows the plaintiff who feels that the defendant has entered appearance to
defend to delay proceedings (no bona fide defence) to apply to the court for judgment: see Chrismar
(Pvt) Ltd v Stutchbury and Anor 1973 (1) RLR 277. There was an application for summary judgment. It
was held that the special procedure for summary judgment was conceived so that a mala fide
defendant might summarily be denied, except under onerous conditions, the benefits of the
fundamental principle on audi alteram partem (the principle of natural justice to hear both sides of
the case.) So extraordinary an evasion of a basic tenet of natural justice would not be resorted to
lightly and it is well established that it is only when all the proposed defences to the plaintiff’s claim
are clearly inarguably both in fact and in law that this drastic relief will be afforded to the plaintiff
(page 227).
Procedure [Order10]
The application for summary judgment is a court application and can be made at any time before a
Pretrial Conference is held. The court application will be supported by affidavit made by the plaintiff
or any other person who can swear positively to the facts. In the affidavit the deponent of the
affidavit will do the following: verify the cause of action and the amount claimed, if any, and state
that it is his belief that there is no bona fide defence to the action [R64(2)]. The deponent to the
affidavit may attach documents to the affidavits verifying the cause of action or support the belief
that there is no bona fide defence to the action [R6(3)]. This is a restatement of decision in Beresford
Land Plan v Urquahart 1975 (1) RLR 263, 1975 (3) SA 619.
Once an application has been made the defendant has several options:
1. Judgment may be given against him/her in the action [R66(3)(a)]. Whatever security given must
satisfy the Registrar that it is adequate.
2. To satisfy the court by affidavit or with the leave of court by oral evidence that he has a good
prima facie defence [R66(1)(b)]. The affidavit can also be by the defendant or anyone else who can
swear positively to the facts and who has personal knowledge of the facts.

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What is meant by good prima facie defence?
A question of law can be a good prima facie defence: see Shingadia v Shingadia 1966 RLR 285. The
plaintiff claimed summary judgment on an agreement that required him and another to act jointly in
claiming relief. The plaintiff and the other claimant were brothers and they were also partners in the
business. The other claimant, who was supposed to have been joined, was deceased. The defendant
argued that the plaintiff should have joined the executor of the estate of the deceased as co-
plaintiff. Held: summary judgment should not be granted when any real difficulty as to the matters
of law arises. However the court can still grant summary judgment if it is satisfied that the point of
law raised by the defendant is really arguable. Held: the defendant had put forward a triable and
arguable issue. The plaintiff sought to amend the summons to cure the defect but the amendment
was refused because it was not proper to make it at that stage. The application for summary
judgment was dismissed with costs: see Lincoln Shop (Pvt) Ltd v Axis Internationl and Wonder
Chizema HH 54/94; Rex v Rhodian Investment Trust (Pvt) 1957 R & N 723 1957 (4) SA 631.
A good prima facie defence means that the defendant must allege facts which, if he can succeed in
establishing them at the trial, would entitle him to succeed in his defence: see Wilson v Hoffman and
Anor 1974 (1) SA 44. The claim was for goods sold and delivered. The defendant’s defence was that
some of the goods were defective and had to be repaired at an estimated cost of $1613,30. There
was an argument by plaintiff’s counsel that this estimation was not an averment of fact and
therefore do not entitle the defendant to a defence. Held: the phraseology urged by the defendant
should not be placed under a microscope. A mere want of particularity in making an averment that
discloses the defence sought to be relied on is not ordinarily fatal to the defendant’s case provided
that the facts there are good if it proved to be a good defence. Held: the defence had raised a
legitimate issue for trial. The facts of the defendant’s counter-claim was less than the plaintiff’s claim
would not make it unacceptable to the defence to summary judgment.
See Rheeder v Spence 1978 (1) SA 1041. The plaintiff claimed $4500, being money lent and advanced
to the defendant. The defendant’s defence was that at the time that the loans were made he and
the plaintiff were having an affair and were living together as husband and wife. It was agreed that
he would repay when he could afford to and also when it was convenient to do so. The plaintiff
alleged that the condition of repayment was vague and unenforceable and therefore the defendant
had no good prima facie defence. Held: The defendant had raised a triable issue and even though
the condition was vague it could be established by evidence at trial: see Oak Holdings (Pvt) Ltd v
Newman Chiadzwa SC 50/86.
R67 limits the evidence that can be presented at the hearing of the application of summary
judgment. The plaintiff is restricted to the affidavit that would have been made in support of the
application and neither party may cross-examine any party who gives evidence, whether orally or by
affidavit.
However, there are exceptions in a proviso to R67. These are:
1. The court may permit evidence to be led in respect of any reduction to the plaintiff’s claim
R67(a).
2. The court may ask questions of any person who gives oral evidence for the purpose of elucidating
or clarifying what the defence is or for the purpose of determining whether at the time the
application was instituted the plaintiff was or should have been aware of the defence [R67(b)].
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3. The court may also permit the plaintiff to supplement his affidavit to deal with either or both of
two specific issues.
4. Any matter raised by the defendant that the plaintiff could not reasonably be expected to have
dealt with in his first affidavit, where plaintiff was taken by surprise: see Lincoln Shop (Pvt) Ltd v Axis
International HH 54/94; MWP Enterprises (Pvt) Ltd v V.A.M Machado (Pvt) Ltd HH 139/93.
R70. The court may give leave to defend either unconditionally or subject to conditions that is, the
giving of security. R73 deals with a situation where there are co-defendants and the court can make
a decision that one defendant is entitled to pay and the other not. In that case the court will give
leave to defend to the defendant entitled to defend and then enter a summary judgment.
Where the defendant show that he has good prima facie defence on part of the claim and the court
could give leave to defend on that part of the claim.
R72. The court gives the defendant room to defend and decide who will pay the costs for summary
judgment if it is unsuccessful. The general order is costs in the cause, which means that the decision
on who is to pay is deferred until the matter is finalized. Whoever succeeds will recover the costs of
proceedings to the application for summary judgment. The court may reserve the question of costs.
The decision as to who is to pay for the costs of unsuccessful summary. Judgment shall be deferred
and reserved by the court, usually where the case is complex or not clear.
In terms of R72(b) if, in the opinion of the court, the plaintiff knew that the defendant relied on a
contention that would entitle him to unconditional leave to defend, the court will order the plaintiff
to pay the defendant’s costs on the legal practitioner and clients’ costs scale and also order that the
action be stayed until the plaintiff has paid the costs. The plaintiff can pay costs on a party to party
scale [R72(b)], which is applied where the plaintiff knows that the defendant is taking an
oversanguine view of his case: see Rheeder v Spence (supra).
Application for Dismissal of Action
It is obvious that this is the reverse of a summary judgment. In this case it is the defendant who
alleges that the plaintiff’s claim is of no substance and should be dismissed in a summary manner
[Order 11]. The defendant can apply for the dismissal of the plaintiff’s action on the ground that it is
frivolous or vexatious [R75(1)]. The application is a court application made by a defendant or by a
person who can swear positively to the statement stating that he believes that the claim is frivolous
or vexatious and stating the reasons for his belief.
R75(3). The deponent of the affidavit may attach to his affidavit documents verifying his belief that
the action is frivolous or vexatious. Thereafter the procedure is the same as for court applications as
in Order 32 of the High Court Rules.
What is meant by frivolous or vexatious?
Wood NO v Edwards 1968 (2) RLR 212. The procedure was intended to apply to actions that were
manifestly groundless or improbable and no decision on the probabilities of the case should be
given. The same principles apply as in summary judgment: see Wright v Banda HH 30/94. The
defendant sought dismissal of the plaintiff’s claim for defamation on the ground that it was frivolous
or vexatious. The case involved a report that was prepared by the defendant, which the plaintiff
claimed was defamatory of him and had resulted in his being fired. The defendant was raising a
defence of qualified privilege. It was held that the purpose of the application for the dismissal of the
plaintiff’s claim as frivolous or vexatious was to provide the defendant with an opportunity of
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terminating the process of litigation without going through the rigours and costs of trial in a situation
where the plaintiff has no reasonable prospects of success (page 1).
In order to resist the application for dismissal the plaintiff needs to show that he has raised triable
issues and that his case has a possibility of success. He does not have to demonstrate a certainty or
even a likelihood of success at a future trial but only that his case is not hopeless (page 6).
