JURISDICTION OF THE HIGH COURT0000

The High Court is created by the High Court Act Cap 7:06. It has jurisdiction under both
common law and statute. In terms of the common law the High Court has inherent
jurisdiction it can order anything or determine any case which is not prohibited by law.
However note provisions of S53 of the HC Act. In terms of that section is somebody
takes a matter to the HC which could have been heard in the magistrates court then if that
person is successful or if they are successful they shall not recover any costs in excess of
those which would have been recovered if they had instituted the proceedings in the
magistrates court. If not successful they will be ordered to pay costs on a higher scale of
a legal practitioner and client.
There are a number of cases with inherent jurisdiction.
Nyaguwa v Gwinyai 1981 ZLR 25
In that case the petitioner and respondent had entered into a contract of lease in respect of
business premises on the 15th of July 1976. The monthly rental was $120.00 payable in
cash in advance at the shop on or before the 5th day of the month. Upon breach of the
contract the landlord (respondent) was entitled to cancel the lease, eject the tenant
regardless of any previous acceptance of late payment. In the lease agreement the parties
had agreed to submit to the jurisdiction of the magistrate court Salisbury in respect of any
case relating to the agreement. In December 1980 the responded issued summons
claiming cancellation of the agreement and ejectment of the petitioner on the basis that on
14 different occasions between February 1979 and June 1980 the petitioner had paid later
than the 5th day of the month. The petitioner did not see the summons so a default
judgement was entered and a warrant of ejectment was issued. The petitioner saw the
warrant when it was served on 16th January 1981. On the 19th of Jan 1981 the petitioner
filed a petitioner with the HC seeking the order restoring the property to him pending the
application for rescission of default judgement granted by the magistrates court. The
petitioner was relying on the High Courts jurisdiction to remedy injustice.
Held: Neither the HC nor any other court may overrule the decision of another court save
the extent that power to overule such a decision has been confered upon it by statute.
Held: 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 Granger v Minister of State (1984 (1) ZLR 194
Midlands Chemical Industries Pvt Ltd v Scotfin& Anor HH 20/91
It involved a sale in execution by public auction by the messenger of court in which they
were certain irregularities. The applicant who was the judgement debtor in the magistrate
court sought to have the sale set aside on the basis of these irregularities. It was argued
amongst other things on behalf of the 2nd respondent who was the purchaser of the
property that although the HC 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
rescission of sales in execution so this was a proper case for the HC to 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 Benefio Board SC 45/94 1994 (1) ZLR 353.
The appellant was injured whilst driving the army lorry as a result of which he became
disabled. He applied for disability compensation in terms of the state service Disability
Act. The application was made in terms of the Act to the Disablement Benefits Board.
The respondent refused his application on the ground that his injuries had been caused by
serious negligence or alternatively serious misconduct on his part. He appealed
unsuccessfully to the DB Appeal Board and he made a further appeal to the SC.
Held: The SC had inherent jurisdiction dealing with matters such as the appellant case
like the HC.
The court noted that there was no right to appeal to the SC under the State Service
Disabilities Act. The court further held that the SC inherent jurisdiction extended only to
procedural matters. Chief Justice Gubbay as he then was quoted the approval by the SA
case of Chunguete v Minister of Home Affairs and Ors 1990 (2) SA 836 in which
Flemming J stated at 848 G H what is appropriately inherent jurisdiction is related to
the courts function towards securing a just and respected process coming to a decision
and is not a factor which determines what order the court may make after due process has
been achieved. That is a function of the substantive law. The court always is charged
with holding the scales of justice. It is not within its task to add weights to the scales by
detracting from a right given by a substantive law or granting a right not given by the
substantive law:
Held: The exercise of the inherent jurisdiction was entirely within the discretion of the
court.
Statutory Provisions which gives Jurisdiction

SC is only appellate case

S24 of the Constitution: where a person is alleging the violation of rights he can apply
to the SC Granger (supra)
Conjwayo SC 1991 No. 17; 1991 (1) ZLR 105
In re Mulambo 1991 (2) ZLR 339

The case was referred to the SC in terms of s24(2) of the Constitution and it was referred
by a magistrate courts. The applicant was alleging 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. The applicant was arrested on the 3rd of October 1986 on suspicion of
theft by conversion. He was detained for two wks and later released on bail. He was
formerly charged on the 15th January 1987 and he was remanded on at least 12 occasions
between 2 August 1986 and 23 August 1987. On that date the charges where withdrawn
before plea. On the 28th of August 1990, 3 years later the applicant was served with
summons to appear in court to answer on the same charges (no longer fraud but theft by
conversion). The case was further postponed to 2 April 1991 because the applicant LP
had not been furnished with the relevant documents despite having requested then several
times in writings. He opposed in court on 2 April 1991 and applied for referral to the SC
in terms of s24(2) of the Constitution and it was denied. He appeared on the 3rd April
1991 on similar application which was granted.
Held: The applicants rights in terms of s18(2) for fair trial had been infringed and the
court ordered that the proceedings against the applicant should be permanently stayed.
Ephraim Mhlanga v the State SC 134/94
The applicant was charged in contravention of s3(1)(a) of the Prevention of Corruption
Act. He was convicted and sentenced to 30 months imprisonment with labour on which
10 months were suspended on conditions. He appealed to the SC against both the
sentence and conviction and on the appeal one of the arguments he raised is that his right
to legal representation in s18(3)(d) of the Constitution had been violated because the
magistrate refused to postpone the mater to enable him to seek legal representation of hi
sown choice.
Held: The Constitutional issue should have been raised with the court a quo (magistrates
court) or for referral to the SC. However the court noted that even if the issue has been
improperly raised it was without merit because the appellant was to blame for the
circumstances that gave rise to the denial of the postponement. Appeal was dismissed on
the merits.

S37A of the National Social Security Authority Act allows parties to present a special
case on issue of law before the SC.
In terms of S71 (1) of the Patents and Trademarks Act the patents tribunal can assume
the role of the SC in specified matters in terms of s19 (1) of the Liquor Act an
appeal against a decision of the Liquour Licensing Board goes to the Administrative
Court and not to the SC.
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 regards to application on the
use of public water and disputes regarding use of public water.
Rule 18 of HC prohibits issuing of summons against the judges of the HC, President
in his official capacity except with the leave of the court.

Common Law Limitations

Fugitives from justice have no audience in the court e.g a person who ran away from
legal obligations.
Subject matter outside the jurisdiction of Zimbabwean courts e.g immovable
property situated outside Zimbabwe. Go to the place and property is situated.
Revenue law is subject to bilateral agreements but revenue laws of another country
cannot be enforced in Zimbabwe.
Political law formed in other country.

PRINCIPLES OF COMMON LAW: JURISDICTION OF HC IS EXERCISED

(I)

actor sequitor forum rei: plaintiff follows the defendant to his or her forum (the
court with jurisdiction over that person). HC have jurisdiction over all persons
domiciled in Zimbabwe. Domicile is a place which a person regards as a
permanent home. If the person is resident in Zimbabwe the court has jurisdiction
live and have some interests in Zimbabwe.

(II)

Doctrine of submission : At common law a person who is neither resident or

domiciled in Zimbabwe can submit to jurisdiction.

(III)

Doctrine of effectiveness: this is where the court refuses to exercise jurisdiction

in certain instances if it views that their judgment will not be enforceable in
Zimbabwe (brutum fulmen empty noise avoided).

Specific Principles
(i)

Matrimonial claims in terms of both common law and statute.

At Common Law

Divorce, judicial separation and nullity of marriage.

(a)

Divorce: The court that has jurisdiction at common law is the court of the
matrimonial domicile at the time of institution of proceedings. It is the husbands
domicile. Le Mesurier v Le Mesurier & Ors 1895 AC 517. It was an appeal from
the SC of Silon. The appellant sued the defendant for divorce on the grounds of
her adultery with three respondents. The District Court in Silon granted the
divorce. The decision was reversed by the SC which intimated that the D. Court
had no jurisdiction to grant divorce. The marriage had been solemnized in
England. Both parties were not domiciled in Silon and non of the co-respondents
resided in Silon. As part of the divorce settlement the wife was entitled to
property which included some land not in Silon.
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 pg.
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 pleas 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 which 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. Pg 240. N.B Institution of proceedings
means time summons have been issued.
(b)

Judicial Separation
Three are three courts which can have jurisdiction
(i)
(ii)
(iii)

C.

either the court of the domicile or residence of the parties at the time of
institution of proceedings for judicial separation
the court of domicile of either party at the time of institution of
proceedings
the court of the area of the celebration of marriage.

Nullity (Degree of Nullity)

This depends on whether the marriage is void of voidable. With void marriage it
is invalid but through some occurrence it can be validated. There are four courts
which have jurisdiction:(i)
(ii)
(iii)
(iv)

court of area of celebration of a putative marriage

court of area of common domicile
court of the area of the plaintiffs domicile
court of the area of the defendants domicile

(Void Marriage)
Exparte Oxtorn 1948 (1) SA 1001 CPD
The applicant applied for leave to institute proceedings for decree of nullity by a
process called edicatal citation. The parties h ad been married in England in
1936. The applicant subsequently discovered that the respondent was married in
1929 which still subsisted. The applicant had emigrated to the Case SA in 1947.
Held: Despite the fact that the marriage had been contracted beyond the courts
jurisdiction (England) and the respondent had never been resident or domiciled in
Cape the court had jurisdiction by virtue of the applicants domicile.

Exporte Cathrall 1965 (2) SA 505 NPD Application to sue by edictal citation.
The applicant was born in England and she had married the respondent in 1963
and the parties separated two months later. She returned to England but the
responded remained in Australia. The respondent was a Zulu man born in SA
Durban who resided in Natal until February 1963 when he sailed to Australia as a
sea man and decided to stay there. The applicant had information 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 SA
irrespective of the fact that they had been allowed to stay in Australia.
N.B: Under common law, the law relating to voidable marriages is similar to that
common law relating to divorce. The court of the matrimonial domicile has
jurisdiction. Exparte Oxform (supra) pg 1014-1015.
30/03/04
S3 of the Matrimonial Causes Act 5:13 Act 33/85. It gives the HC 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:

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 desertion.
S3(1)(b) if the marriage was celebrated in Zimbabwe and the wife was resided in
Zimbabwe for a period of at least 2 years immediately before the date of
commencement of action and is still resident in Zimbabwe at the time of
commencement of action even if the husband has never domiciled in Zimbabwe.
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.
Read: Kennedy v Kennedy 1978 RLR 58
Braimah v Braimah HCH 66/96
Mandbaur v Mandbaur 1983 ZLR 26
Claims Sounding in Money (for payment of money). There are common law
principles and this depends on whether the party is an incola or a peregrinus. An
incola is a person who is either domiciled or resident within the courts jurisdiction.

A preregrinus is a person who is neither resident or domiciled in Zimbabwe or within

the courts jurisdiction.
(a) suing defendant who is preregrinus. Different principles apply whether the
plaintiff is an incola or a peregrinus.
Incola Plaintiff v Peregrine Defendant
They are three different circumstances in which the courts have jurisdiction at common
law.
(1)
(2)

If the defendant submits to the courts jurisdiction (doctrine of submission)

If it is the court within whose area of jurisdiction the cause of action arose. Cause
of action is not enough because of the doctrine of effectiveness. The court will
not hear the claim unless the peregrine defendant either had no property in
Zimbabwe which can be attached to confirm the jurisdiction of the court or the
peregrine defendant is in Zimbabwe and can be arrested to confirm the
jurisdiction.
Thermoradiant Oven Sales (Pty) Ltd v

1969 (2) SA 295 AD.

The plaintiff was incola and defendant peregrinus. The plaintiff purchased a
bakery oven form the defendant for R16 000. The oven was installed in the
plaintiffs bakery. The plaintiff had paid almost R13 000 upon delivery. The
balance of about R3000 would become payable after the oven had been tested and
found to be satisfactory. The oven was found not to be in accordance with the
warranties given. The plaintiff cancelled the contract and claimed damages of
R22000. The defendant denied liability and counter-claimed the outstanding
balance of R3000. The plaintiff applied to attach the defendants claim to found
jurisdiction. The plaintiff succeeded and the defendant appeared.
Held: It is established that an existing claim by the prospective peregrine
defendant against the prospective incola plaintiff is attachable to found
jurisdiction in the proposed action . However the plaintiff can not attach a claim
which it is denying cannot approbate and reprobate whether the value of the
property to be attached should bear some relationship to the claim.
Held: Decided that the property should confirm with the requirements of the
doctrine of effectiveness although it does not have to be sufficient to satisfy the
judgement which may be given in the case it must not be trifling value.
(3)

Where there is attachment of property or arrest of the peregrine to found and

create jurisdiction (Thermodiant (supra) 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 whilst on a flight over Tanganyika (Tanzania). The

plaintiff was incola and defendant peregrinus. The aircraft had been supplied by
the defendant. The crush was caused by the breakup of the air craft following the
fracture of a win which was caused by collision of a bolt hole. It was alleged that
the defendant had been negligent in that he had used an unplated bolt which was
susceptible to corrosion and yet did not make the bolt accessible to inspection nor
indicate that the inspection was necessary.
The plaintiffs claim was for 199.84 and the plaintiff sought to attach a debt owed
to defendant of 399. The plaintiff sought to attach to found jurisdiction. The court
discussed the relevant authorities of arrests and attachments to found jurisdiction
ad concluded that Roman-Dutch common law position is that an incola plaintiff
can attach the property of the peregrine defendant to found jurisdiction even
though there is no other ground to jurisdiction.
Peregrine Plaintiff v Peregrine Defendant
(i)

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

(ii)

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

(iii)

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

Facts: Application for leave to attach on asset in order to confirm jurisdiction. To found
jurisdiction was wrong because plaintiff was incola. The defendant was a preregrine
from Portuguese East Africa Durban. The property attached was a bull dozer engine
which was within the courts jurisdiction. The court confirmed the meaning of s15 which
states that no actual attachment is necessary unless there are special reasons. The court
gave examples where the plaintiff seeks actual attachment.
(1)
(2)

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

dispute in question so as to prevent its removal from other jurisdiction.
Where the property sought to be attached to found or confirm jurisdiction is the
only property that the peregrine defendant has within the jurisdiction and there is
a danger of its removal from its jurisdiction.