R75(1). The defendant may make the application after he has filed his plea.
Powers of the court
The court will dismiss the application by the defendant unless it is satisfied that the action is
frivolous or vexatious. When the court dismisses the application then the action proceeds as if no
application for dismissal has been made [R79(1)]. This power applies whether the plaintiff has given
evidence or not, even if the plaintiff does not respond to the defendant’s application. If the court is
satisfied that the claim is frivolous or vexatious it may dismiss the action and enter judgment of
absolution from the instance with costs.
Where the court is of the opinion that the defendant has no grounds for alleging that the action was
frivolous or vexatious it may order that the defendant pay the plaintiff’s costs on a legal practitioner
and clients’ scale [R79(3)]. If there is more than one defendant and the court is of the view that the
action is frivolous or vexatious against one defendant and not the other, the court may order that
the action be dismissed and a judgment of absolution from the instance entered in respect of the
defendant against whom the action is frivolous or vexatious; but the plaintiff would be at liberty to
proceed with the action against the other defendant or defendants [R79(4)].
Amendment of Pleadings [Order 20]
In terms of R132 pleadings may be amended with the consent of all parties or if they fail to have
consent there should be an application for amendment. The application can be made to the court or
to a judge at any stage during the proceedings including at the trial. A plaintiff can amend the
pleadings to include a new cause of action which has arisen after the issue of summons [R134(1)]. If
in the opinion of the court or judge, such amendment may change the action substantially, then the
amendment would be refused and the plaintiff would have to institute a separate action.
Where the court has granted an amendment that introduces a new cause of action the court shall fix
the time for the defendant’s entrance of appearance to defend and for the filing of all subsequent
pleadings [R134(2)]. The purpose of the amendment of pleadings is to ensure that the issues which
the parties seek to be decided at court are brought before the court: see Levenstein v Levenstein
1955 SR 91.
When dealing with an opposed application to amend the pleadings the court has a very wide
discretion, as emphasized in Shill v Milner 1937 AD 101 at 105:
The object of pleading is to define the issues, and parties will be kept strictly to their pleadings
where any departure would cause any prejudice i.e., prevent inquiry. But within those limits
the court has wide discretion. For pleadings are made for the court and not the court for
pleadings.
Whether the amendment in respect of its scope or the time at which it is applied for is likely to
prejudice the opposite party or parties, if there is prejudice the court will look at whether the
prejudice can be cured by an appropriate order so as to the postponement and or costs: see Lamb v
Beazley NO 1988 (1) ZLR 77. Held: generally an application to amend a pleading will be allowed
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unless it is mala fide or there is incurable prejudice. However, the explanation must be made
timeously and an explanation must be given as to why the allegation was not made when the
pleading was originally drafted. On the facts it was held that the amendment sought by the plaintiff
would introduce a new cause of action which would call for a fresh plea from the defendant. Hence,
the proposed amendment was designed to destroy one of the defences raised by the defendant and
was therefore prejudicial to the defendant. The application to amend was dismissed with costs: see
Trans African Insurance Co v Maluleka 1956 (2) SA 273 AD.
If an amendment of a pleading amounts to the withdrawal of an admission, the court will require an
explanation as to how it came to be made and also why it is sought to resile from it. It must not
cause incurable prejudice and it must not be mala fide.
DD Transport (Pvt) ltd v Abbott 1988 (2) ZLR 92. The plaintiff sued the defendant for payment of
$7650, being the damages suffered through the negligence of the defendant’s employees when
transporting his boat trailer from Harare to Bulawayo. The plaintiff alleged that the contract had
been concluded with one King, who represented the defendant. In his plea the defendant denied
that King had authority to conclude the contract. In his replication the plaintiff alleged that King held
himself out as having authority to conclude the contract. The defendant in his rejoinder denied the
entire transaction between King and the plaintiff and put the plaintiff to the proof hereof. The
plaintiff’s legal practitioner protested that this amounted to the withdrawal of an admission and
applied to have the offending paragraph of the rejoinder struck out. The defendant applied to
amend his plea by withdrawing the admission. An affidavit from the legal practitioner who drafted
the plea and rejoinder stated that he (the legal practitioner) had no authority to make the admission
and had not appreciated the fact that the relevant paragraph could be construed as an admission.
The plaintiff filed a replying affidavit in which he indicated, with supporting copies of
correspondence between the parties, that the defendant never had denied the transaction between
the plaintiff and King and the only issue being raised was that of the authority of King, who
represented the defendant. The defendant did not respond to the plaintiff’s affidavit. The
application to strike out was granted and the defendant’s application to amend his plea was
dismissed. The defendant appealed to the Supreme Court and the Supreme Court said ‘the court
would not grant withdrawal of an admission without a reasonable explanation of how it came to be
made and why it is sought to resile from it’ (page 98). ‘ in addition the application to amend must
not cause incurable prejudice and must not be mala fide’. Held: although the court a quo was wrong
to disbelieve the affidavit of the legal practitioner the defendant had still not contradicted the
evidence that it had admitted the transaction between the plaintiff and King. Therefore, the
application to amend the plea was not bona fide. Appeal was dismissed with costs.
Proceedings by Way of Application
Application can either be interlocutory or preliminary or can be incidental to the main proceedings.
On Notice or Ex Parte
An application on notice is usually a court application and this is an application in writing to the court
on notice to all interested parties. It is heard in open court, whether opposed or not, and judgment
is delivered in open court.
An ex parte application is used:
1. When the applicant is the only person who is interested in the relief that is being claimed
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2. When the relief sought is a preliminary step in the proceedings
3. When, though other persons may be affected by the court’s order, immediate relief is essential
because of the danger or because the notice may precipitate the very harm the applicant is trying to
forestall (Herbstein & Van Winsen, page 232).
In terms of the Rule 242 an ex parte application is made if the applicant reasonably believes one or
more of the following:
1. The matter is uncontentious in that no person other than the applicant can reasonably be
expected to be affected by the order sought or object to it.
2. The order sought is a request for directions or to enforce any other provision of the rules in
circumstances where no other person is likely to object.
3. There is a risk of perverse conduct in that any person who would otherwise be entitled to notice
of the application is likely to act so as to defeat, wholly or partly, the purpose of the application prior
to an order being granted or served.
4. The matter is so urgent and the risk of irreparable damage to the applicant is so great that there
is insufficient time to give due notice to those otherwise entitled to it.
5. There is any other reason, acceptable to the judge, why such notice should not be given.
Ex parte applications require utmost good faith. The applicant should not mislead the court by giving
information which is inaccurate. R242(2) requires the applicant to make an ex parte application to
set out the reasons why he believes the matter should be heard ex parte. If the applicant is legally
represented a certificate from a legal practitioner is required, which also sets out the reasons why
the matter falls within the provisions of R242(1).
Court Application or Chamber Application
Applications can be divided into two categories:
1. Court application: an application in writing to the court on notice to all interested parties
[R226(1)(a)].
2. Chamber application: an application to a judge in writing [R226(1)(b)].
Note. One can make an oral application in certain circumstances R226(2) provides that the chamber
application is not permissible unless the matter falls within the following categories:
1. It is urgent and cannot wait to be resolved through a court application.
2. The rules or any other enactment provide for the use of a chamber application.
3. The relief sought is procedural or for a provisional order where no interim relief is sought.
4. If the relief sought is for default judgment or for a final order in the following circumstances:
(i) where the defendant or respondent, as the case may be, has had previous notice that the
order has been sought and is in default
(ii) where there are special circumstances that justify the use of a chamber application.
In all other circumstances the application is a court application.
General rules applying to court and chamber applications [R227]
Basically, all applications and the opposition documents should be legibly written on A4-sized paper
and on one side only [R227(1)(a)]. If it is a long document it should be divided into paragraphs and
the paragraphs should be numbered consecutively. Each paragraph should contain, where possible,
a separate allegation [R227(1)(b)]. The whole set of documents for the application must be
numbered consecutively, that is, paginated [R227(1)(c)].
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The application and notice of opposition should state the title of the matter and a description of the
document [R227(2)(a)] and also shall be signed by the applicant or the respondent or by his or her
legal practitioner [R227(2)(b)]. It should give an address for service, which should be within a 5 km
radius from the street in which the document is filed [R227(2)(c)].