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

In this particular case a leave to attach property was granted because there was a danger it
might be removed.
S15 does not create a new ground for jurisdiciton for the HC in situations where
defendant is peregrine. Where neither the peregrine defendant nor his property is within
the jurisdiction of the HC then the court has no jurisdiciton.
See African Distillers Ltd v Zietkiewiz 1980 ZLR 135
Both the plaintiff and defendant were peregrin. It was an action for damages arising from
breach of contract and the parties were seeking to rely on s15. The court had no
jurisdiction because neither the property of the peregrines nor the person was unavailable
within the jurisdiction of Zimbabwe or attachment for arrest.
N.B An artificial person is a company incorporated in Zimbabwe is an incola or if it is
registered in Zimbabwe. All those incorporated outside Zimbabwe are peregrin.
Property Claims
In terms of immovable property the court that has jurisdiction in relation to a claim for
immovable property is the court within whose area of jurisdiction the property is situated.
Eilon v Eilon 1965 (1) SA 703 AD
In relation to movable property the situation is the same although it is still not clear
whether if the defendant if the defendant or peregrinus they should be attachment to
confirm jurisdiction This issue was discussed in the case of Voicemail Ltd vs Freighlink
Malawi 1987 (2) ZLR 22. Both parties were peregrine. The plaintiff had sold the
defendant a quantity of peas in Malawi for delivery to India via Harare and Beira. Half
of the peas were shipped to India in terms of the contract but while the other half were
still in Harare the defendant terminated the contract. The plaintiff applied to the HC for
leave to attach a consignment in Harare, confirm jurisdiction of the court, a claim for
specific performance. The HC decided against the plaintiff on the basis that the intended
action was a personal right rather than a real right. Alternatively the HC refused
application on the basis of the balance of convenience was in favour of the matter being
heard in Malawi than in Zimbabwe. On appeal the SC held that the HIC had jurisdiction
on the baiss of forum rei state (court of the place where the property was situated) and
this applies whether the right claimed in relation to a particular property is a real or
personal right.
Read: A critique of the above done by P. Nherere 1986 ZLR Vol. IV 173

PARTIES
(a)

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

minor is sued in the name of guardian or in their own name assisted by the
guardian. If they have no guardian seek an order that a curator ad litem be
appointed. The same applies when the interests of the guardian conflicts with
those of the minor child.
(b) mentally incapacitated: Any proceedings against them are instituted by a curator
ad litem.
(c) People declared insolvent: represented by the Trustee
(d) Woman married in community of property: husband institutes the action
(e) Prodigal: its a person who is financially irresponsible and is represented by a
curator bonis of ad litem.
(f) Alien enemies cannot sue its a person in a country in a declared state of war.
(g) Fugitives cannot sue
(h) MPs cannot be sued in terms of privileges of Immunities Powers Act.
(i) Diplomats: Privileges and Immunities Act only in cases of governmental nature
(j) President: s30 of the Constitution in his personal capacity. In his official capacity
he can be sued with the leave or permission of the court in terms of R18 of HC
rules.
Artificial Persons
(a)

(b)
(c)
(d)
(e)
(f)
(g)

Artificial person is a government (state) in terms of States Liabiities Act. A

responsible Minister or head of Department concerned is the defendant in terms of
S3. Cite the Minister by title and not by name e.g XV Minister of Lands in terms
of S3.
-Local authorities and municipalities e.g RDC
Statutory bodies e.g Universities
Parastatals e.g ZESA; ZWA
Companies incorporated under the Companies Act
Co-operatives incorporated under Cooperative Societies Act
Common law univeristas (e) body which is regarded by common law. There are
three (3) elements to be satisfied.
(i)

It must have an entity which is distinct and separate from its individual
members.

(iv)

It must have perpetual sucession a life which extents beyond the life of
its members

10

(v)

it is capable of owning property separately from its members.

See: Morrison v Standard Building Society 1932 AD 229.

The respondent was an incorporated building society which brought an action
against the appellant for ejectment from premises situated in Pretoria and for
damages. The appellant consented amongst other things that the defendant had no
locus standi. The argument was dismissed in the TPD.
Held: An association of individual does not always require the special function
of the state inorder to enable it to hold property or to use its corporate name
whether or not it can depend on the nature of the association, its constitution, its
objectives and activities. The court concluded that the standard for building
society have been formed in 1891 and these activities had not at any time been
interferred with. Also its possessed the characteristics of a universitas.
Unification Church of Zimbabwe v Kundiona & Ors HCH 94/93
The applicant was seeking to bring certain companies under judicial management
pending the removal of the respondent as directors of the companies. The
respondents raised a point in limine (in limine point raised at beginning of
proceedings) that the applicant had no locus standi. The applicant had been
registered in 1977 as a welfare organisation under the Welfare Organisation Act.
The Constitution of the applicant gave him among other powers to purchase and
acquire property both movable and immovable and to carry on business with a
view to increasing the revenue of the association and also to institute and defend
legal proceedings.
Held: The court found that although conformed to the requirement of common
law universitas, the application should be dismissed because the applicant had
not used the name to its constitution described as the Unified Family. The second
reason was that the deponent of the founding affidavit did not have authority to
depose to the affidavit as required by the Constitution.
Moloi v St John Apostolic Faith Mission 1954 (3) SA 940
PARTNERSHIPS

Generally they do not have locus standi as well as other voluntary associations which
do not meet the requirements of common law universitas. However Order 2A of HC
Rules gives some partnerships and associations the ability to be sued in their own
name although they are not separate from their members.

PARTIES locus standi

11

A person must have an interest in the matter to institute proceedings. It has been
described as direct and substantial interest and real interest.
Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2)
ZLR 48.
Facts
They were teachers who had been dismissed in terms of the Emerging Powers
Maintenance of Essential Services Regulations SI 160A/89. The Zimbabwe Teachers
Association sought an order seeking (reinforcement of) reinstatement of teachers.
Dismissed teachers were also part of it. The point in limine was that whether ZTA
had locus standi.

(ii)

whether the 3 dismissed teachers who sought to be involved in the proceedings

could be joined at that stage.

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

FORM OF PROCEEDINGS
There are two basic forms of proceedings which may be used for instituting proceedings
in the High Court (i) Application (ii) Action summons and (by way of notice of
application or affidavit) affidavit of evidence.
There are circumstances were application procedures are not used e.g in matrimonial
matters; claims for unliquidatd damages it means they are not yet been qualified by the
court and difficult to ascertain.
See Room Hire Co. v Jeppe Street Mansions 1949 (3) SA 1155

12

(iii)
(iv)

claim for provisional sentence ie. O4 Rule 20 specifically says it should be by

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

There are situations were required to use application procedures.

(1)

where directed by statute

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

If its a straight-forward money claim where you dont anticipate any opposition then
it is less expensive to use action and application procedure. Choose the less
expensive one because if you use the more expensive one you will be penalised with
costs.

Whether or not there is a material dispute of fact. If there is a material dispute of fact
then dont use application proceedings.
Room Hire Co. v Jeppe Street Mansion (supra)
This was an appeal from the decision of the WLD declaring the tenancy by the appellant
of certain premises belonging to the defendant to be null and void under the provisions of
s8 of Ordinance 46 of 1903. The grounds on which the tenancy was declared null and
void was that the premises were allegedly being used as a brothel. The court had also
ordered the ejectment of the appellant on the premises. The applicant has resisted the
application to eject him on three grounds:
(i)
(ii)
(iii)

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

Held: On the issue of waiver of breach the court held that the facts the respondent had
no t been aware of the payment and had tendered return of payment when he became
aware of it. It was stated the lease was automatically terminated when realised that the
premises were being used as a brothel.
Held: On material dispute of fact the court held that for the defendant to allege that there
was a material dispute of fact he must establish a real issue of fact which cannot be
satisfactory determined without the aid of oral evidence. He must not make a bare denial
or merely allege a dispute. The court concluded that the real dispute of fact had been
shown and that the court a quo should have hear oral evidence on the issue in terms of the

13

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

there was a genuine dispute of fact which could not be resolved on affidavit
evidence.
The Judge a quo should have directed oral evidence to be heard.

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

(application proceedings) as otherwise the effective functioning of the court can be harm
strung and circumvented by the most simple and blatant strategy. The court must not
hesitate to decide an issue of facts on affidavit merely because it may be difficult to do
so. Justice can be defeated or serious impeded and delayed by an over fastidious
approach to a dispute raised in affidavti. 154
See Joosab & Ors v Shah 1972 (4) SA 298

(i)
(ii)
(iii)

If the court discovered that there is a material dispute of fact and cannot be resolved
on affidavit, it has 3 options;
It can dismiss the application
The court can order the parties to go to trial in terms of O23 R159 of HC Rules
The court can hear oral evidence on the issue in dispute in terms of O23 R159.

DISMISSAL OF APPLICATION
The court does that if the applicant should have been aware that there was a material
dispute of fact which cannot be resolved on affidavit evidence. See Masukusa v National
Foods Ltd & Anor 1983 (1) ZLR 232. This was a claim by the applicant for damages for
wrongful dismissal. The 2nd respondent was the deputy messenger of court. The
applicant was claiming damages from the messenger of court because the messenger of
court had him arrested when he resisted service of process. The process to be served was
linked to the alleged misconduct which had resulted in the applicants dismissal.

14

Held: The matter could not be resolved on the affidavit. The issue was whether the court
should refer matter for trial or dismiss it. In this issue the court noted that the applicants
LP had been warned by the respondents LP on service of application that there was a
fundamental conflict of evidence. The applicants LP had disagreed and continued with
the proceedings. The court noted that the conflict of fact were glaring and obvious. The
court further noted that the claims for damages were clearly liquid and patently require
oral evidence.
The court also said the messenger of court should not have joined with the employer
because was a separate claim. In conclusion the court declined to exercise its discretion
to refer matter to trial or hear evidence and application was dismissed with costs.
(iv)
(v)

Refer matter to trial O23 R159

Chirinda v Chitepo and Anor SC 42/92

The appellant brought an application on the HC seeking cession and rights and interests
in immovable property in Chitungwiza which she said was sold to her by Gideon Chitepo
who was now deceased. The 1st defendant was the deceased heir, 2nd respondent was the
Chitungwiza Town Council. The appellant alleged that the deceased and herself had
entered into an agreement for the cession of the deceased rights and interests in the
property in May 1985. The appellant was to pay $1 200. The appellant alleged that she
paid the instalment of $600 in May 1985 and the balance in March 1986. She alleged
that the appellant and the deceased were unable to sign the papers at Chitungwiza Town
Council because the deceased was employed in Kadoma and constantly visited his rural
home in Nyanga. The deceased had died on the 12th March 1989. There were several
dispute of fact the major being whether the signature on the agreement of cession was
that of the deceased. The other dispute was whether the first respondent was cited as
Washington Chitepo but the actual name was Booker Chitepo. The third dispute was that
the appellant had alleged that the deceased had died from injuries involved in a car
accident but it was alleged that he died of natural disease and produced death certificate
as evidence.
The court held that fact one died a natural death and of the names was immaterial. On
issues of signatures, it was alleged that the first defendant was privy to the negotiation.
The court had dismissed application had differed substantially with the one on the
deceased drivers licence. On appeal the court said that the dispute should have been
referred to trial and it gave two reasons
(i)
They were other documents purportedly signed by the deceased which had
different signatures i.e marriage certificate, agreement of sale entered into
between the deceased and Chitungwiza Town Council.
(ii)
The daughters of the deceased who were witnesses to the agreement of cession
alleged that they had one so under duress.
The court held that these matters should only be investigated at trial. The appeal was
allowed.
See Dulys Pvt Ltd v Brown SC 172/1993

15

See Jongani v Kadenhe SC 24/92

(iii)

Oral Evidence on the dispute should be heard )23 R159.

The court should not order the hearing of oral evidence if that order would have
the effect of converting the application proceedings into a trial. Option will
therefore be to refer the matter to trial.
Bhura v Lalla 1974 (2) SA 336.
It was an appeal from an order of HC setting aside a sale in execution. The
applicants father who was deceased had left the immovable property in trust of
his sons. The respondent was one of the administrators and executors of the
estate. The administrators had been found guilty of maladministration and
removed from the office as executors by the master of the HC. However they had
remained as administrators. During their administration the estate incurred
certain debts and certain creditors took judgment against the estate amounting to
15 000. There were no liquid assets in the estate although this could have been
created if the HC had been approached for permission to mortgage the movable
property. The administrators were unwilling to seek permission from the HC
because it will expose the fact that they had dissipated the liquid assets of the
estate. The executors appointed after removal of administrators misunderstood
their powers and thought that they could not act without the cooperation of
administrators. As a result of their inaction the immovable property was sold in
execution for $1000. The applicant applied for set aside of the sale on the basis
that the price was unreasonably law sum. The judge in the HC was unable to
resolve the issue on affidavit and adjourned the matter t permit oral evidence and
the subsequent hearing took a form of a trial. The judge declared that the
respondent had not proved that the price was unreasonable although there was a
possibility that the property was worth more. He proceeded setting aside sale in
that the property was not supposed to be sold for a period of 10 years in terms of
the will and that the executors had failed in their duties in failing to mortgage the
property and that the interest of the beneficiaries of the will who was minor was
involved.
Held on appeal: On the question of procedure the court held that the matter
should have been referred to trial. Rule 159 on hearing of oral evidence on
application proceedings are not intended to convert the proceedings into a trial.
On the merits the appeal was dismissed because the court agreed that that interests
of the minor should not be compromised. It also noted that the HC is the upper
guardian of all minors and has a duty to protect the rights of minors.
Read Barklie v Bridle 1955 SR 350
Masango v Masango HH 324/84
Shana v Shana 1990 (2) ZLR 129
Zimbabwe Bonded Fibre Glass Pvt Ltd v Peech 1987 (2) ZLR 338

16

13/04/04

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

Where a demand is required to complete the cause of action. Examples are by

statute i.e the State Liabilities Act 60 days notice is required when suing the
state (b) by agreement between the parties (c) where a demand is required to place
the debtor in mora.

Pleading of a Demand

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

(i)

it should need not be in writing unless stipulated by statute or by agreement

between the parties.

(ii)

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

(iii)

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

(iv)

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

(v)

It is not necessary to threaten legal action.

Summons O3 R9-12, 14-16, 19 of HC Rules

The form to use in the summons is Form No. 2 but there is special summons used in
matrimonial proceedings i.e divorce, separation, Form 30A.

R10 the summons must call upon the dependant to enter appearance to defend if in
he intends to oppose a plaintiffs claim. The appearance to defend must be entered at
the registry specified in the summons. For purposes of civil case the HC has two

17

Registry offices in Harare and Bulawayo. The summons will also require the sheriff
or his deputy to serve a copy of the summons on the defendant and make a return of
service.
The Contents of the Summons

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

The summons should give the defendant time upon which to enter appearance to
defendant (dies induciae) and its 10 days in HC Rule 17. It excludes holidays and
weekends O1 R4A .

If your claim is for a debt or liquidated demand you can endorse the particulars of
claim on the summons. You dont have to file a declaration.

What is a claim for a debt or liquidated demand?

This is a claim for either a specific amount of money or one that is capable of speedy
and prompt assessment, claim of a specific thing.
Case: Fred & Anor v Keelan 1951 SR 7
A claim for an order declaring property specially hyphothecated in a mortgage
bond to be executable (sold in execution). The claim was held to be a claim for a
liquidated demand.
Mohr v Krier 1953 (3) SA 600
The plaintiff was claiming several things:
(i)
the sum of 1300 pounds being the balance of amount due in terms of a
deed of dissolution of partnership entered into between the plaintiff and
the defendant
ii

(ii)

an order compelling the defendant to complete and deliver to the

iii plaintiff a promissory note in the plaintiffs favour for the sum of 1000
pounds in terms of deed of dissolution of the partnerships.

(iii)

an order compelling the defendant to complete and deliver to the plaintiff

a stop order addressed to Tobacco Auctions Ltd authorising the plaintiff to
claim 1000 pounds from the proceeds of the sale of the tobacco for the
1952-53 season.

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

18

Held: on the first claim it was held to be a claim of a debt or liquidated demand
because it was a fixed amount of money, certain.
Held: On 2nd and 3rd claims it was said although claims for debt or liquidated
demand they were also claims for specific performance and failure to comply with
these claims will be punishable by contempt of court as no official could be
substituted for the defendant. For that reason the claim should not have been
made on the endorsed summons.
SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2) SA 131. The
plaintiff applied for default judgement on an endorsed summons in which he
claimed
(i)
a statement of account duly supported by vouchers of all premiums
received by the defendant
(ii)

the rebate of such account (an assessment of item so as to come to a

determination of an amount owing).

(iii)

payment of money owing to the account.

(iv)

order directing defendant to disclose all forms of policies in his

iv possession issued by the plaintiff and delivered to the defendant.

Held: All of them were claims for a debt or liquidated demand except a claim of
whatever was found owing under the account because it was not fixed.
Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498. A claim for money
stolen by the defendant from plaintiff was held to be a claim for debt or liquidated
demand but the claim for the value of goods stolen by the defendant was held to
be unliquidated.
See International Hardwork Cooperation 1971 (1) SA 404
Reached the same decision that claim for stolen money is a liquidated demand
and a debt.
Standwin Investment Pvt (Ltd) v Helfer 1961 (4) SA 470.
A claim for the value of goods as an alternative to the return of the goods was
held to be a claim for a debt or liquidated demand. The case involved a claim for
the return of a truck failing of which payment of 500 pounds which was the value
of the truck.
An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956 RN
148.

19

Fartis Engineering Co. Ltd v Vendick Spares Ltd 1962 SA (2) 736 TPD. A claim
for work done and material supplied was held to be a claim for a debt or
liquidated demand. The same conclusion was reached in International Harvestor
v Ferreira 1975 (3) SA 831 CPD.
Belingwe Stores (Pvt) Ltd v Minyembe 1972 (4) SA 463. A claim for the value of
shortfall of stock as per a written undertaking by the defendant was held to be a
claim for a debt or liquidated demand. The defendant was storekeeper for the
plaintiff and signed an undertaking to pay if there is a shortfall.
Brooks & Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA.
A claim for confirmation of cancellation of an agreement of sale of certain
immovable property and ejectment of defendant from property was held to be a
debt or liquidated demand.
Atlas Assurance Co. Ltd v Goodman 1955 SR 328. A claim based on a foreign
judgement held to be a claim for a debt or liquidated demand.
Morris v Stern, 1969 RLR 427. A claim for ejectment was held to be a claim for a
debt or liquidated demand.
Dube v Sengwayo HHC 110/91.
A claim for holding over damages in respect of ejectment proceedings was held to
be a claim for a debt or liquidated demand because the damages were easily
ascertainable, simply look at rental value of the property and also the period of
which the lessee is an unlawful occupation.
Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 11.92.
A claim for the refund of $14 700 due to the defendants failure to supply 60 000
bricks. This claim was held not be for damages readily ascertainable and
therefore liquidated.
Midsec (Pvt) Ltd vs Ors v Standage HB 64/94. The claim was for
$100 000 payment based on a document which had been signed by the defendant
in which she had admitted that she had been fiddling the books and stated as
follows on the amount owed I would not know the exact amount that I would
have taken but Mr Rumbold has said that if it is close on to 100 000 which could
be about right The claim was held to be unliquidated because the amount owing
was not ascertained but merely estimated.
Declaration

Its a statement of the plaintiffs claim. It must set out the nature, extent and
grounds of the cause of action, relief claimed. )17 R109, 110.

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

20

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

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

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

Service S20 (1) HC Act.

All summons of the HC has to be served by the sheriff or his property or

assistant deputy.

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

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

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

Case: Wattle Co. (Pty) Ltd vs Inducon (Pvt) Ltd 1993 (2) ZLR 108 H
On the 8th of April of 1993 on order was granted by the HC compelling the
defendant to file and serve its discovery affidavit within 5 days of the service of
the order. Failing which the plaintiff would be allowed to apply to have the
defence struck out and default judgment granted. The order was served on the
defendant legal practitioner by a Clerk in the employ of Plaintiffs Legal
Practitioners. He was in default and the plaintiff applied for default judgment.
Held: The service of the order by the clerk was not due and proper service
because it contravened S20 (1) of the HC Act which provides that service should
be by the Sheriff or his deputy or assistant of the sheriff.
There are special rules of service in process on proceedings against the state. S5
of State Liabilities Act
O5A R43 A 43D

21

Substituted service: were service cannot be effected in any ways stipulated by the
rules you can apply for substituted service to a judge of the HC. It should state
the facts on which the cause of action is based, reason why service cant be
effected in any of the ways provided by the rules; sufficient relevant facts
indicating manner in which service will be effected.
Becker McComick (Pvt) Ltd v Gvt of Kenya 1983 (2) ZLR 72
The City of Hre v Mudzingwa & Ors HH 200/91
City of Harare sought an eviction order for 194 squatters from its land. It applied
for substituted service in the form of an order to allow sufficient copies to be
served on one of the squatters as representative of the others. Only 24 copies of
the process were served on the representative squatter.
Held: since the identities of 193 other squatters were known to the applicant 24
copies were inadequate and did not represent a proper compliance with the order.
Equity demanded that each squatter should have bee furnished with his own copy
of the documents.
Service outside jurisdiction: There are two rules R45 deals with service in
SA, Namibia, Lesotho, Swaziland or Botswana serviced by sheriff or deputy
sheriff of the country or province in which the defendant is residing. If the person
serving is a deputy or under sheriff there should be a certificate from the sheriff
that the person was indeed appointed.
In other cases follow R44 that is seeking leave of the court or judge seeking
permission to serve outside the country. The court would order the manner of
service. In an application make the following information:
(i)
(ii)
(iii)
(iv)

facts in which cause of action is based

grounds which the court has jurisdiction in entertaining the claim
proposed manner of service
last known whereabouts of the person to be served. Give details on what
enquiries you have made to ascertain the whereabouts i.e gazetting.

16/04/04
CONSENT TO JUDGEMENT

(a)

R53 the Defendant can consent to judgment at any time after service of summons
except in
in matters affecting status e.g matrimonial matters
The consent to judgment has to be in writing and signed by the defendant personally
or by his/her legal practitioner.

22

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

It can be verified that the signature of the Legal Practitioner acting for the defendant.

The requirements of R54 are compulsory. If not followed the consent is invalid.
Washaya v Washaya 1989 (2) ZLR 195. The terms of an apparent settlement were
dictated in open court by the council for the applicant with the agreement of the
respondents counsel. Judgement by consent was entered in terms of apparent
settlement. It later turned out that the counsel for the respondent had no authority to
settle the matter. He had simply presumed that his client would ratify his action.
Held: When the client applied for rescission of the judgement the court held that the
consent was not binding on the client because the provisions of R54 were not
followed. The judgement was rescinded and the costs de bonis propis were awarded
to Legal Practitioner who had consented to judgement without the clients authority.
If the consent is filed in a proper form, then judgement by consent will be met
through the chamber application R55. R56 gives the court authority to set aside a
judgment given by consent and its own good and cause shown.
Default Judgment
If the claim is a debt or liquidated demand and there is no appearance to defend has
been entered the plaintiff can make a chamber application for the judgement R.57.
If the claim is not for a debt or liquidated demand then the procedure if there is
default to appearance, the procedure is set out in R58. The plaintiff must file and
serve her declaration that has not yet been done. If the defendant remains in default
after service of the declaration then the plaintiff may proceed to make a court
application for default judgment by setting the matter down for hearing in terms of
R223(1). The court will then consider the matter except that where its a claim for
damages the court will require evidence as to the quantum of damages. R60. The
evidence to be quantumed can be by way of an affidavit and not oral evidence. The
affidavit should be filed within a specified time limit as follows:(i) if the matter is set down for hearing in Harare then the affidavit must be filed by
10.00 am on the Friday immediately preceding the Wednesday on which the case
is set down for hearing. Unopposed applications are heard on Wednesday in
Harare.
(ii) if in Byo then the affidavit must be filed by 10.00 am on Wednesday immediately
preceding the Friday on which the case is set down for hearing.
See Knight NO v Harris (1962 (2) SA 317 (SR). The plaintiff issued summons
against the defendant claiming 6000 pounds for damages suffered as a result of

23

the negligence of the defendant. The damages arose from the damage to the
plaintiffs car as a result of a collision of the defendants car. The summons and
declaration were served by affixing copies to the principal door of the defendants
residence. There was no appearance to defend by the defendant so the plaintiff set
the matter down for judgement. The plaintiff made evidence regarding the
quantum of damages but gave no evidence in relation to the issue of liability
(cause of action). The question raised was whether it was proper for the court to
grant judgement without hearing any evidence substantiating the cause of action.
Held: The predecessor to current R60 does not suggest that the court should dispense
with the hearing of evidence on the cause of action. It would ordinarily be unwise
for a court to do so where the action is for damages arising out of a motor
accident because of the possible existence of complex issues of whether or not
there was contributory negligence.
N.B. The predecessor of R60 stated that the court may dispense with evidence
without specifying what evidence may be dispensed with. The current R60 states
that the court may grant judgment or make an order without hearing evidence
except in cases for damages in which case only evidence is to quantum of
damages (-issues of liability not provided).
Dunlop v West 1974 (2) SA 642
The plaintiff a minor sued assisted by father. Plaintiff was suing a defendant minor
assisted by father for damages of $60 000. The claim arose from injuries
sustained in a car accident. The plaintiff was a passenger in a car driven by the
defendant. The car veered off the road and collided with two trees. The plaintiff
was reduced to a human cabbage seriously injured. The defendant entered
appearance to defend and defaulted at trial. The issue was that the plaintiff led
evidence on quantum and sought judgment without addressing issues of liability.
Held: Under the rules as they were at that time the court had no discretion to dispense
with evidence as to liability (res ipsa loquitor was it as a result of negligence).
It was held it was not because there was other evidence on what actually
happened. There was a young girl a passenger in the court who had not been
called. It was held that the court must hear evidence as to liability and the case
was postponed to give required evidence.
In situations where there is default of plea the plaintiff must first of all bar the
defendant due to a procedure called barring after giving notice of intention to
bar. Once the defendant has been barred then the procedure is the same as for
R59 set down.
If the defendant is in default at trial in terms of R59A the court may proceed to grant
default judgment without hearing any evidence at all if its a claim not for
damages if its for damages it will hear evidence on issue of quantum R60. If the
plaintiff is in default, the plaintiffs claim will be dismissed in terms of R61. In
terms of R62 the court may actually absolve the defendant.