Every written application shall contain a draft of the order sought R227(3).
An affidavit must be made by the applicant or respondent himself or by a person who can swear
positively to the facts [R227(4)]. An affidavit can also have its documents verifying the facts stated in
attachments as annexures: these are part of the affidavit in which they are attached [R227(4)(b)].
If a party requires an extension of the time within which to respond to the application they can make
a chamber application to the extension and the judge will make an order as he thinks fit [R229]. The
respondent may file a counter application (equivalent to counter-claim) [R229(A)].
R229(b) gives the court or judge who is hearing an application the power to permit or require any
person to give oral evidence if it is in the interest of justice to hear such evidence. R229C allows the
court to condone the use of an incorrect form of application unless they consider that some
interested party has or may be prejudiced by the failure to use the proper form and that such
prejudice cannot be remedied either by directions to the service of the application or an appropriate
order of the cost.
Procedure for Court Application
Form No. 29 is used and the application must be supported by one or more affidavits setting out the
facts on which the applicant relies (the founding affidavit). It can have supporting affidavits. These
are affidavits from people who swear true facts about facts alleged in the founding affidavit. If the
application is not to be served on any person the form to be used is Form 29B, with the appropriate
modification.
Form 29. The applicant will file it with the Registrar and serve a copy of the form on the
respondents. The requirements for service are in R231(1). If the practitioner does not serve an
affidavit then he does not use it in support of his application unless the court orders otherwise
[R231(2)]. Once the application is served, the practitioner files proof of service with the Registrar
(R41) in accordance with [R231(4)].
If the respondent wishes to respond he should file the notice of opposition within a period of 10
days exclusive of the day of service and 1 day for every additional 200 km [R232]. If the respondent
fails to file the notice of opposition within the time limit he or she shall be barred [R233(3)]. If the
respondent wishes to respond he files a notice of opposition in Form 29, which is supported by one
or more affidavits (the respondent opposing affidavit or replying affidavit). The applicant has to
respond to respondent’s opposing affidavit by an answering affidavit. The answering affidavit must
be filed at least 10 days before the date of hearing of the application [R234(1)]. After the answering
affidavit no other affidavits can be filed except with the leave of the court or judge [R235].
The next stage is to set down the application for hearing. Firstly, if the respondent has been barred
then the applicant may proceed to set the matter down without further notice to him [R236(1)]. If
there is an opposing affidavit the normal procedure is to set down the matter in terms of R223
(general set down for civil cases). Where the respondent has filed a notice of opposition and
opposing affidavit, and after 1 month the applicant has neither filed an answering affidavit nor set
down matter for hearing, the respondent has two options:
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1. R223. The respondent may set the matter down for hearing.
2. R236(3). The respondent may make the chamber application to dismiss the matter for the court
of prosecution. The same applies where the applicant had filed an answering affidavit and after a
month has not set the matter down for hearing [R236(4)].
The date of set down can be altered by a party either by application orally or in a chamber
application [R237]. Where the matter is to be set down for hearing the applicant has to file heads of
argument, which are basically an indication of what the main arguments are going to be and
including the case authorities [R238].
Hearing the application. The order is that the applicant is heard first and the respondent is heard
thereafter, responding to applicant’s application, and then the applicant replies, but the court may
order otherwise [R239]. The court will then grant the order in finality. The court may grant the order
applied for or it can dismiss the application in its entirety or grant a variation of the order sought.
The court may also grant a provisional order rather than a final order [R240]. The court will then
make an appropriate order as to costs.
Procedure for Chamber Application
The application should have a draft order. The appropriate form to use is Form 29B. It should be
supported by one or more affidavits unless the application falls within the provisions of R241(2)
where the chamber application is for a default judgment in terms of R57 (for a claim for debt or
liquidated demand) and also where the facts are evident from the records an affidavit is not
required. If the application is to be served on another party use Form No. 29 with appropriate
modifications. The chamber application should be served on all interested parties unless the
respondent has had due notice of the order sought or the applicant is only party to the application.
You can’t make it ex parte unless:
R242(1) sets out the circumstances in which the application is made ex parte:
(i) where the matter is uncontentious in that the applicant is the only person who can
reasonably expected to be affected by the order sought
(ii) where the order sought is either a request for directions or an order to enforce any
provisions of the rule in circumstances where no other person is likely to object.
(iii) where there is a risk of perverse conduct in that any other person who would otherwise
be entitled to notice of the opposition is likely to act so as to defeat wholly or partly the
purpose of the application prior to an order being granted or served
(iv) where the matter is so urgent and the risks of irreparable damage to the applicant is so
great so that there is insufficient time to give notice to other parties entitled to; for example, a
parent about to remove a child from jurisdiction
(v) where there is any other reason acceptable to the judge why notice should not be given
to parties entitled to: see ZIMDEF (Pvt) Ltd v Minister of Defence and Anor 1985 (1) ZLR 146.
A legal practitioner can then file heads of arguments in terms of R243.
The set down depends on whether matter is urgent or not. If it is urgent the Registrar will
immediately submit the papers to the judge who will consider the matter [R244]. However, there is
a proviso to R244 that the judge may direct that any interested party be invited to make
representations in such manner and with such time as the judge may direct and the representations
will be on the issue on whether or not the applications should be treated as urgent. Where the
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matter is not urgent the Registrar will submit it to the judge in the normal course of events but
without undue delay [R245].
The powers of the judge in chamber application
1. The judge may require the deponent of any other person who may assist in the resolution of the
matter to give evidence under oath or otherwise [R246(1)(a)].
2. The judge may require either party’s legal practitioner representatives to appear before him to
present other arguments as the judge may require [R246(1)(b)]. If the applicant is requesting a
provisional order then the judge will grant the provisional order either in terms of the draft or a
variation of that draft if he is satisfied that the papers filed establish a prima facie case. The
provisional order is sometimes called rule nisi. Before granting a provisional order the judge may
require the applicant to give security for any loss or damage that may be caused by the order
[246(3)]. R247 sets out the contents of the provisional order. Firstly, it shall be in Form 29C. it shall
specify the parties upon whom the provisional order to be served, together with the application and
supporting documents. If the service is not to be effected in terms of the rules then the order shall
specify how service is to be effected, that is, by advertising in a local newspaper. The order shall
specify the time within which the respondent and other interested person shall file notice of
opposition if they oppose to the relief sought. Once the provisional order has been served the
matter will then proceed like a court application.
There are specific provisions relating to deceased estates and persons under Disability R248 and 249.
In case of a deceased estate, a provisional insolvent estate or a provisional liquidated company,
papers are to be served on Master [R248].
In case of a person under disability (including a minor) must first make chamber application for the
appointment of a curator. The papers are then served on the curator, who prepares report [R249(1),
(2) and (3)]. The time for notice of opposition runs from the date of service on the respondent of the
curator’s report [R294(4)].
R250 requires that applications involving the performance of any act in a deeds registry serve a copy
of the application on the Registrar of Deeds. The service should be made at least 10 days before the
date of set down of the application. The purpose of the service is to allow the Registrar of Deeds to
make a report on the matter if he considers it necessary or if the court requires such a report.
Miscellaneous Procedures
Provisional Sentence
This is a procedure that is designed to enable the plaintiff who sues on a liquid document to obtain
relief without proceeding to trial. The purpose was clearly explained in Lesotho Diamond Works
(1973) (Pvt) Ltd v Lury 1975 (2) SA 140. The court relied on Memel Board of Executors v Lardner 1930
OPD 197, where the court said the procedural method of provisional sentence is no magic wand
used to disarm prospective defendants or dispel all opposition thereto but it is a well-recognized,
long-standing and often used mode of obtaining speedy relief where the plaintiff is armed with a
liquid document. The purpose of a provisional sentence is to avoid the more expensive, cumbersome
and often dilatory machinery of an illiquid action: see F O Kollberg (Pty) Ltd v Atkinson’s Motors Ltd
1970 (1) SA 660. The court said, ‘the purpose of provisional sentence proceedings is to enable the
plaintiff to receive prompt payment without having to wait for the final determination of the dispute
between the parties’ (page 662).
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Requirements to be satisfied
The plaintiff must be suing on a liquid document. The defendant must be unable to adduce such
counter proof or evidence as will satisfy the court that in the principal case the probabilities of
success would be against the plaintiff. The probabilities of success must be in favour of the plaintiff.