24

Case Hayes v Bladachin & Ord 1980 ZLR 11

The plaintiff brought an action against the defendant claiming damages for
deformation. The claim arose from a confidential report which the defendants had
prepared. The plaintiff claimed that the report was malicious and inaccurate. The
defendant denied these allegations and claimed that the report was covered by
qualified privilege. Before trial the Secretary for Justice issued a certificate
directing that the trial be held in camera. The plaintiff objected to the trial being
held in camera and sought postponement to enable him to appeal to the governor.
The matter was postponed 3 times to enable him to do so but failed to. After the
3rd request for postponement was refused the plaintiff withdrew from the case.
The defendant proceeded to lead evidence rebutting the claim.
Held: In light of the evidence led by the defendant, judgment on the merits should be
given for the defendants rather than merely dismissing the claim in terms of R62
(which is judgment absolution from the instance).
Held: Cot of an attorney client scale should be awarded agaisnt the plaintiff because
his contact contentious to the court and his action had been vexatious and actually
an abuse of the courts process.
Defendant default at trial.
See: Mpehlani v Expert Panel Beaters & Spray Painters (Pvt) Ltd 1993 (2) ZLR
212 (SC)
The plaintiff claimed damages from the defendant for negligent repairs to the car.
The defendant entered appearance to defend and filed a plea in which he denied
negligence and defaulted at trial. Counsel for the plaintiff led evidence on
quantum of damages and not on liability despite the trial judges indication that
this is necessary as per the case of Dunlop v West supra). The trial court
dismissed the claim and the plaintiff appealed to the SC. The SC held that
negligence was put in issue by the defendants plea and therefore had to be
proved. The appeal was dismissed.
Everything said on default judgment does not apply to divorce, judicial separation, and
nullity of marriage and restoration of conjugal rights. If you have matrimonial claim and
there is no appearance to defend what one does depends on the type of summons used
either ordinary or special summons.
Where special summons Form 30A are used you simply set the matter and the matter is to
be heard on the date specified in the summons without any reference to the defendant.
If you use ordinary summons one is required to take the following steps:(i)
file and serve your declaration if you have not already done so.
(ii)
if there is still no response do a notice to plead in terms of R27 2(1)(a).
(iii)
The notice of trial if there is no response to notice to plead. This is the notice that
you are setting the matter down for hearing. The notice will contain the actual

25

date which the matter is to be heard. The notice must be served personally on the
defendant. Apply for substituted service if you cant do so.
See Le Roux v Le Roux 1957 R& N 831 SR
The plaintiff sued the defendant for a final order of divorce. The defendant was in
default. The plaintiff was unable to effect personal service of the notice of trial because
the defendant moved from place to place. The plaintiff sought to testify that she had seen
the defendant and informed him of the date of set down.
Held: The plaintiffs evidence could not substitute proper service of the notice of set
down because she was an interested party and she had been informed in a casual manner.
The matter was postponed indefinitely sine die to allow proper service.
The notice of plead and of trial can be served together in a combined document called
notice to plead or trial.
If you want for proceedings to be quicker the defendant can waive the time limit required
for filing the documents.
Issues relevant either using general and special summons.
(a)

Consent Paper parties should agree on the ancilliary issues i.e maintenance,
property sharing. The consent paper must be filed together with the papers for the
hearing of the divorce and it will be incorporated into the court order.
N.B One cant consent to divorce.

(b)

Service of papers on a person named to have committed adultery. O35 R273 (1),
(2)
See Cloete v Cloete 1951 SR 121
The plaintiff sought divorce against the defendant on the grounds of adultery. The
person in whom the defendant was not cited as co-defendant but mentioned by
name in the declaration.
Held: The declaration and summons should have been served on the named
person to give him an opportunity of appearing for the court and clearing his
name.
See: De Salis v De Salis 1957 R & N 663
The plaintiff sued the defendant for divorce on the grounds of adultery and
cruelty. The defendant entered appearance to defend and counter claimed for
divorce on the grounds of cruelty. The defendant subsequently withdrew the
defence and counter-claimed. The plaintiff declaration alleged that the defendant
had committed adultery with one H.
Held: The declaration was not served on H therefore plaintiff would not proceed
to have the matter heard. However evidence given of improper association of
plaintiff with 3 men was held to constitute cruelty. Divorce was therefore granted
on the grounds of cruelty.

26

The person who is named for adultery can actually waive not have papers served
on her.
See Mayhew v Mayhew (1972) RLR 55.
The plaintiff brought an action for divorce in which he sought condonation of his
own adultery with a named woman. The woman had supplied an affidavit in
which she admitted that she had committed adultery with the plaintiff and stated
that the plaintiff intended to marry her and she waived her rights to service of the
relevant documents. The waiver was accepted.
See Kettle v Kettle 1972 (2) RLR 130
(c)

Uncontested matters
Draft order type of order you want the court to order. If the court agrees with it,
it grants order in terms of the draft.

(c)

Affidavit of Evidence: R277B allows the plaintiff to give their evidence in the
sum of an affidavit. There is a time limit to file affidavit.
(i)
if matter set down in Harare file at 10.00 am on a Friday immediately
preceding the Wednesday in which the matter is to be heard.
(ii)
Byo file at 10.00 am on Wednesday immediately preceding Friday in
which the matter is to be heard.
The affidavit must be accompanied by the following documents:
Marriage certificate
Consent paper if any.
The court may still insist that he plaintiff give oral evidence and the court may
postpone the matter.

APPEARANCE TO DEFEND
07 R48-49
The form used is form No. 8
The appearance to defend is entered by the defendant personally or through his/her legal
practitioner. The appearance to defend must contain the title (heading i.e in HC of Zim),
no of action (case no); address for service which should be within the radius of 5km f the
court of registry, postal address of the defendant, date of entry of appearance to defend
(Dated at .); signed by the L.P or by the defendant himself.
Once the appearance is taken to the registrar, it must be served to the plaintiff and
according to R49. It must be served within 24 hours of entering of appearance to defend.
Failure to enter appearance in terms of R50 be deemed to be barred (automatically
barred). However the automatic bar does not apply where there is a defective
appearance to defend.
The court decided on the authority of Herbstein & Van Winsen 3rd ed pg 242 and the
case cited therein that the irregular appearance to defend did not entitle the plaintiff to a

27

default judgment. The proper remedy had been to postpone the matter inorder to allow
the defendant to serve the appearance to defend to the plaintiff . The plaintiff had to pay
for these added costs.
Held failure to enter appearance to defend does not result in automatic barring if there is
defective appearance.
R52 deals with withdrawal of the action by the plaintiff after appearance to defend.
According t R52(1) the defendant shall be entitled to his or her taxed costs and also the
undertaking to pay such costs should be incorporated in the notice of withdrawal. This
sub-rule does not apply if the action is being withdrawn with the defendants written
consent. Where there is an undertaking to pay the taxed costs and they are not paid
within 12 days of demand by the defendant, according to R52(2) the defendant may
continue to make chamber application for judgement for the taxed costs.
PLEA ORDER 18
Ordinary Plea
A plea is a defendants answer to the plaintiffs declaration/particulars of claim. The plea
must set out the defendants defence and it must deal with the allegations of facts made in
the declaration or summons. The defendant either admits allegations or deny it or confess
and avoid.
A confession and avoidance is when the defendant admits admission by alleging further
facts which justifies the admitted facts or makes him not liable. Where there is an
admission the defendant is bound by that and it cannot be withdrawn except with the
leave and permission of the court. If the defendant seeks withdrawal of the admission the
court will require evidence of the circumstances in which it came to be made.
DD Transport Transport Pvt Ltd v Abbort 1998 (2) ZLR 92
The general rule is that every allegation of fact not specifically dealt with by the
defendant in his plea is taken to have been admitted together with the implied allegation
of fact which arise from that allegation.
Huntly-Silburn v Levien 1937 TPD 199
Exception in this rule is in a damage claim. In a damages claim it is not necessary to
deny the damages claimed or their amount. According to R117 the damages shall always
be an issue unless expressly admitted.
Where a defendant is raising several grounds of defence which 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 necessary thus incurring extra-costs and the court is of
the view tat the fact denied should have been admitted then the defendant may have to
pay extra costs R118.

28

The plea must be filed within ten (10) days of the service of the plaintiffs declarations
R119 where the plaintiff serve his declaration together with the summons on the time is
10 days is given to file plea.
Special Plea
Special plea is a plea that does not raise a defence on the 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).
Difference between special plea and an exception 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 declarations or summons. With a special plea the defence
raised may be established by evidence outside the declaration the counter-claim.
Two categories of special plea are:
(a)
dilatory to delay the proceedings until some temporary bar to the claim has been
removed.
(b)
Declinatory to quash or put an end to the proceedings.
N.B The other name for dilatory plea is plea in abatement.
Declinatory plea in bar
Declinatory Plea (in bar)
(i)
Plea of res judicata same matter have been decided in another court of
competent jurisdiction.
(iii)
Prescription the matter is cut of time claim can no longer be brought because
lapse of time Prescription Act 8:07.
N.B There is no prescription under customary law.
General claims

3 years
Loans from state

6 years
Road Traffic Act

2 years to sue insurer

Police Act
8 mnths
(iii)

Lack of jurisdiction.

Read Mvami Pvt Ltd v Standard Finance Ltd 1976 (2) RLR 257
Owen Smith v Owen SmithB 1981 ZLR 514
Flood v Taylor 19978 RLR 230.
Dilatory Plea
(i)
lis alibi pendens some matter is pending in another court.
(ii)
No locus standi - person who has instituted proceedings has no capacity to sue
Read: Edwards v Woodnutt N.O 1968 (4) SA 124
ACTUAL PROCEDURE for filing Pleas

29

R137 (1)(a) plea in bar or abatement

R137(2) provides that the plea shall be in the appropriate Form No. 12 and you file it
with the registrar and serve a copy on the other side R138.
Exceptions
Either party can except to the other partys claim or defence. It its an exception to the
plaintiffs claim it will be on the basis that the claim does not disclose cause of action or
its 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 its so
vague and embarassing that the plaintiff does not know what the defendants 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.
(i)
an essential element of the claim or defence has been omitted. The question of
what is essential element is a matter of substantive law i.e negligence, vicarious liability.
(ii)
where it raises a cause of action or defence which is unacceptable at law.
Read: Lane v Eagle Holdings (Pvt) ltd SC 126/85
It was an appeal from magistrates court. The plaintiff had claimed payment of $2000
being the balance of the bonus which defendant agreed to pay the plaintiff in respect of
services rendered as managing director of a subsidiary company of the defendant. The
defendant excepted to the plaintiffs claim on the basis that the agreement to pay the
bonus contravenes Emergency Powers (Control of Salary and Wage Increases)
Regulations of 1981 and was therefore illegal and enforceable. The exception was
granted in the magistrates court and the defendant appealed in the SC.
Held on appeal that it was not apparent from the plaintiffs summons that the bonus
claimed represented an increase of the plaintiffs earnings and that the increase in earning
was of such a magnitude as to offend against the regulations. For that reason the
summons was not excepiable and the appeal was allowed with costs what excepted
must appear on the documents.
When a plea is vague and embarassing it means that it is such that the plaintiff or
defendant cant 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 embarassment to
the other party the remedy is to apply to strike out or to seek further particulars.
Read: Salzman v Holmes 1914 AD 152
The plaintiffs declaration contained several allegations that the defendant had uttered
defamatory words of the plaintiff. Para. 7 of the declaration read: on or about the 25th of
January 1909 at B aforesaid the defendant in the hearing and presence of and speaking to
30

one Herbert G King of and concerning the plaintiff and complaining to the said Herbert G
King of plaintiffs conduct towards him made use of false, malicious, slanderous words;
there pointing a sport on the band of Kafir river, I was pulled off my horse and was
nearly killed (meaning by plaintiff) and there a native woman was murdered (by plaintiff)
and my man Holstein was told that his grave was already dark for you (by plaintiff) if he
crossed the river.
The defendant denied para. 7 in his plea but he went on to plead as follows: with further
reference to para. 7 of the declaration the defendant admits that he did on or about the
time mentioned in the presence and hearing of plaintiff make use of the said Herbert G
King of words more or less as alleged but said that the said words do not give the whole
of the conservation nor its clear and true meaning. The defendant continued in h is plea
that in speaking as stated the defendant merely referred to the unpleasant associations
connected with the place and its immediate vicinity in consequence of what had
transpired that day and neither intended nor did infer or impute anything to plaintiff as
alleged. The plaintiff excepted to the part of defendant pleas as uncertain, obscure, vague
and embarrassing. The court a quo was of the view that the plaintiff should have
proceeded by way of applying to strike out that portion of plea and order that it be struck
out. The defendant appealed.
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 ruels in that the
defendant did not admit, deny or confess and avoid anything. The court went on to say
the words more or less might mean anything and defendant should have explained
unpleasant circumstances referred to in his plea.
Judge of Appeal Innes gave his view of the distinction between exception and application
to strike out:
The distinction between exception and application to strike out is clear. An exception
goes to the root of the entire claim or defence as a case maybe. The expient alleges that
the pleading objected to taken as it stand is legally invalid for its purpose. Whereas
individual sections which 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 expinge application to strike
out.
According to Innes C J the offending paragraphs if intended to be part of plea of denial
they were speculous and if meant for special defence were insufficient. The conclusion
was that these either be excepted or struck out.
Appeal was dismissed.
Procedure for excepting
O21 R137 (1)(b)
Form No. 12 is used.
Application to strike out

31

O21 R137 (1) (c)

R141 what should be struck out is any matter which is argumentative, irrelevant matter.
Read Green v Latz 1966 RLR 633
Superflous material can be struck out, vague and embarrassing material where it does not
go to the root of the cause of action or defence; inconsistent of contradicting matter, any
matter which tends to prejudice or embarrass the other party any matter which tends to
delay the trial of the action R141(a).
Purpose of applications to strike out is to have the matter struck out so as to clarify the
pleading so that it properly reflects the case which the plaintiff or defendant has to
answer.
Form 12 is used for procedure to apply to strike out.
Read Tekere v Zim Papers (Pvt) Ltd 275 1986 (1) ZLR 275
Its a defendants claim against the plaintiff )18.
The claim in reconvention does not necessarily have to arise out of the same facts as the
plaintiff claim. The rules of the claim in re-convention are the same as the declaration
mutatis mutandis R121(2). The defendant can also incorporate allegations of facts
contained in the plea or declaration into his claim in re-convention R122.
Claim in reconvention must be bound together filed together with the defendants plea
R121(1). If the plantiffs action is stayed, discontinued or dismissed the defendant may
still proceed with the claim in reconvention R123. Normally judgement on the claim in
reconvention and on the plaintiffs claim must be pronounced at the same time R120(1).
The reason is that in terms of facilitating execution the two judgments can be set off.
Where (the judgment) the claims can be set off the court can incorporate the set off in the
judgement R120(2).
In appropriate circumstances provided good cause shown it would be necessary for the
plaintiffs claim and the claim in reconvention to be tried separately R124. This apply
when the two claims are totally unrelated. The court could actually suspend the
execution of the first judgment to be granted pending the outcome of another matter.
See Van der Berg and Partners Ltd v LC Robinson and Co. Ltd 1952 SR 148
REPLICATION O19
A replication is not compulsory. It is where the defendant raised new facts in his plea. A
replication will be required where the defendants plea is one of confession and
avoidance. R126.
If it is to be filed must be filed within 12 days of the date of service of the plea R125. If
the plaintiff does not intend to file a replication he can deliver a letter to the defendant
notifying him that he does not wish to file replication and he is joining issue with the
defendant. It should be delivered within 12 days of the service of the plea R130.

32

Plaintiffs plea to the Defendants claim in reconvention The plaintiff follow the same
rules as in defendant claim in reconvention R127.
A defendants replication to the plaintiffs plea to the defendants claim in reconvention.
That follows the same rules as the plaintiffs replication.
REJOINDER
The defendant may choose to file a response to the plaintiffs replication and its the
rejoinder. It should be filed within 12 days of the service if the replication R129. If the
replication raises new facts which have not been raised in previous pleadings there is
need to rejoinder.
CLOSURE OF PLEADINGS O16
O16
Pleadings can be closed prematurely when the party is barred. R107A
Pleadings are also closed if either of the party joined issues and which any pleading of the
opposite party without adding any further or special pleading to it.
A defendant can also join issue after receiving the plaintiffs replication because we may
not wish to file a rejoinder. Pleadings can also be closed if there is a written agreement
signed by the LPs of both parties indicating that the pleadingsl should be considered as
closed. The agreement will be filed with the registrar R107(c).
N.B If none of the circumstances apply and the parties consider that the pleadings be
disclosed then the parties should make chamber application for an order declaring that the
pleadings have been closed R108. The judge will make an order as the deem fit.
Significance of Closure of Pleadings
Parties cannot proceed to the discovery of documents without of pleadings R160. In
special circumstances you have leave of the judge to proceed discovery of documents
without of documents R160.
The parties cannot proceed to pre-trial conference before closure of pleadings R182. The
parties cant proceed to set the matter down for trial without closure R214.
In terms of the law closure of pleadings means that the claim can now be transmitted to
the heir of the plaintiff in the event that the plaintiff dies after the closure of pleadings
and provided that the claim is not personal to the plaintiff i.e claim for divorce. The
parties rights are regarded as frozen (litis contestatio).
See Jankowiak & Anor v Parity Insurance Co. 1963 (2) SA 286
The plaintiffs were husband and wife and had been injured in a collision between a motor
vehicle driven by the wife by the one driven by Forest. They instituted proceedings

33

against Forests insurer. The parties joined issue on the 2nd of June 1962. The husband
died on the 4th of June 1962. The wife was the executrix of the husbands estate. She
applied to be substituted for the husband in relation to the husbands claim. The
defendant agreed to the substitution in relation to specific damages i.e medical expenses,
hospital expenses and loss of earnings and not in relation to general damages which were
for pain and suffering because claim was personal to the deceased and therefore not
transmissible to the estate. The parties brought the issue to court for determination.
Held: The claim for general damages was transmittable to the estate of the deceased. It
stated that closure of pleadings results in litis contestatio which is freezing of the parties
rights.
DISCOVERY OF DOCUMENTS O24
O24 R160 discovery is initiated by a notice to make discovery which is a written notice
requiring party to make discovery of all documents relating to any matter in question or
in issue which happen to be in his possession or is still in his possession or control. The
notice can be served by either party and the time limits for responding is 24 days
excluding public holidays and weekends.
N.B The purpose of discovery is to prevent what is called trial by ambush springing a
surprise on the other party. The procedure for making discovery is that deliver an
affidavit in form No. 18 and attach a schedule of documents and that schedule will be
divided into two parts. The first part will contain documents which you object to produce
(if it contains privilege information i.e communication between lawyer and client,
covering state privilege, statements by witnesses for the purpose of litigation existing or
contemplated discovery must be made with the bona fide intention to the LP inorder to
obtain advice or institute proceedings (legal professional privilege).
Kerwin v Jones 1957 R & N 432, 1957 (3) SA 181
Boyce v Ocean Accident and Guarantee Co-operation Ltd 1966 (1) SA 544
Association of Rhodesian Industries & Ors vs Brookes and Or 1972 (2) SA 687 (state
privileges)
(see Part 2 notes).
Once a party attach discovery of documents and the other party think the discovery is
incomplete he can make a note of further discovery R162. If the party assist that they do
not have the documents they have to state on oath on the affidavit, Where the claim of
privilege exist it can be challenged in terms of R177. The court of the judge can actually
inspect the documents.
Once the documents are disclosed and not privileged give a 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:-

34

(i)

the place where the documents may be inspected. For parties represented by LP
the usual place is LPs office.
(ii)
the period during which the documents may be inspected. Each period should not
be less than 5 days and should be on not later than 3 days from the date of
delivery of the notice.
In the case of bankers books or books of accounts on constant use for the purpose of any
business in case of inspection the place is their usual place of custody.
R164(1(a) was inserted by SI 80/00 Form No. 20 specifying the place where documents
will be inspected.
R164(2) place in LPs office or usual place of custody of books of accounts.

Where one receives Form No. 20 inspect the documents during normal hours between
the period specified R164 (3).
If a party fails to produce a document for inspection when required to do so, he will
not be allowed to use it at the trial unless the court orders otherwise on good cause
shown R164 (4).
If a party fails to make discovery to make inspection, you make a chamber
application for an order to make compliance with the notice to inspect R165 (1).
If a party is ordered to make discovery in terms of R165(1) and still do not comply
with the order, then the party in whose favour the order was made can make a
chamber application for the dismissal of the partys claim or striking out of the
defence if its 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 its a claim for damages then the court will lead evidence as
to quantum either by affidavit or oral (R165(2).

A party who requires another to produce a document at the trial can give them a
notice in terms of Form. No. 21 R166(1). The notice must be given at least three days
before the hearing. However the court may allow the notice to be given during the
course of the hearing R166(2). The court may also order the production by any party
of any documents in his power or control relating to the matter in question and the
order is made during the course of the proceedings R167. R168 deals with failure to
produce the documents at the hearing of the proceedings or has been ordered to
produce that the hearing by the court and fails to do so the court may dismiss the
claim or struck out the defence of the defendant and gives default judgment. This is
subject of whether there has been evidence either orally or affidavit to quantum the
amount if its for damages.

Where a party in a pleading or affidavit filed during the course of proceedings makes
reference to any document the other party may require him or her to produce such
documents within 10 days and also to permit him to take a copy thereof. R169(1) as
amended by SI80/00. The notice is in form No. 22.
A party who fails to comply with the notice Form No. 22 then he will not be allowed
to use that document in the action of proceedings except with the leave of the court
but any other party may use the document R169(2).
35

Make a chamber application to compel production of the document R169(3). If the

party is ordered to produce the document for inspection and making of copies and
they require to comply with the order then they can be a chamber application to
dismiss the claim or strike out defence followed by default judgment. R169(4) and
evidence as to quantum of damages orally or by affidavit.
R171 service of an order or notice to make discovery on the LP shall be sufficient
notice unless the party against whom the order was made shows that he had no
knowledge or notice of the order in R171.
It is an offence for a LP to fail to give notice to make discovery to the client and is
liable to attachment R172.
PRE-TRIAL CONFERENCE (026) (Curtailment of Proceedings)
The purpose of the Pre-Trial conference is to attempt to settle the matter out of court
and if that fails to reach an agreement on many issues as possible to curtail the trial;
to define the real issues in dispute so that the parties and the court are clear.
R182 there are three ways in which the PTC can be convened
(i) by agreement between the parties where they hold the PTC themselves at
mutually convenient time and place Rule 182 (1)
(ii)
where the parties by consent agree that the PTC be held before a judge in
chambers. The date and time is fixed by the registrar in consultation with the
parties R182 (3).
(iii)
Can be convened in terms of the rules if the judge instructs the registrar to
convene a pre-trial conference before a judge in chambers at a time specified
in the notice of the registrar and the rule require the registrar to give
reasonable notice R182(4). This can be actually done at any time during the
proceedings regardless of whether the parties had done the pre-trial
conference themselves. However if the notice is given before the parties
convene the PTC it shall not be necessary for them to do so R182(5).

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

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

36

documents which are to be used at trial in one bundle and paginate them, defining of
the real issued to be decided at the trial. The issue of an interpreter can also be
discussed.
If the parties held the PTC themselves then at the conclusion of the PTC they must draw
up the minute of the PTC which should summarised the issues discussed and to be signed
by the parties or their LP R182 (7).
If it is held before a judge then the judge would do the following;(i)
record the decision taken at the PTC and any agreements reached by the parties;
(ii)
he may make an order limiting the issue for trial to those not deposed of by
admission or denial.
(iii)
He must record the refusal of any party to make an admission or reach an
agreement and the reasons thereof. If it turns out that the reasons were
unreasonable then the party will be awarded costs R182 (10).
If the parties can not agree on any issue in R182(2), any of the parties may make a
chamber application to a judge for a direction in regards to a matter in dispute R182(8).
If the parties manage to reach a settlement on any of the matters in dispute then a judge
may make an order embodying the terms of settlement that is an application by the
parties (chamber) R182 (9).
If the parties cannot agree on how to hold a PTC or if they agree to hold themselves but
do not agree on the date can make a chamber application for direction on how to proceed
R182(6).
If the party fails to comply with the direction given by a judge in relation to the holding
of a PTC or with a notice served by the registrar from a judge to convene PTC as per Rue
182(4) then a judge may dismiss the parties claim or strike out the defence. It can be
done either on oral application or chamber application R182(11).
R183 allow a judge to consult parties in chamber for discussion.
R184 says that a court giving judgement that the trial of the action must take into
consideration the provisions of R182 in relation to making of an order as to costs. If the
court is of the view that party has been unreasonable in making an admission or reaching
an agreement then the court may order such a party to pay additional cots for such refusal
even if they are the successful party in the action (R184).
Special Procedure for Hre: NI March 1995
All PTCs in Harare are held before a judge in chambers. However the parties can request
a judge to allow them to hold the PTC themselves if they believe that PTC before a judge
would not serve any useful purposes because the legal or factual issues are very complex
or because the prospects of settlement or agreement are very remote. Reasons should be
given for their belief.