What is a liquid document?
A liquid document has the following characteristics:
1. It must be signed by the defendant or his authorized representative or be deemed in law
acknowledged by the debtor.
2. The document must send money: it must create an obligation to pay money.
3. The amount of the debt must be fixed and definite on the face of the document. No extrinsic
evidence is allowed to prove the debt apart from certain exceptions.
Extrinsic evidence may be allowed on ancillary items which are ancillary to the obligation; such as
bank cheques and insurance premiums: see Prudential Building Society v Reynders 1941 WLD 29.
When payment of the debt is conditional upon the happening of an event. Evidence to prove that
that event has happened can be provided by extrinsic evidence. What must be conditional is the
payment of the debt: see Rich and Ors v Lagerwey 1974 (4) SA 748 AD. In this case it was held that
simple conditions precedent are not a bar to a provisional sentence. All that the plaintiff needs to do
is to allege that the condition has been complied with or that the event has happened. Once the
plaintiff does this, the onus shifts to the defendant to contradict the allegations made by the
plaintiff. The court went on to give a general definition of simple condition: it connotes a condition
or event of a kind unlikely in the nature of things to give rise to a dispute or, where it is disputed, is
inherently capable of speedy proof by means of affidavit evidence.
Procedure in terms of Rules R20
The plaintiff who has a liquid document has to claim a provisional sentence [R20]. The plaintiff uses a
special summons for a provisional sentence. R21 gives the requirements of the summons. In terms
of R22 use Form nos 4 and 5.
R23. A copy of the liquid document should be served with the summons.
R24 sets out additional requirements where the claim is based on a mortgage bond.
R25 gives the defendant a response to the summons of a provisional sentence. The summons for a
provisional sentence actually call upon the defendant to satisfy the plaintiff’s claim or, failing which,
to file papers to oppose the claim for a provisional sentence.
R25(1) file a notice of opposition and do so in Form 29A, which is supported by one or more
supporting affidavits indicating why a provisional sentence should not be granted. From then on, the
procedure is the same as opposed applications and Order 32 shall, mutatis mutandis apply [R25(2)].
What is it that the defendant should establish
The defendant should show that the probabilities of success are against the plaintiff: see Maimba v
Nyagura HH 394/84. Held: once the signature on the liquid document is admitted the onus is on the
defendant to show that on a balance of probabilities there is a probability of success in the principal
action in his or her favour. There are exceptions to the principle that the onus lies with the
defendant. Where he denies the signature on the acknowledgement of debt is his own the onus
shifts on to the plaintiff to prove the signature on the document: see also Donkin v Chiadzwa HH

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63 MY NOTES
217/87. It was stated that where the defendant denies the signature the onus should shift to the
plaintiff and the matter was referred to trial to resolve the disputes on the papers.
In terms of R29, if the defendant acknowledges the claim either when he appears in court for the
provisional sentence hearing or by filing a written notice to the Registrar, the court will give a
provisional sentence judgment which disposes of the matter finally. If the defendant is unsuccessful
in opposing the provisional sentence the court will give a judgment but within 1 month after
satisfying the judgment of the defendant voluntarily or within 1 month of attachment made under a
writ of execution the defendant may not satisfy the judgment the defendant may enter appearance
to defend. The matter will proceed as a contested action [R28].
If the defendant does not enter appearance to defend within 1 month the judgment becomes final
[R28].
If the plaintiff wants to execute the judgment given he should provide security even if the defendant
demands security [R31].
In all other circumstances the court may order security by the plaintiffs in case the matter may
appear on trial that the debt or claim was not overdue [R30].
R32. The nature of the security and the amount is fixed by the Registrar. Either party may appeal
against the decision of the Registrar to the court.
Where the judgment becomes final and security has been provided, security falls away [R28–32]. If
the judgment is granted and the defendant enters an appearance to defend, the provisional
summons should stand as the plaintiff’s declaration and the defendant shall file his plea within 10
days of entering of appearance and thereafter the matter shall proceed as an ordinary action. Where
a provisional sentence is refused the court will order the matter to proceed to trial. The summons of
a provisional sentence will stand as an ordinary summons and the defendant will be required to
enter appearance to defendant within 5 days of the court’s judgment. Thereafter the matter will
proceed as an ordinary action unless the court gives other directions [R34].
Interpleader
Interpleader proceedings can be instituted by an applicant who holds property or has incurred a
liability in respect of which there are two or more claimants and these claimants are making adverse
claims. Generally, the parties to interpleader proceedings are divided into two:
1. The Deputy Sheriff can institute interpleader proceedings in respect of property attached by him
and a third party alleges that the property is his and not of judgment debtor.
2. Other claimants; that is, any other person who is holding property or has a liability for which they
are facing adverse claims.
The purpose was explained in Bernstein v Visser 1934 CPD 270 (page 272):
[An] interpleader is a form of procedure whereby a person who is a stakeholder of other
custodian of movable property to which he lays no claim on his own rights but to which two or
more other persons lay claim may secure that they shall fight out their claim among
themselves without putting him to the expense and trouble of an action/actions. (pages 272–
273)
Procedure
The applicant must give notice to the parties. The notice states the nature of the viability, property
or claim that is the subject matter of the dispute and will call upon the claimants to deliver
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64 MY NOTES
particulars of the claim in the form of a notice of opposition with supporting affidavit(s). It should
also state that the applicant is applying for the court’s decision as to his liability or the validity of the
respondent’s claim [R207]. The applicant would deliver with the notice an affidavit and in that
affidavit state:
1. They claim no interest in the subject matter in dispute other than the charges and costs.
2. They do not collude with any of the claimants.
3. They are willing to deal with or act in regard to the subject matter in dispute as the court may
direct [R208].
R206 gives the duties of the applicant in relation to the subject matter pending decision by the court.
If the subject matter is merely that the applicant will pay the money to the Registrar who will hold
the money until the matter has been decided [R206(1)].
Where the subject matter is any other thing capable of delivery the applicant shall tender delivery of
the thing to the Registrar or take steps to secure the availability of the thing in question as the
Registrar may direct [R206]. Where the conflicting claims relates to immovable property the
applicant should place the title deeds of the property available to him in the possession of the
Registrar and also give an undertaking to the Registrar that he will sign all the documents necessary
to effect transfer of the property as may be directed by the court [R206(3)]. Once the notice and
affidavit have been served on the respondent then the parties will proceed in the same way as in
opposed applications [R209].
Powers of the court [R210(2)]
If a party is in default and does not appear at the hearing of an interpleader the court will declare
that person in default and all other persons claiming under him barred [R210(1)]. In respect of other
claimants who are there the court will adjudicate on various claims after hearing such evidence as it
sees fit. If the court decides that it cannot decide the issue on paper then it can order that any
claimant be made a defendant in an action already commenced in respect of the subject matter in
dispute or, if there is no action concerned, the court may order a trial and it will decide which
claimant shall be the plaintiff and which should be the defendant.
How does the court decide who has onus?
If its property attached by the Deputy Sheriff and the property is in the possession of the judgment
debtor then the court will usually order the third party who is claiming the property be the plaintiff
because it is assumed prima facie that the property in possession of the judgment belongs to the
judgment debtor: see Bruce NO v Josiah Parks and Sons (Pvt) Ltd 1971 (1) RLR 154; Bruce NO v de
Rome and Anor HH 109/89; Greenfield NO v Blignaut 1953 SR 73. The case involved an impounded
bull. The two parties claimed ownership of the bull and the court was unable to resolve the matter
on papers and ordered the matter to go to trial. It failed to decide who the owner was. Held: each
party must be a plaintiff as they are. It made a complicated decision that one party must seek a
declaration that the bull was his and the other party was to seek a counter-claim that the bull was
his.
If a defendant in an action institutes interpleader proceedings the proceedings will be stayed until
the court makes the decision on the interpleader [R211].

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Arrest tamquam Suspectus De Fuga [Order 36]
This is a procedure available where a debtor is about to flee from the jurisdiction of the court in
order to avoid payment of the debt.
Purpose of arrest
There is a need to distinguish between this arrest and the arrest of civil imprisonment. This arrest is
to ensure that the debtor remains in jurisdiction until a judgment is obtained. A civil imprisonment
arrest is to ensure that the debtor performs the judgment: see Steyn v Bolus and Co 1915 EDL 60.