37

The procedure is to file a notice (once in position to hold a PTC) to attend the PTC with
the registrar and in that notice leave the date and the time blank. The notice is
accompanied by a concise summary of the evidence led at the trial including a list of their
evidence. The notice should also be accompanied by a draft PTC minute listing the
issues what you perceive to be determined by court, admission, estimation of duration of
trial and other issues in R182. The Registrar will inset the date and the time in the PTC.
Take the notice to the other party and serve it on them together with the copies of
summary of evidence and draft PTC minutes. Then file proof of service with the
registrar.
The party who receive the notice for the PTC and accompanying documents should also
file their summary of evidence at least 5 days before the date of the PTC. If they dispute
the draft PTC minute or wish to add anything further then they must file their own draft
PTC. The date set for the PTC, a party should attend either in person or by a rep familiar
with the facts and duly authorised to make decisions on behalf of the party together with
the LP. A LP can apply for their client to be excused from attending the PTC in person
for good cause shown. Its only granted in special circumstances.
At the PTC the judge will actively seek to call the strengths and weaknesses of active
parties and to reach an agreement on the matter referred to in R182(2). The judges
intention will either be to reduce the issues between the parties and assist the parties to
settle the matter out of court.
The judge who preside at the PTC will not preside at the trial (bias).
If a party is a self actor serve the relevant notices on them by registered post at the
address of service and provide proof of posting as proof of service. If the party is a self
actor the judge may condone their failure to provide a summary of evidence or draft PTC
minutes. The nature of the case will be ascertained at the PTC.
A judge may postpone the PTC to a later date if he is of the view that there are some
issues to be clarified and such clarification will lead to the resolving of the matter or
narrow the issues. The PTC will still be before the same judge and another judge.
At the end of the PTC the judge will draw up the minutes. It is set down for 45 mins on
Thursdays and Fridays.
SET DOWN
Note 1/95 trial dates can be allocated at PTC in terms of the rules of court is open to
any day that is not a Sunday or public holiday R281 at the working hours are 8 1 pm
and 2 4 pm on each business day. For the court there are what are known as vacation
days and are published by the calendar which fixes which days are vacations and which
are not. A contested matter cant be set down during a vacation unless its extremely
urgent.

38

After PTC request the registrar to prepare cause list in Form 26A. Form 26A require the
following: the number of days required for trial, who are the plaintiffs LP, would LP be
actually be representing the plaintiff and is it the same for the defendant. Confirm for any
discoveries. As soon as dates are available the registrar will allocate dates for trial in
terms of R215. The date can be changed on good cause shown but the parties should be
consulted. The parties can change the date but have to apply to a judge.
If the parties are represented the notice is served to the LP and if not by registered post to
the address of service or last known address. As a matter of constitutional law the matter
should be held within reasonable time.
If the parties are represented the notice is served to the LP and if not by registered post to
the address of service or last known address. As a matter of constitutional law the matter
should be held within reasonable time.
Pickering v Zim Newspapers 1991 (1) ZLR 71. The applicant issued summons for
defamation on the 25th of January 1990. Pleadings were closed on 9th of August 1990, the
HC was held and there was application for set down. The applicant sought an urgent set
down of the matter because the defendant was continuing to publish defamatory
allegations against him and this had a detrimental effect not only on him and family but
also in public confidence in the banking sector. He applied in terms of S18(9) of the
Constitution. He also said that the defendant would suffer no prejudice if the matter was
heard as a matter of urgency. He said the matter was unlikely to be held in 1993 if the
normal proceedings were followed. The respondent applied for cancellation of the
application alleging that the lack of facilities for the hearing of civil trials could not
defeat the applicants constitutional right, submitted that matters that that of the applicant
should be set down within 1 years of the commencement of the proceedings and within 6
months after application and any delay beyond that time is unreasonable.
The application cannot be equated to a any ordinary commercial claim and the applicant
was entitled to vindicate his name as soon as possible in response to the application he
suggested the matter be heard on the 29th of October 1990 and be heard at any time
between the 12th and the 16th of November but those days had not been taken by the
applicant.
Held: The applicant had not established that the trial could not be heard before 1993.
The applicant had not established that the trial in 1993 would infringe S18(9) of the
Constitution given to the fact that allowance must be given to institutional shortcomings.
The applicant was in no worse position than other litigants and special preference for his
matter would violate the constitutional rights of the other litigants.
The application was dismissed with costs.
TRIAL - O49

39

Trial is open to the public S49 of the High Court Act. Proceedings are in English but
court can choose the trial to be held in camera.
Hayes case
The duty to begin depends on who has the burden of proof. It its on the plaintiff, the
plaintiff adduces evidence first R437 (1). If on the pleading the burden is on the
defendant then defendant adduces evidence first R437 (2). Where the burden or proof is
on the plaintiff on same issues and on the defendant on others then the plaintiff will
adduce evidence first on those issues on which the burden of proof is on him. The
plaintiff will then adduce evidence on all issues. The plaintiff will then adduce evidence
on those issues not previously addressed or dealt with R437 (3), (4).
If there is doubt or dispute as to who has the burden of proof then the court has the
discretion to determine which party shall begin.
The opening address (plaintiff)
By the plaintiff R438 (2). The purpose is to give a summary of the facts which are going
to be proved by evidence. At this stage there are no arguments.
Presentation of Evidence
Witness or other parties themselves should be outside the court until their time to give
evidence has come
Guard against inadmissible evidence.
The court in a civil trial cannot call a party to give evidence without the consent of
the parties. However the court can recall a party who has testified to clarify certain
aspects of the case. Parties can also recall witnesses and if the other party objects
make an application to recall and its done when the parties has closed the case so that
you reopen 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 ed 556.
If examining own witness do not ask leading question. These questions suggest answer.
Examination in Chief
No leading questions.
Cross-examination by the defendant
Re-examination
At the conclusion of the plaintiffs case they close their case and the defendant can
actually apply for absolution from the instance. This is where the defendant argues that
case presented by the plaintiff is insufficient to put him to his defence (no prima case). If
there is no such application the next stage is the opening of defendants address R438(3).
The defendant will also call his witnesses who will go through the same processes set out
in the plaintiffs case.
N.B Cross-examination is not compulsory dont do it if there is no issue to challenge.

40

After the defendant present his case he will close his case and the applicant will do this
closing address. The closing address starts with the plaintiff followed by the defendant
and finally the plaintiff will reply 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 V.B.M.M. Process Pvt Ltd 1973 (1) SA 627.
This was an appeal from TPD. The main argument for 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. Oral argument is far more effective
than 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
circumstance and only after discussion with counsel. P628.
Conclusion is that the court a quo had committed a serious irregularity in denying the
litigants an opportunity to address the court. The court then considered to deal with the
matter on the merits and dismissed the appeal with costs.
5 May 2004
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 postponement but if they do not consent make an
application to the court for postponement. The court will take the following into
consideration;
Madzimbamuto v Lardner-Burke NO & Ano. 1 1966 RLR 228
The applicant applied on notice of motion for an order of habeas corpus in respect of her
husband who was in detention in Gwelo prison. In her notice of motion served on the
respondent on the 24th of February 1966 the applicant called upon the respondent to file
her opposing affidavit by the 4th of March 1956. The affidavits were not filed and still not
filed at the time of hearing 14th march 1956. The solicitor general who was appearing on
behalf of the respondents sought postponement of matter for further investigations of
legal issues and filing of affidavits. Counsel was sent overseas to research on many of
the books not available in local libraries. The applicant opposed application for
postponement and as an alternative sought to have an order to compel the respondents to
file their affidavits on a specified date. He also gave the court an indication of the
proposed nature of contents of such affidavits.

41

Held: the rule do not provide for an order to disclose the contents of the respondents
affidavit.
Held: Although the granting of a postponement is an indulgence of the court, it is normal
to grant a postponement provided that the application for a postponement is bona fide and
the party applying for such postponment is prepared to pay the wasted costs and there is
no substantial prejudice to the other party, pg. 231.
Conclusion: issues were sufficiently complex and prima facie case to allow the
postponement to allow filing by affidavit.
Issue of prejudice by postponement, the court noted that the respondents were prepared to
release the applicants husband from prison without admitting the unlawfulness of the
detention. However the husband would still be restricted to the area of ..
Held: The matter was to be postponed and the respondent ordered to pay wasted costs
and to file their affidavits by 28 April 2006.
Leapman & Anor v Barrow 1971 (1) RLR 40 GD
On the day of the trial of the action, the defendant applied from the bar for a
postponement sine die (without specifying a date). Two grounds of postponment were
given:
(i)
(ii)

it was alleged that the plaintiff had filed his discovery affidavit late
the plaintiff was also alleged to have filed his plea to the defendants claim in
reconvention late.
The plaintiffs discovery affidavit was filed on 16 August 1971. The trial was set down
for hearing on 18 August 1971. The plaintiffs discovery affidavit disclosed 42
documents of which almost 10 of them were not in the defendants discovery affidavit.
In addition there was an indication that the plaintiff had not made full discovery.
Held: The defendant was prejudiced by the late discovery because he denied him an
opportunity to inspect and take copies if necessary of the disclosed documents and also to
prepare evidence in response to the documents. Therefore the postponement was granted.
A similar situation would not arise at the present rules because discovery must be
completed before trial dates are allocated.
Cunningham v Cunningham 1958 R & N 655
The applicant who was the respondents ex-wife brought an application for the increase
of he amount of maintenance payable to her by the respondent under an existing court
order through an administrative which is the office of the applicants attorney the fact that
the applicants opposing affidavit had been filed escaped everybodys notice until a day
or two before the hearing. Applicants counsel sought postponement of matter to enable
investigation of the respondents opposing affidavit to see whether it might be possible to
adduce evidence which would show the facts in the respondents affidavit to be wrong.

42

Two contentious issues was whether or not the respondent was in areas (ii) the financial
circumstances of the respondents.
Held: The issue of whether or not respondent in areas had no bearing on the application.
On issue of respondents means it was said that it was a matter perculiary within the
respondents knowledge and it was difficult to see how the applicant would produce
contradictory evidence. The court also noted that the matter could not be postponed
subject to the conditions that the applicant pays the wasted costs because the applicant
was appearing i.f.p (in forma pauperis) the court also said that there was no indication
that there was important evidence which the applicant sought to give. The court was of
the view that the applicant was on a fishing expedition.
Conclusion
It would be an injustice to the respondent to postpone the matter. The application for
postponement was refused.
JUDGMENT
There are basically two types of judgment for plaintiff or defendant or it can be
absolution from the instance.
Absolution from the instance
It can be granted in two different circumstances
(i)
under R437(1) it can be granted at the close of the plaintiffs case were the
defendant applies for it.
(ii)
it can be granted at the conclusion of the trial and the court is of the view that the
evidence presented does not justify giving judgment in favour or either party. The
plaintiff not succeeded in establishing his fact neither has the defendant succeeded
in his defence.
Supreme Service Station(1969) Pvt Ltd v Fox and Goodridge 1971 (1) RLR 1
The appellant who was the applicant sued the responded in the magistrates court for the
costs of work and labour done and materials supplied in repairing a motor-car. At the
close of the plaintiffs case which defendant successfully applied for absolution from
instance. The plaintiff appealed against the decision. It was common cause that the car
did not belong to the defendants company but to Fox personally. Fox had signed a form
applying for credit in which he bound the company as co-principal debtor. The account
remained unpaid for several months and the managing director of the plaintiff thought it
desirable to obtain the signature of Goodridge who was Foxs director and then applied
for credit. Goldridge refused to sign the form alleging that Fox had no authority to sign
the form alleging that Fox had no authority to bind the credit of the company and also
that the care was Foxs personal car. Invoices for the work performed were put in as
exhibits at the trial and customers name was given as Fox and Goodridge (Pvt) Ltd. In

43

deciding the application for absolution from the instance to magistrate came to the
conclusion that no reasonable court could give judgement for the plaintiff and that is why
he granted absolution from the instance.
On Appeal
Held: The magistrate erred in failing to distinguish application for absolution from
instance at the close of the plaintiffs case and application for absolution at the conclusion
of the trial. The test given by the court:
(i)

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

(ii)

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

Conclusion
There were facts indicating that Fox had authority to bind the defendants company the
facts which a reasonable court might grant judgment for the plaintiff. The appeal was
allowed for that reason.
If a party does not show up for trial the court will grant default judgment.
CORRECTION AND ALTERATION OF JUDGMENT R449
Banda v Pitluk HH 164/93, 1993 (2) ZLR 66
Applicant sought rescission of a default judgment which was opposed by the respondent.
The applicant filed an answering affidavit to the respondent opposing affidavit on the
afternoon preceding the date which the matter was to be hear. The respondents Legal
Practitioner objected to the late filing of the affidavit. The respondent subsequently
withdrew the opposition for the late submission to the late filing and the explanation for
the delay was that the applicants Legal Practitioner had renounced agency on the 7th of
July 1993 when the matter was to be heard on 14th July 1993 thus giving him sufficient
time to prepare himself to conduct the case on his own. The court strongly censored the
conduct of the LP and the mater resume the former LP came back. On the resumed
hearing mero motu (own initiative) raised an issue on whether the application should have
been made under R449 (1) instead of R63 which is the rule on rescission of default
judgment. The reason for the subjection is that there was an appearance to defend by the
applicant which had been duly signed by the registrar but had not been duly served by the
plaintiff.

44

BARRING 012
When does a party becomes barred? - O7 R150

If a defendant fails to enter appearance to defend they are automatically barred.

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

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

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

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

Removal of the Bar

It can be done by consent. Form No. 10 is used to file a notice of removal of bar. If the
other party refuses to consent make an application for removal of bar 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 Kircos 1957 R & N 144.