The procedure is not available:
1. Where the respondent is peregrinus: see Green v James 1973 (4) SA (R) at 114.
2. Where the amount involved is less than the prescribed minimum.
3. Where summons has already been issued.
Procedure
The applicant must establish to Judge or Registrar by affidavit:
1. Good cause of the action against the respondent for the amount, which is less than the
prescribed minimum [R278(1)(a)]: see Henderson v Zimnat Insurance Co 1981 ZLR 180.
2. There is good ground for believing that respondent is about to remove himself from Zimbabwe
for the purpose of evading payment of debt: see Getaz v Stephen 1956 (4) SA 751.
3. The absence of the respondent from Zimbabwe will materially prejudice the plaintiff in the
prosecution of his claim [R278].
The Registrar will issue a Writ [R280 and Form 31]. Before the issue of any such writ, the plaintiff
shall file with his application or, where the writ is issued by the Registrar, shall lodge with the
Registrar an affidavit sworn to by the plaintiff or his agent or his servant, in which shall be set forth
all the facts that would justify with the judge or the Registrar, as the case may be, in issuing or
refusing to issue the said writ, and in particular the following:
1. The sum alleged to be due to the plaintiff by the defendant, when it became due and the cause
thereof.
2. Whether or not the plaintiff holds any security for the alleged debt and, if he does, the nature
and value thereof.
3. The deponent believes that the defendant is about to remove from Zimbabwe, and the grounds
of such belief.
4. The steps, if any, that the plaintiff has already taken to enforce his claim.
A writ has two functions: it commands the arrest of the defendant and that he be brought before
courts on the return date; and it sets out a claim as in the Summons. The service of a Writ is done in
terms of R281 and R282. A writ of arrest may be executed on any day, at any hour and at any place;
provided that such a writ shall not be executed against a Member of Parliament or an officer of
Parliament while such member or officer is in actual attendance on Parliament or any committee
thereof; or a person entitled to immunity from personal attachment under the Privileges and
Immunities Act [Chapter 28]; or a person upon whom immunity from personal attachment is
conferred by any other law.
When respondent can be released [R283, 284, 290 and 292]
If the debtor pays to the Sheriff any amount claimed by the creditor he is entitled to be released or if
he pays security he is entitled to be released.
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Once a person is arrested he is given an opportunity to appear in court to seek his discharge [R287].
The respondent may anticipate the return day [R287].
When the applicant is entitled to a final judgment: see Kearney v Joubert 1976 (2) RLR 203.
When the respondent not entitled to release [R291 and Getaz v Stephen above at 753].
In Forma Pauperis [Order 44]
This procedure allows a person without means to institute or defend proceedings in the High Court.
It is normally available to people who are normally resident within the jurisdiction of the court and
who satisfy the means test. To qualify for leave to use or defend in forma pauperis the applicant
must establish that:
1. He is normally resident within jurisdiction of the court, [R393(1)]: see Ex parte du Preez 1964 (2)
SA 227 (R).
2. He satisfies the means test [R394(1)(a)]: see Boulton v Boulton 1973 (1) S.A 369 (R); Joseph v
Joseph 1958 (4) S.A. 85 (R); Zimunya v Zimunya HH 378/84.
Procedure:
The applicant makes a request to the Registrar who refers the applicant to legal practitioners and, if
in doubt, requests a report from the Social Services [R393(1) and (2)]. The legal practitioner must
enquire into the applicant’s means and the merits of his case (prima facie case [R393(3): see
Chichoni v Food Industries (Pvt) Ltd HH 63/91]. If the legal practitioner is satisfied then the applicant
files an affidavit of means and a statement that the legal practitioner will act gratuitously [R394(1)].
The legal practitioner cannot thereafter withdraw or settle the proceedings or renounce his agency
without leave of a judge [R395(1)]. In the Chichoni case (supra) it was held that a legal practitioner
should not have been appointed to act in forma pauperis and that he should not have accepted to
act in forma pauperis if he was satisfied that the applicant had no cause of action. Because of the
irregularities he was allowed to withdraw. If unsuccessful, costs can be awarded against in forma
pauperis litigant. If it is successful the other side will be ordered to pay the costs and the in forma
pauperis legal practitioner can then recover the costs [R395].
Review
See s 26 of the High Court Act and Order 33 of the High Court Rules.
Purpose
To set aside or correct decisions of inferiors courts, tribunals and administrative authorities.
Jurisdiction to review
Section 26 of the High Court Act provides that, subject to the Act and any other law, the High Court
has the power, jurisdiction and authority to review all proceedings and decisions of all inferior courts
of justice, tribunals and administrative authorities within Zimbabwe.
Differences between an appeal and a review
There are two main differences between an appeal and a review:
1. An appeal is based on the record of the proceedings appealed against while in a review the court
may go outside the record and hear extrinsic evidence.
2. An appeal deals with the substantial correctness of the decision while a review seeks to deal with
procedural irregularities.
Grounds for review
Section 27 (1) of the High Court Act:
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1. Absence of jurisdiction on the part of the court, tribunal or authority concerned: see Witham v
Director of Civil Aviation and Another 1983 (1) ZLR 52; Cluff Mineral Exploration (Zimbabwe) Ltd v
Union Carbide Management Services (Pvt) Ltd and Ors 1989 (1) ZLR 224.
2. Interest in the cause, bias, malice or corruption on the part of the presiding officer: see Austin
and Anor v the Chairman of the Detainees’ Review Tribunal and Anor 1988 (1) ZLR 21.
3. Gross irregularity in the proceedings or decision: see Abbey Estates and Investments (Pvt) Ltd v
Property Renting Corp (Pvt) Ltd 1981 ZLR 39; Ministry of Labour, Manpower Planning etc. v P.E.N.
Transport (Pvt) Ltd 1988 (1) ZLR 293.
Power of court
1. The court may confirm, set aside or correct (s28 of the High Court Act): see Coke v Estate Agents
Tribunal 1972 (1) RLR 315.
2. The court usually sets aside and remits to court a quo (see Abbey Estates, case supra), but may
correct in exceptional circumstances: see Director of Civil Aviation v Hall 1990 (2) ZLR 354.
Procedure:
Order 33 High Court Rules
The application is filed and served on the presiding office of the proceedings under review and all
other parties affected [R256]. Proceedings are to be instituted within 8 weeks of the decision or
termination of the proceedings under review [R259]: see Cluff Mineral Exploration (Zimbabwe) Ltd
and Ors v Union Carbide Management Services (Pvt) Ltd and Anor, 1989 (3) ZLR 338; Vrystaat Estates
(Pvt) Ltd v President Administrative Court and Ors 1991 (1) ZLR 323.
Notice must state the grounds and exact relief required [R257]: see Minister of Labour, Manpower
Planning etc. v P.E.N. Transport, case supra.
Costs
A court hearing a matter can award a litigant his/her costs of the proceedings.
General
The purpose of an award of costs to a litigant is to indemnify him for the expense to which he has
been put through having been compelled to initiate or defend proceedings: see Kerwin v Jones 1958
(1) SA 400 (S.R) at 401–402. However, in practice, an award of costs is seldom a complete indemnity.
Main categories of costs
1. Party and party costs, which are the costs that are awarded by the court to the successful party in
an action. They are assessed using the relevant court tariffs. These tariffs may be amended from
time to time.
2. Attorney and client costs are the costs that a legal practitioner is entitled to recover from his
client for professional services rendered by him. These costs are payable by the client whatever the
outcome of the matter and are not dependent on the award of costs by the court. They include costs
which, although not necessary, are incurred at the request of the client.
Others categories of costs
1. Reserved costs. These are normally awarded in interlocutory proceedings. The question of costs
will be determined by the court that will ultimately dispose of the matter.
2. Wasted costs. These are costs that are wasted as a result of either postponement of the
proceedings or other delays. The party responsible for the delay or postponement will be ordered to
pay the wasted costs. They do not cover all the costs of the delay.
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3. Costs in the cause. These are usually awarded in interlocutory proceedings. Their effect is that
whoever succeeds when the matter is finally disposed of will recover both the costs of the main
proceedings and the costs of the interim proceedings.
4. Security for costs. This where a party is required to furnish security for the costs that will be
incurred by the other party.
5. Costs de bonis propriis. These are awarded against a legal practitioner in his capacity where the
court wants to show its displeasure at the legal practitioner’s conduct: see Washaya v Washaya
1999 (2) ZLR 105; York Cottages (Pvt) Ltd v Industrial Steel and Pipe Ltd and Anor HH 214/91.
Rules in relation to award of costs
The award of costs is a matter wholly within the discretion of the court. The court will be guided by
the following rules:
1. As a general rule the successful party is entitled to the costs. The court looks to the substance of
the judgment, not its form, in deciding who is the successful party.
2. The court can for good reasons, deprive the successful party of the costs in whole or in part: see
Municipality of Bulawayo v Zimbabwe Football Association S 172/89; Moyo v Minister of Lands,
Agriculture and Rural Resettlement and Anor S 112/91; Musara v Air Zimbabwe HH 260/91.
3. The court can, for good reason, order the successful party to pay the other party’s costs in whole
or in part.
4. The court, can, in special circumstances, order the unsuccessful party to pay the costs of the
successful party on an attorney and client basis: see Nel v Waterberg Land Bouwers K-op, Vereniging
1946 A.D. 597, Gwinyayi v Nyaguwa 1982 (1) ZLR 136; Muhaka v Vander Linden 1988 (2) ZLR 331;
Samkange and Anor v The Master and Anor HH 63/93 (Herbstein and Van Winsen, pages 487–488).
Security for Costs
When can security for costs may be ordered
The court has inherent jurisdiction to order the applicant or plaintiff to give security for costs. The
court will consider all relevant circumstances of each particular case. The circumstances in which
security for costs may be ordered by court fall into following classes:
1. Where the plaintiff is a peregrinus he has to provide security for costs: see CRE Insurance Ltd v
Chisnall 1981 ZLR 331.
2. Where the plaintiff is a limited liability company: s350 of Companies Act. [Chapter 24:03].
3. Where the action is frivolous or vexatious and assumes that the defendant has not sought its
dismissal: see Western Assurance Co v Caldwell’s Trustee 1981 AD 262.
3. Where the plaintiff is nominal: see Mears v Brooks Executor 1906 T.S. 546; Pillemer v Isreal Stam
and Shartin 1911 WLD 158.
Procedure
Application on notice is made to the defendant following the demand as soon as possible after
action instituted. The amount of security is fixed by the court or referred to the Registrar. If the
order is granted the matter is stayed until security is provided: see Stern and Another Warren 26 SC
131.
Taxation of Costs [Order 38]
This is a process where a court official, known as a taxing officer, examines a party’s bill of costs to
see if it is in conformity with the relevant tariff. Every Registrar is a taxing officer for the purpose of
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taxing costs and may designate such persons as he deems fit and for whom he shall be responsible
as assistant taxing officers [R306(1)].
When taxation is necessary
Unless the amount of costs has been agreed between the parties, the costs must be taxed by the
taxing officer before they can be recovered.
Procedure
The party wanting to recover costs must draw up a detailed statement of account for his fees and
disbursements (known as a bill of costs) in accordance with the relevant tariffs:
1. The tariff in respect of any judicial proceedings is set out in Second Schedule to the High Court
Rules.
2. The tariff in respect of work done in connection with any other matter is set out in the Law
Society Tariff [R308(2) and (3)].
3. The tariff in respect of charges for witnesses and qualifying expenses set out in the Third
Schedule to High Court Rules [R310(1) and (2)]
Thereafter the party may then appear before the taxing officer without the other party having been
given notice to justify the bill of costs or on a minimum of 3 days’ notice to other party where they
are not by default; in which case the other party may also be present at the taxation to raise
objections.
Cost allowed on taxation
The taxation officer allows all costs, charges and expenses as appear to him necessary or proper for
the attainment of justice or to defend the rights of any party [R307]. The taxing officer may, without
filing any formal documents, submit any point arising at a taxation for decision by a judge in
chambers, and it shall be competent for the taxing officer and for the legal practitioners who
appeared at the taxation to appear before the judge respecting such point [R313]; review of taxation
[R311].
Execution/enforcement
Writ of Execution
There is no execution against the State (s4 of the State Liabilities Act).
There is no execution on certain kinds of property (s21 of H.C. Act). These include:
1. The necessary beds, bedding and clothing of such person or of any member of his family.
2. The necessary furniture of such person, other than beds, and household utensils in so far as they
do not exceed in value such sum as may be prescribed in the rules of court.
3. Stock, tools and implements necessarily used by such person in his trade or occupation in so far
as they do not exceed in value such sum as may be prescribed in the rules of court.
4. Food and drink sufficient to meet the needs of such person and the members of his family for 1
month.
5. Professional books, documents and instruments necessarily used by such person in his profession
in so far as they do not exceed in value such sum as may be prescribed in rules of court.
General
Order 40 R 322–333 and Forms 34–41.
1. There is no execution on superannuated judgments [R324].

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2. No attachment may be made on immovable property, (unless it has been declared executable)
until movables are exhausted [R326].
3. Notice to be given by the Sheriff before ejectment or the removal of goods unless there is a fear
of perverse behaviour [R326A] It is a criminal offence to obstruct the Deputy Sheriff, make false
declarations relating to property or to dispose of or remove goods under attachment (s22 of the
High Court Act).
4. The Sheriff may require security [R329].
5. Participation in the proceeds of a sale in execution [R331(1), (2) and (3)].
Movables [Order 40 R334–345].
(i) The Sheriff or his Deputy may, by virtue of a writ of execution, seize all kinds of movable
property, including money and banknotes. Incorporeals can be attached, with the exception of
salary [R343(1)]
(ii) Except with leave or agreement, movable property is to be sold at public auction for cash
or to the highest bidder [R338]
(iii) Sale in execution must be advertised [R338].
Immovables [Order 40 R 346–367]
(i) Requirements on service [R347(1) and (2)] and Forms 43, 44 or 45. The method of
attachment of immovable property, including a mining claim, should be by notice by the
Sheriff or his Deputy served, together with a copy of the writ of execution, upon the owner of
the property and the Registrar of Deeds or officer charged with the registration of such
property.
(ii) Advertisement of sale [R352]. The Sheriff or his Deputy must cause the sale to be
advertised at least once in the Gazette and in a newspaper circulating in the district in which
the property is situated and in such other manner as he may deem to be necessary. The
Sheriff shall also send to each holder of a mortgage over the property, by registered letter
addressed to his last known address, or to his attorney, notice of the date and venue of the
sale.
(iii) R353. Conditions of sale. The conditions of sale shall be prepared by the Sheriff, but it shall
be competent for the execution debtor or any other person having an interest in the sale to
apply to a judge in chambers, after due notice to the Sheriff, for amendment of such
conditions.
(iv) R354. Sale by auction without reserve
(a) Sale by public auction without reserve is dealt with in R354
(b) Declaration that highest bidder is the purchaser [R356]
(c) R358(1) and (2) deal with when Sheriff may sell by private treaty
(d) A sale can be set aside in terms of [R359]: see Bhura v Lalla 1974 RLR 31; Cohen v
Cohen 1979 (3) S.A 421 (R); Butters v Anor v Guterness and Others 1978 RLR 444
(e) A sale can also be stayed on application by debtors or members of family
(f) When sale can be confirmed is provided for in [R360]
(g) Plan for distribution and distribution of money [R363–366]
(h) When sale can be stayed was looked at in Cohen v Cohen 1979 (3) SA 420 (R);
Chibanda v King 1983 ZLR 116.
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Garnishee Orders [Order 42]
A judgment creditor who has obtained a judgment or order for the recovery or payment of money,
which judgment or order is unsatisfied, may make a court application for an order that any money at
present due or becoming due in the future to the judgment debtor by a third party within the
jurisdiction (called the garnishee) shall be attached [R377].
Requirements
1. The judgment creditor with judgment or order for recovery or payment of money.
2. The judgment or order is unsatisfied.
3. Money is at present due or becoming due in future by garnishee order to the judgment debtor.
[Order 42 R377]: see Simpson v Standard Bank of SA Ltd 1966 (1) SA 590; Muvengwa v Matarutse
and Another 1968 (2) ZLR 300; Honey and Blanckenberg v Law 1965 ZLR 685.