45

The application for the removal of a bar for failure to file a plea timeously was supported
by an affidavit by the applicants attorney. Much of the affidavit was mere opinion on the
merits of the applicants case. It was held that in the absence of special circumstances, it
is the client himself who should make the affidavit because it is he or she who knows the
facts upon which the case is founded. When the time came it will be for him or applicant
to establish her claim. Postponement will be granted to allow the applicant to file a
proper affidavit.
What is it that the applicant must establish to succeed in having bar removed?
See Petras v Petra SC 71/91
The plaintiff brought an action for divorce against the defendant. The defendant entered
appearance to defend but failed to file his plea and counter-claim timeously. The
defendant was barred. The defendant applied for removal of the bar (uplifting of the bar).
The application was dismissed by the High Court on the ground that there was no
reasonable explanation of the failure to file the plea timeously and the proposed defence
had no merits. The defendant appealed to the SC.
Held: An application for removal of the bar must satisfy the following requirements:
(i)
the applicant must give good reasons for the default;
(ii)
the applicant must set out facts on which he relies on for the defence so that the
court can form an opinion from the merits and bona fide of the defence.
The SC concluded that the applicants default was intentional or at least reckless. The
defence had no merits. The appeal was dismissed with costs.
N.B Prior to 2000 it was only a defendant who could be barred but now both can be
barred.
7/05/04
FURTHER PARTICULARS O21 R137(1)(d)
Further particulars can be requested for two different reasons:
1.
2.
3.

to enable the party requesting particulars to plead;

particulars can be requested for the purpose of preparing for trial.
It can be requested by either party.

For the purposes of pleading

What is the degree of particularity?
Citizen Pvt Ltd v Art Printing Work 1957 (3) SA 383
There was no application for an order compelling the plaintiff to supply further and better
particulars. These are requested when the party is unsatisfied with the particulars. The
plaintiffs 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

46

declaration. The defendant requested further particulars and was supplied with particulars
which were denied. The particulars sought were detailed information on how the plaintiff
have arrived at its charges. For example on 42% to cover overheads and the defendant
wanted to know the following in respect of its charge:
(i)
(a)
(b)
(c)
(d)
(e)
(f)
(g)

wanted to know how much was allowed for the cost of

salaries, description and number of employees
other office expenses stating what they are]
how much was allowed for advertising stating how much and what proportions of
the total advertisement expenses is desired for printing overheads.
How much was allowed for depreciation other than depreciation of printing
machine and state what is meant by depreciation and how it is calculated.
What was meant by overhead rent and how it differed from other rent
The defendant wanted to know the details of the interest claimed
Details of the bank charges.

Held: It should be remembered that it is a fundamental principle of all pleadings that

the statement of material facts should be in summary form. Even where the pleading is
not defective by reason of the omission of any material fact the court will order
particulars if it considers that as a matter of fairness they should be given. The procedure
however was not designed to enable one party to ferry out inquisitorial forays upon his
adversary; nor should it be regarded as a challenge to the subtle and overcurious I
have studied the present request, its complexities and magnitude will not fail to impress
the most reasonable litigant. I am satisfied that the applicant should not as a matter of
fairness be given the information for which he asks. P386.
Application was dismissed with costs.
Time Security Pvt Ltd v Castle Hotel Pvt Ltd 1972 (3) SA 112
The plaintiff sued the defendant in the magistrates court for payment of $85,63 being an
amount allegedly due by the defendant to the plaintiff for services rendered. The services
were, providing a security guard for the defendants premises. The defendant pleaded to
the summons as follows: the defendant states that it was quire entitled to terminate the
contract because the security guard supplied was not carrying out his duties properly and
not providing real security at all. The plaintiff requested further particulars to the
defendants plea
(a)
the plaintiff wanted full details of the alleged failure by the security guard to carry
out his duties properly;
(b)
the plaintiff wanted details of what was meant by the allegation that the security
guard was not providing any real security.
The defendant refused to furnish the particulars on the ground that they were not
necessary to enable the plaintiff to plead. The plaintiff applied to the magistrate court for
an order compelling the defendant to supply them. The application was dismissed and he
appealed to Appellate Division. The SC started to define what is meant by ability to
plead or prepare for trial.

47

Held: Ability to plead or prepare for trial means the ability properly to plead or prepare
for trial. A litigant is not to be put in the position either of pleading in the dark or
preparing for trial in the dark. No hard and fast rule can be laid down regarding the
particularity required. Each case must be judged on its own merits.
Held: On the issue of purposes of pleading a litigant must not be put in the embarrassing
position of being forced to resort to bare denial by the lack of particularity. A denial
which in the light of the particulars supplied at a later stage he might well be obliged to
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 pg. 114.
Held: Plaintiff was entitled to the particulars sought because the plaintiff being a
company could not be expected to supervise all its employees. It was incumbent upon
the defendant to inform the plaintiff of any failure to perform his duties by the security
guard. The plaintiff also needed to know in what ways the guard was not performing his
duties e.g did he not report on duty at all or did he report for duty and then fail to perform
the duties.
Appeal was allowed with costs.
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 file within 12 days
form the day of compel of supply.
If the party refuse to comply the defendant should file their plea within 12 days of date of
refusal R142 (b).
If there is refusal and an application is made to compel the time is calculated from the
date the court refused to grant rant the application R142(c).
Request for further and better particulars if the particulars supplied are insufficient
(Citizen (Pvt) Ltd) R141(b) gives the court power to furnish further particulars.
R143 further particulars for the purpose of trial. Form No. 13 is used.
OFFERS AND TENDERS IN SETTLEMENT 022
Basically in terms of R144 a party to proceedings may make a written offer to settle
either in whole or in part at any time within the course of the proceedings R144(1) . The
offer can be made without prejudice without admitting liability R144(3).
R144(4) specifies the content of the offer. The offer must be signed by the person
making it or by his or her legal practitioner. The offer must also set out all the terms and

48

conditions on which it is given. The offer must also indicate that it is made in terms of
R144.
Once a written offer is made you must given notice of the offer to the party whom you
are giving the offer. R146(1) the notice must state whether the offer is being made
without prejudice and it must also state whether the offer is being made in respect of both
the claim and costs or being made in respect of the claim only. Also state whether the
offer is accompanied by an offer to pay all or part of the costs and therefore any
conditions subject to which the costs will be paid. The same rule also apply 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) you can also make it without prejudice.
The details required are the same as in the offer i.e signed by the parties, LP R145(4).
Once an offer or tender has been made the person to whom it is made has a period of 15
days to accept it or reject. If accepting they do so by filing a written notice with the
Registrar indicating that they are accepting R146(1) and must be served on the person
made the offer or tender and proof of service must be filed with the Registrar R147 (3).
Once the 15 day period has expired the tender or offer can no longer be accepted unless
the offeror or person who makes tender gives consent or the court on application orders
that it may be accepted R147(2).
Where the offer or tender does not include costs the person who accepts the offer or
tender may make a court application to pursue the costs R147(5).
If there is an offer or tender made without prejudice the fact should not be disclosed to
the court before judgement R149(a) Par (b) required the Registrar to remove any
references to the offer or tender from the file. After judgement the fact can be disclosed.
The fact is considered for the purposes of costs. If the plaintiff unreasonably rejected the
tender or offer in settlement even if they succeed they will be penalised in costs. If dont
succeed they can be penalised on paying the costs on a higher scale R150(1).
R150(2) allows the court to reconsider the question of costs if it had made a decision on
the issue without being aware that there was an offer or tender in settlement. This
reconsideration is made on application by any party to the proceedings within 5 days of
the decision on the issue of costs.
SUMMARY JUDGMENT
Its a procedure which allows the plaintiff who feels that the defendant has entered
appearance to defend to delay proceedings (no bona fide defence) to apply to court for
judgment.

49

Chrismar Pvt Ltd v Stutchbury & Anor 1973 (1) RLR 277.
There was an application for summary judgment. The Plaintiffs claim was for
accelerated performance by reason of an allegedly implied term of the contract of the
defendant partially performed obligations as the purchaser under a written deed of sale of
a general dealer investment business as a going concern. The defendants defence that he
had cancelled the contract and had intended to counter-claim for cancellation of contract
and restitution. There was extensive correspondence between the parties attorney in
which the defendants defence on counter claim were provided and these were that a
resolutive condition of the agreement was not timeously fulfilled and also that the
plaintiff had failed to deliver the subject of contract of sale (ii) The defendant alleged that
have been induced to enter into contract by material and fraudulent misrepresentation.
The defendant were denying the alleged implied terms on which the plaintiff was relying
on performance. There was application for summary judgement by plaintiff.
Held: 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 audi alteram partem (principle of natural justice to hear both sides
of the case.) So extraordinary or evasion of a basic tenet of natural justice would not be
resorted to likely and it is well established that it is only when all the proposed defences
to the plaintiffs claim are clearly inarguably both in fact and in law that this drastic relief
will be afforded to the plaintiff pg. 279.
Held: The defendant had raised factual and legal issues which were highly arguable.
The application for summary judgment was ill conceived since the plaintiff was aware of
the proposed defences. Application for summary judgment was dismissed.
Procedure O10
The application for summary judgment is a court application and can be made at any time
before a pre-trial conference is held. Court application will be supported by affidavit
made by the plaintiff or any other person who can swear positively to the facts and in the
affidavit, the deponent of the affidavit will do he following; verify the cause of action and
the amount claimed if any; state that his order belief there is no bona fide defence to the
actioR64(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 bonafide defence to the action R6(3) it is
a restatement of decision in Beresford Land Plan v Urquahart 1975 (1) RLR 263, 1975
(3) SA 619.
Once an application has been made the defendant has several options.
(1)
judgment which may be given against him/her in the action R66(3)(a) whatever
security given must satisfy the registrar that it is adequate
(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).

50

Affidavit can also be by defendant or anyone else who can swear positive to the fact
with personal knowledge of the facts.
What is meant by good prima facie defence?

(i) a question of law can be a good prima facie defence. Shingadia v Shingadia 1966
RLR 285. The plaintiff claimed summary judgement on an agreement which required
him and another to act jointly in claiming relief. The plaintiff and the other claimant
were brothers and they were also partners in the business. The other claimant who
was supposed to have been joined was deceased at the time. The defendant argued
that the plaintiff should have joined the executor of the estate of the deceased as coplaintiff.
Held: Summary judgment should not be granted when any real difficulty as to the
matters of law arises. However the court can still grant summary judgment if satisfied
that the point of law raised by the defendant is really arguable.
Held: The defendant had put forward a triable and arguable issue. The plaintiff sought
to amend the summons to cure the defect but the amendment was refused because it was
not proper to make it at that stage. Application for summary judgment was dismissed
with costs.
Hughes v Lotriet 1985 (2) ZLR 179 (H)
The claim was for $3000 being money lend and advanced to the defendant. The
defendant had pledged certain musical instruments as security for the loan. The
defendant entered appearance to defend and the plaintiff applied for summary judgement.
The defendant raised two defences in opposing summary judgment. (i) he was wrongly
cited as defendant. The money had been lend and advanced to the company named
International Music Enterprises (Pvt) Ltd for which he was a director (ii) the plaintiff was
in breach of a contract entered into with the company and wanted to counter claim and
value of claim was actually $5 300 for recovery of assets.
Held: First defence contradicted the written loan agreement which was annexed to the
plaintiffs affidavit. Even if it was the company then the defence should not succeed
because if he acted as agent of the company then he had not disclosed his principal and
signed the agreement. The counter claim could not succeed because there will be no
claim can arise from the pledge until the principal obligation has been discharged.
Summary judgement was granted.
Lincoln Shop (Pvt) Ltd v Axis Internationl and Wonder Chizema HH 54/94
An application for summary judgment and claim based on two lease agreement and
plaintiff was seeking arrear rentals totalling $19 288. The second defendant had signed
the leases on behalf of the first defendant and he also bound himself as co-principal
debtor. The plaintiff attached the following documents in support of its application for
summary judgment.
(i)

copy of the lease agreement

51

(ii)
(iii)

an acknowledgement of debt in respect of part of the arrear rentals

a letter to the plaintiff by the first defendant managing the premises in which he
indicated willingness to vacate the premises and pay the arrears and sign an
acknowledgement of debt in respect of the arrears. The defendants defence was
that the agreement of lease attached was not the one he signed and that he had no
authority to bind the company.