Procedure
There is need for a preliminary notice of application where the State is the garnishee in terms of
R377 A (1) and R378(1). The court application calls upon the garnishee and the judgment debtor to
show cause why the debt sought to be attached should not be attached, and is supported by an
affidavit by the judgment creditor or by his attorney stating that judgment has been recovered or
the order made, and that it is still unsatisfied, and the grounds for the knowledge or belief of the
deponent that the garnishee is or will be indebted to the judgment debtor. There should be an
attachment of notice received from the garnishee to the court application where the garnishee is
the State [R377A(2)].
Service of the court application is provided in R379(1) and (2) and R380. The court application must
be served on the garnishee and on the judgment debtor and the procedure laid down by Order 32 is
followed. The service of a court application on the garnishee binds debt in the garnishee’s hands;
but note the proviso where the garnishee is the State [R383 and 384]. The court may order payment
by instalments and will take into account the amount required for the maintenance of the judgment
debtor and his dependants [R385].
Payment made by garnishee is a valid discharge to him as against a judgment debtor [R386]. In cases
where the garnishee fails to comply with order: see African Distillers Ltd and Other v John Plagis
Bottle Store 1972 (1) ZLR 171; Mugabe, Mutezo and Partners v Barclays Bank of Zimbabwe Ltd and
Anor 1989 (3) ZLR 162.
Civil Imprisonment [Order 41]
When the Deputy Sheriff’s return of service pursuant to a writ of execution is that the judgment
debtor or defendant has no sufficient goods to satisfy the judgment debt or if is a nulla bona return
the judgment creditor may cause to be issued summons commanding the judgment debtor to pay
the amount and unless he does so to appear in court on the return day of the judgment to show
cause why an order of personal attachment should not be made against him/her. The summons is in
Form No. 46. There should be personal service of the summons on the debtor.
On the return date an inquiry will be made by the court as to the means, and evidence will be given
orally or written. If after the enquiry the court is satisfied that the failure is wilful, an order can be
made. Imprisonment is for a maximum period of 3 months. In terms of R370B, the court shall not
order the imprisonment of a judgment debtor for a period exceeding 3 months unless the court
considers that there are special circumstances which justify imprisonment for a longer period.
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Where there are two or more orders of personal attachment and imprisonment against the same
debtor such orders are cumulative, with effect according to priority of issue of the respective writs
of personal attachment, unless otherwise directed by the court [R372].
Contempt of Court
Note the distinction between criminal and civil contempt of court:
Civil contempt
1. The onus is on the applicant to establish civil contempt.
2. The applicant has obtained an order ad factum praestandum (that is, an order to do, or abstain
from doing a particular act, or to deliver a thing).
3. The order has been served or has come to the personal attention of the respondent.
4. The respondent has failed to comply with the order.
The onus then passes to the respondent to rebut the inference of contempt. The respondent can do
this by establishing he was bona fide: see Haddow v Haddow 1974 (1) RLR 5.
Procedure
Provided for in Order 43 [R332–392]. The institution by a party of proceedings for contempt of court
shall be made by court application in Form 48. Such court application must set forth distinctly the
grounds of complaint and shall be supported by an affidavit of the facts. Where proceedings are
instituted at the instance of the court ex mero motu the notice shall be issued by the Registrar and
no affidavit of the facts is necessary.
Where the court or a judge orders a person to be committed to jail, or imposes a sentence of
imprisonment for contempt of court, the Registrar shall furnish the Sheriff or his Deputy, or a
constable or other peace officer, with a writ of personal attachment and committal to prison in Form
No. 49. Immediately on delivery of such writ the Sheriff or his Deputy, or any constable or other
peace officer to whom it is delivered, shall execute the same [R392]: see Sabawu v Harare West
Rural Council 1989 (1) ZLR 47. Contempt must be purged before applicant can have access to the
court: see Sabawu case.
Appeals
Procedure for Noting and Prosecution of Appeals from the Magistrates Court
The High Court has jurisdiction to hear and determine an appeal in any civil case from the judgment
of any court or tribunal from which in terms of any other enactment an appeal lies to the High Court.
As such an appeal from the magistrates court lies to the High Court: see s30 High Court Act.
In terms of s30(2), unless provision to the contrary is made in any other enactment, the High Court
shall hear and determine and shall exercise powers in respect of an appeal referred to it in
accordance with the Act.
On the hearing of a civil appeal the High Court has the power to confirm, vary, amend or set aside
the judgment appealed against or give such judgment as the case may require; it may also give an
order, if it thinks the order or direction is necessary or expedient in the interests of justice: see s31
of the High Court Act.
Where an appeal to the High Court in any civil case involves a question of law alone, a judge of the
High Court may, if he thinks fit, request the parties thereto to state the question for determination
by the High Court. Upon the request being made the parties shall, if they are able to agree thereon,
state the question, together with all the circumstances under which that question has arisen, in such
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manner and within such period as may be prescribed by the rules of the court. If the parties are
unable to agree upon the statement of the question and the circumstances under which it has
arisen, they shall inform the Registrar of the High Court and thereupon the appeal shall be dealt with
as if such request had not been made: see s32 of the High Court Act.
Note. Reference should be made to what is said on appeals under the Procedure of the magistrates
court, especially on noting of appeals and on execution of judgment pending appeal.

CHAPTER 4
The Procedure of the Supreme Court
Appeals from the High Court go to the Supreme Court: see s43 of the High Court Act on the right to
appeal and parts i, ii, iii and v of the Supreme Court Rules.
Which Judgments or Orders Can Be Appealed Against?
1. See s43. Certain judgments or orders of the High Court are not appealable at all [see s43(2) (a),
(b), (c) and (d)], subject to exceptions.
2. Certain judgments or orders are only appealable with the leave of the court or judge who granted
the order or, if the leave is refused, with the leave of a judge of the Supreme Court [s43(2)(d)]. These
are mainly interlocutory orders but there are exceptions, for example, liberty or custody or interdicts
or where there is a special case.
3. Certain judgments are appealable.
Procedure for Appeal
Application for leave to appeal must be made orally or in writing within 12 days of the judgment. If
the 12 days has expired one can seek condonation of the late application for leave to appeal. If leave
to appeal is refused one may appeal to the Supreme Court. If one is out of time within which to note
an appeal one must seek leave to appeal out of time. In R31 SC Rules. Rule 3 provides for the
calculation of time. It excludes Saturdays, Sundays and public holidays. The time is within 15 days
where leave is not required and if leave is required and has been granted, within 10 days of the
granting of the leave [R30(b)]. If leave is necessary and has been refused make an application within
10 days of the refusal. One can also apply for condonation of late noting or leave to appeal out of
time.
Factors taken into account when considering application for condonation are:
1. The extent of the delay. The court considers two periods of delay; delay in noting the appeal and
delay in seeking condonation itself.
2. Reason for the delay. There must be a reasonable explanation.
3. Whether there are reasonable prospects of success on appeal: see de Kuszaba-Dabrowski et uxor
v Steel NO 1966 (1) RLR 60; Ellis and Whaley v Marceys Stores Ltd 1983 ZLR 17; Mutizhe v Ganda and
Ors S17/09.
Procedure for Noting Appeal
1. An appeal must be noted timeously or upon condonation [R30 and 31 SC].
2. Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or
his legal representative, which shall state:
(i) the date on which, and the court by which, the judgment appealed against was given
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 (ii) if leave to appeal was granted, the date of such grant
(iii) whether the whole or part only of the judgment is appealed against
(iv) the grounds of appeal in accordance with the provisions of R32
(v) the exact nature of the relief which is sought
(vi) the address for service of the appellant or his attorney.
The notice of appeal shall be served on the Registrar, the Registrar of the High Court and the
respondent: see [R29(1)(a)–(f)] and Practice Note 1/13.
Record of Proceedings and Security for Costs
1. The record is prepared by the Registrar of the High Court and the Registrar requires from the
appellant an amount to cover the estimated costs of the preparation. The Registrar in his/her
discretion might accept a written undertaking to pay. The appeal will lapse if payment is not made or
the undertaking not accepted [R34(5)] SC Rules.
2. The appellant can apply to reinstate the appeal, providing an explanation as to why they did not
pay: see Muhaka v Van der Linden 1988 (2) ZLR 338; Maheya v Independent African Church 2007 (2)
ZLR 319.
3. The Registrar prepares the record and delivers a certified copy and three other copies (or more if
required) to the Registrar of the Supreme Court [R34(2) and (4) SC].
4. The appellant, if requested, must provide security for the Respondent’s costs of appeal within 1
month of the filing of the notice of appeal [R46 as read with R36(1), (2) and(3)].
5. The appeal may be dismissed for failure to provide security: see Chitsaka and Ors v Public Service
Association s14/94.
6. The Registrar notifies the appellant’s legal practitioner as soon as he receives the record and calls
upon them to file Heads of argument within 15 days and serve on the respondent. The appeal will be
regarded as abandoned and deemed to be dismissed if the Heads are not filed timeously [R33].
7. The respondent must file his own Heads within 10 days of receiving the appellant’s Heads.
8. The Registrar will set the matter down on at least 4 weeks’ notice upon receipt of the appellant’s
Heads [R43 as read with R55].
Powers of the Supreme Court on Appeal
See s22 of the Supreme Court Act. The court can confirm, vary or set aside the decision appealed
against. If there is no appearance the court can dismiss the appeal: see R36(4) and(5) of the SC.
Miscellaneous Matters Relating to Appeals from the High Court
At any time the respondent in an appeal or in a cross-appeal may, by notice given to the Registrar
and the opposite party, abandon the whole or any part of the judgment appealed against: see R33(3)
of the SC.
Execution of judgment pending appeal
The High Court has inherent jurisdiction to order an execution of judgment pending appeal. In
deciding whether to order execution the court considers:
1. The possibility of irreparable harm or prejudice being sustained by either party.
2. The prospects of success on appeal, specifically whether the appeal is frivolous and vexatious.
3. The equities of the case and the balance of hardship; that is, where the appellant or respondent
may suffer harm if execution is ordered: see Dabengwa and Anor v Minister of Home Affairs and Ors

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1982 (1) ZLR 223; Zimbabwe Distance (Correspondence) Education College (Pvt) Ltd v Commercial
Careers College (1980) Pvt Ltd 1991 (2) ZLR 61.
New evidence on appeal
The court may allow new evidence on appeal: see s22(1)(b) and R39 SC. In deciding whether or not
to allow it the court considers whether:
1. The evidence could not with reasonable diligence have been obtained for use at the trial / at the
proceedings in the lower court.
2. The evidence is apparently credible.
3. The evidence is such as would probably have an important influence on the result of the case.
4. Conditions since the trial or hearing of the proceedings have not so changed that the fresh
evidence would prejudice the other party: see Farmers’ Co-op Ltd v Borden Syndicate (Pvt) Ltd 1961
R&N 28; P v C 1978 RLR 80; Mazodze v Mangwanda 2005 (1) ZLR 87 (S); Chitengwa v Manase 2009
(1) ZLR 179 (S).
Amendment of proceedings on appeal
The court can allow the amendment of pleadings on appeal: see Bulford v Bob White’s Service
Station (Pvt) Ltd 1972 (2) RLR 224; Sager’s Motors (Pvt) Ltd v Patel RLR 207. An amendment will not
be allowed if it raises new questions of fact: see Ncube v Ndlovu 1985 (2) ZLR 281.
Renunciation of agency by legal practitioner [R12A of the SC]
The legal practitioner must give at least 3 weeks’ notice or, if agreed to less than 6 weeks’ notice of
set down, 1 month’s notice. Renunciation later than the prescribed time limit requires the leave of a
judge.
Special orders as to costs
The court has wide discretion to order costs. It can give an order depriving a successful party of all or
part of his costs in the appeal; or ordering a successful party to pay all or part of the costs of the
other party in the appeal; or ordering a party to pay costs on a legal practitioner and client scale or
on any other appropriate scale. It can also award costs de bonis propriis: see R12B of the SC].

ANNEX 1
Supreme Court of Zimbabwe
PRACTICE NOTE No. 1 OF 2013
The Chief Justice, the Honourable Mr Justice G. G. Chidyausiku, has issued the following practice
note
With effect from the date of issue, the Registrar of the Supreme Court shall not accept for filing all
notices of appeal in civil cases from the High Court which do not comply with the provisions of Rules
29, 34 and 46 of the Supreme Court Rules, 1964 and in particular, in the following respects:
1. The appellant must file six copies of the notice of appeal.
2. The notice of appeal must be signed by the Appellant or his Legal Practitioner.
3. The name of the court a quo should be stated.
4. The date of the judgment appealed against must be stated.
5. If leave to appeal is required the order granting leave to appeal must be attached on the notice of
appeal.
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6. The appeal must be noted within 15 days of the judgment appealed against and if leave to appeal
is required, within 10 days of the granting of leave to appeal. If leave to appeal is required but has
been denied, the notice of appeal against refusal of leave must be filed within 10 days of that denial
of leave.
7. The notice of appeal should indicate whether the appeal is against the whole judgment or part of
the judgment.
8. The grounds of appeal must be clearly stated.
9. The relief sought on appeal must be stated.
10. The address for service for the Appellant must be stated.
11. The notice of appeal must contain an undertaking to pay costs of the record where estimated
costs have not been paid.
12. The notice of appeal must offer security of the respondent’s costs of appeal.
13. The notice of appeal must be addressed to the Registrar of the High Court.
14. The notice of appeal must be addressed to the respondent(s).

Issued on 5 February 2013

CHAPTER 5 COUNCIL FOR LEGAL EDUCATION CIVIL PRACTICE AND

PROCEDURE EXAMINATION
(Candidates may have rules of court and any other relevant enactments available when writing the
examination)
I The Procedure of the Magistrates Court
Jurisdiction and the Limits Thereto
Issuing and Service of Documents
Summary Procedures
default judgment
consent to judgment
payment into court
exception to summons
special pleas
summary judgment
exception to Plea
Pretrial Procedures
request for further particulars to summons
plea
request for further particulars to plea
reply
close of pleadings
discovery of documents
pretrial conference
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 request for Further Particulars for purposes of Trial
Trial Procedures
set down
judgment
Enforcement of Judgment
warrant of execution
garnishee order
civil imprisonment
Rescission of Judgment
Appeals
right of appeal
procedure for noting of appeal
execution of judgment pending appeal
II The Procedure of the Maintenance Court
Application for Maintenance Orders
Enforcement of Maintenance Orders
Reading List
Magistrates Court Act, Chapter 710
Magistrates Court (Civil Rules) Statutory Instrument 290 of 1980
Maintenance Act, Chapter 509
A Guide to Civil Procedure in the Magistrate's Court (available from the Legal Resources
Foundations, Legal Publication Unit)
III The Procedure of the High Court Jurisdiction
general principles
claims sounding in money
claims relating to property
matrimonial matters
Parties
legal capacity
Form of Proceedings
action or application
Proceedings by Way of Action
commencement of proceedings
demand
summons
declaration
service
Further Procedure When Action Uncontested
judgment by consent
judgment in default
uncontested divorce order
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 application for rescission of judgment
Further Procedure When Action Contested
appearance to defend
plaintiff's declaration (if not already filed)
defendant's plea
plea on merits
special plea
defendant's claim in reconvention
plaintiff's replication
subsequent pleadings
closure of pleadings
application for directions
discovery
pretrial conference
set down
trial
Other Common Procedures Arising During Contested Actions
procedure for barring
request for further particulars
applications to strike out
exceptions
payment into court
application for summary judgment
application for dismissal of action
amendment of pleadings
Proceedings by Way of Application
on notice or ex parte
court application or chamber application
procedure for court applications
procedure for chamber applications
Miscellaneous Procedures
provisional sentence
interpleader
arrest of defendant
in forma pauperis
review
Costs
general
security for costs
taxation of Costs
Execution/Enforcement
writ of execution
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 garnishee
civil imprisonment
contempt of Court
Appeals
procedure for noting and prosecution of appeals from the magistrates court
execution of Judgment pending Appeal
Reading List
High Court of Zimbabwe Act, Chapter 706
High Court Rules, Zimbabwe Government Notice No. 1047/71.
Herbstein & Van Winsen The Civil Practice of the Supreme Courts in South Africa
IV The Procedure of the Supreme Court
Noting and Prosecution of Appeals from the High Court
Reading List
Supreme Court of Zimbabwe Act, Chapter 713
Supreme Court Rules, RGN. No. 380 of 1964

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