Held: The defendant had not denied liability but was merely raising technicalities (were
missing pages of the lease agreement). The defendant had no bona fide defence and
summary judgment was granted.
11/0/04
Rex v Rhodian Investment Trust (Pvt) 1957 R & N 723 1957 (4) SA 631.
Good prima facie defence means that the defendant must allege fact which if he can
succeed in establishing them at the trial would entitle him to succeed in his defence.
Wilson v Hoffman & Anor 1974 (1) SA 44
The claim was for goods sold and delivered. The defendants defence was that some of
the goods were defective and had to be repaired at an estimated cost of $1 613.30. There
was an argument by plaintiffs 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 an ordinarily fatal to the defendants case provided that the facts are there
good if proved to be a good defence.
Held: The defence have raised a legitimate issue for trial. The facts of the defendants
counter-claim was less than the plaintiffs claim would not make it unacceptable to the
defence to summary judgment.
Rheeder v Spence 1978 (1) SA 1041
The plaintiff claimed $4500 being money lend and advanced to the defendant. The
defendants defence was that at the time that he loans were made he and the plaintiff were
having an affair and living together as husband and wife. It was agreed that he would
repay when he could afford and also when it was convenient to do so. The plaintiffs
alleged that the condition of repayment was vague and unenforceable and therefore the
defendant had no good prima facie defence had no a good prima facie defence.
Held: The defendant had raised a triable issue that even though the condition was vague
it could be established by evidence at trial.
Oak Holdings (Pvt) Ltd v Newman Chiadzwa SC 50/86. The plaintiff sued the
defendant for payment of $92 950.00 du under an 1.0.u note signed on behalf of the
defendant by its managing director. The plaintiff applied for summary judgment. The
defendants defence was that the i.o.u not signed on behalf of the defendant by its

52

managing director. The plaintiff applied for summary judgment. The defendants
defence was the i.o.u not a question was to the knowledge of both parties and fictitious
document. He said it had been created for the purpose which was later abandoned. She
gave full details of the alleged purpose. The defendant went on to say that when the
purpose was abandoned it was agreed that the i.o.u note should be destroyed and that the
plaintiff had actually destroyed the document in the presence of the defendant which he
fraudulently presented as i.o.u note. The judge in the HC was of the view that the
defence raised by the defendant was so improbable in the facts that it could not be good
prima facie defence. Summary judgment was granted and appealed to the SC. The SC
disagreed with the approach of the HC on the question of defence and stated that
applications for summary judgment are not decided on a balance of probabilities however
strong. Unless the court is satisfied that the plaintiffs case is clearly unanswerable it is
not entitled to grant summary judgment. The defendants defence was disclosed in the
affidavit replete with details (full of details) and by no means so far fetched at it can
be dismissed out of h and as an obvious fabrication. Appeal was allowed with costs.
R67 limits the evidence that can be presented at the hearing of the application of
summary judgment. The plaintiff is restricted to the affidavit which would have been
made in support of the application and neither party may cross examine any party who
gives evidence wither orally or by affidavit. However there are an exception in a proviso
to R67. These are:
(h)
(i)

(j)
(a)

the court may permit evidence to be led in respect of any reduction to the
plaintiffs claim R67(a).
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 that the time the application was instituted the plaintiff was
or should have been aware of the defence R67(b).
The court may also permit the plaintiff to supplement his affidavit to deal with
either or both of two specific issues.
any matter raised by the defendant which the plaintiff could not reasonably be
expected to have dealt within his first affidavit where plaintiff was taken by
surprise.

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

MWP Enterprises (Pvt) Ltd v V.A.M Machado (Pvt) Ltd HH 139/93
The plaintiffs were allowed to file supplementary affidavit.
R70 the court may give leave to defend either unconditionally or subject to conditions
i.e the giving of security.
R73 deals with a situation where there are co-dependants and the court can make a
decision that one defendant is entitled to pay and the other not. In that case the court
will give leave to defend to the defendant entitled to defend and then enter summary
judgement.

53

 Where the defendant shows that he has a good prima facie defence to part of the
claim and the court could give leave to defend on that part of the claim.
R72 the costs of application of summary judgment if unsuccessful the court gives
the defendant room to defend and decide who will pay the costs for summary
judgment.
The general order is costs in the cause means that the decision on who is to pay is
deferred until the matter is finalised. 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 which would entitle him to unconditional leave to defend, the
court will order the plaintiff to pay the defendants costs on a LP and client costs.
(Higher scale to penalise somebody) and also order that the action be stayed until the
plaintiff has payed the costs. Interpretation of the provision see:
The court said that the rule contemplates that in appropriate cases the court may order a
stay of action until costs are paid.
Held: there was a no reason to find that the plaintiff attempted to harass the defendant or
had been guilty of approbrious (blameworthy conducts) conducts other than the plaintiff
had sought to gain an advantage over the defendant by compelling him to make sworn
disclosures of his defence.
Held: the plaintiff had merely taken an over-sanguine (over optimistic) Application
dismissed with cost on party to party scale.
Plaintiff to pay costs on a party to party scale. R72(b) applied where the plaintiff knew
that the defendant was relying on over-songuire view of a case.
Rheeder v Spencer (supra)
DISMISSAL OF ACTION
It is obviously the reverse of summary judgment. In that case it is the defendant who
alleges that the plaintiffs claim is of no substance and should be dismissed in a summary
manner. 011.
The defendant can apply for dismissal of plaintiffs action on the ground that it is
frivolous or vexatious R75(1). The application is to the court made by a defendant or by
a person who can swear positive to the statement stating that he believes that the claim is
frivolous or vexatious and stating out reasons for his belief.
R75(3) the deponent of the affidavit may attach to his affidavit documents verifying his
belief that his action is frivolous or vexatious. Thereafter the procedure is the same as for
court applications as an order 32 of the HC Rules.

54

What is meant by frivolous or vexatious?

Rawden v Edwards (168 (2) RLR 212
The procedure was intended to apply actions which were manifestly groundless or
improbable and no decision on the probabilities of the case should be given.
Wood No v Edwards 1968 (2) RLR 212
The plaintiff sued the defendant for wages which he alleged were due to him by the
defendant. The defendant was the trustee of the plaintiffs insolvent state. The defendant
had employed the plaintiff as a manager of the insolvent estate at a salary of 124/month.
They were shortfalls in the payments made to the defendant totalling 844. The
defendant admitted the claim but sought to set it off by claims due to him by the plaintiff
for monies received and not surrendered to the estate and also tax costs for previous
proceedings instituted by the defendant against the plaintiff which were unsuccessful.
The defendant admitted receiving the money but denied submitting them to the estate.
He also admitted that he owed the tax costs but argued that it was inequitable to set them
off for earlier claim for wages. The defendant applied for dismissal of plaintiffs action
as being frivolous or vexatious.
Held: The same principles apply as in summary judgment. The plaintiff had no
possibility of succeeding in is claim because the trustee who was the defendant was
entitled to set off. The plaintiffs claim was dismissed as being vexatious and the
judgement of absolution from the instance was granted. However the defendant was not
awarded his costs because the court said that he was partly to blame for the
misunderstandings leading to the litigation.
Wright v Banda HH 30/94
The defendant sought dismissal of the plaintiffs claim for defamation on the ground that
it was frivolous or vexatious. The case involves a report which 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 dismissal of plaintiffs claim as frivolous or vexatious
is to provide the defendant an opportunity of 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. Pg. 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. Pg 6
R75(1) the defendant may make the application after he has filed his plea.

55

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 defendants application.
If the court is satisfied that the claim is frivolous or vexatious it may dismiss the action
and enter judgment of absolution from the instance with costs. The use of the work may
indicate discretion.
Where the court is of the opinion that the defendant has no grounds for alleging that the
action was frivolous or vexatious it may order that the defendant pay the plaintiffs costs
of a legal practitioner and clients scale. R79(3). If there is more than one defendant and
the court is of the view that the action is frivolous or vexatious against one defendant and
not the other, the court may order that the action be dismissed and judgment of absolution
from the instance entered in respect of the defendant against whom the action is frivolous
or vexatious but the plaintiff would be at liberty to proceed with the action against the
other defendant or defendants . R79(4).
AMENDMENT OF PLEADINGS O20
In terms of R132 pleadings may be amended with the consent of all parties or if they fail
to have consent should be an application for amendment. The application can be made to
the court or to a judge at any stage during the proceedings including at the trial.
A plaintiff can amend the pleadings to include a new cause of action which has arisen
after the issue of summons R134(1). If the opinion of the court or judge such amendment
may change the action substantially then the amendment would be refused and the
plaintiff would have to institute a separate action.
Where the court has granted an amendment which introduces a new cause of action the
court shall fix the time for the defendant entrance of appearance to defend and for the
filing of all subsequent pleadings. R134 (2).
The purpose of amendment of pleadings is to ensure that the issues which the parties seek
to be decided at court are brought before the court.
Levenstein v Levenstein 1955 SR 91
When dealing with an opposed application to amend the pleadings the court has a very
wide discretion as emphasized in Shill v Milner 1937 AD 101 at 105.
The object of pleading is to define the issues, and parties will be kept strictly to their
pleadings where any departure would cause any prejudice or prevent inquiry. But within
those limits the court has wide discretion. For pleadings are made or the court and not
the court for pleadings.

56

(b)

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

See Lamb v Beazley NO 1988 (1) ZLR 77

Before trial the plaintiff applied for leave to withdraw his declaration and further
particulars thereto and substitute a new declaration. The defendant opposed the
application. The plaintiffs original claim was for an order directing the defendant to
render or account of the sale of flu cured tobacco belonging to an insolvent and costs of
suit. The plaintiff was claiming to have been the owner of half of the tobacco crop that
was sold. The defendant requested the particulars of the alleged ownership. The plaintiff
replied that he has paid the insolvent $28 000 fo half the crop which he gave as
equivalent to 50 000 kg. The agreement was reduced to writing but not signed. The
plaintiff had supplied a copy of the unsigned agreement as part of the further particulars.
The defendants defence was that the agreement between the plaintiff and the insolvent
was illegal in that it contravenes section 44(1) of section 36(1) of the Tobacco Marketing
and Levy Act of 1977. The plaintiff amendment sought to allege that the tobacco was not
cured but was either still growing on the farm or had been reaped but not cured. The
plaintiff also sought to withdraw an unsigned written agreement. The plaintiff proposed
amendment would have the effect of removing the illegality of the transaction between
him and the insolvent. There was no explanation as to why the original declaration had
been filed.
Held: Generally an application to amend a pleading will be allowed unless it is malafide
or there is incurable prejudice. However the explanation must be made timeously and an
explanation must be given as to why the allegation was not made when the pleading was
originally drafted.
Held: Amendment sought by the plaintiff would introduce a new cause of action which
will call for a fresh plea from the defendant.
Held: The proposed amendments 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.
Trans African Insurance Co v Maluleka 1956 (2) SA 273 AD
The plaintiff sued for herself and on behalf of her 5 minor children for loss of support as
a result of the death of her husband in a collision involving a vehicle insured by the
defendant. The summons did no set out that the defendant was being sued as insurer but
the plaintiff had set out his details in a petition to use i.f.p. (informa pauperis) which
have been served on the defendant. The defendant sought to have the summons struck
out as not in compliance with the rules which would make it impossible for plaintiff to
rescuscitate the claim due to prescription. The plaintiff sought to amend the summons.
The defendant contented that the amendment should not be allowed to defeat the defence

57

of prescription. He cited some English cases on the point. He alleged that the plaintiff
was now creating a new cause of action.
Held: Assuming that the SA practice was the same as the English one no new cause of
action was being introduced by the amendment. The defendant fully aware of the cause
of action from the petition to sue i.f.p.
The appeal was dismissed with costs.
If an amendment of a pleading amounts to withdrawal of an admission the court will
require an explanation as to how it came to be made and also why it is sought to resile
from it. It must not cause incurable prejudice it must not be malafide.
DD Transport (Pvt) ltd v Abbort 1988 (2) ZLR 92 SV
The plaintiff sued the defendant for payment of $7 650 being the damages suffered
through the negligence of the defendants employees when transporting his boat trailer
form Harare to Bulawayo. The plaintiff alleged that the conract 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 LP protested that this amounted to withdrawal of an
admission and applied to have the offending paragraph of the rejoinder struck out. The
defendant applied to amend his plea by withdrawing the admission. An affidavit from the
LP who drafted the plea and rejoinder stated that he (LP) had no authority to make the
admission and had not appreciated the fact that the relevant paragraph could be construed
as an admission. The plaintiff filed a replying affidavit in which he indicated with
supporting copies of correspondence between the parties that the defendant never had
denied the transaction between plaintiff and King and the only issue being raised was that
authority of King who represent the defendant. The defendant did not respond to the
plaintiffs affidavit. The application to strike out was granted and the defendants
application to amend his plea was dismissed. The defendant appealed to the SC and the
SC said the court would not grant withdrawal of an admission without a reasonable
explanation of how it came to be made and why it is sought to resile from it pg 98. in
addition the application to amend must not cause incurable prejudice and must not be
malafide.
Held: Although the court a quo was wrong to disbelieve the affidavit of the Legal
Practitioner the defendant has still not contradicted the evidence that it had admitted the
transaction between the plaintiff and King. Therefore the application to amend the plea
was not bona fide. Appeal was dismissed with costs.
APPLICATIONS: 032
Applications can be divided into two categories:
(a)
court application an application in writing to the court on notice to all interested
parties. R226 (1)(a).

58

(b)

chamber application an application to a judge in writing R226(1)(b).

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

Basically all applications and the opposition of other documents should be legibly
written on A4 size paper and on one side only. R227(1)(a). If it is a long document it
should be divided into paragraphs and the paragraphs should be numbered
consecutively and each paragraph should contain where possible a separate
allegation. R227(1)(b). The whole set of documents for the application must e
numbered consecutively R227(1)(c). Numbering documents consecutively in a page
is called pagenating.
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 LP R227(2)(b). And it should give an address for
service which should be within a 5km radius from the street in which the document is
filed R227(2)(c).
An affidavit must be made by the applicant or respondent himself or by a person who
can swear positively to the facts. R227(4). An affidavit can also have its documents
verifying the facts stated in attachments as annexures and they are part of the affidavit
in which they are attached R227(4)(b).
If a party requires an extension of the time within which to respond to the application
they can make a chamber application to the extension and the judge will make an
order as he thinks fit. R229. The respondent may file a counter application
(equivalent to counterclaim) 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 its in the interest of justice to hear such
evidence. R229C allows the court to condone the use of incorrect form of application
unless they consider that some interested party has or may be prejudiced by failure to
use the proper form and that such prejudice cannot be remedied either by directions
to the service of the application or an appropriate order of the cost.
59

COURT APPLIATION

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

FORM 29
The applicants will file with the Registrar and serve a copy on the respondents.
Requirements for service is R231(1). If you do not serve an affidavit then you do not use
it is support of your application unless the court orders otherwise R231(2). Once the
application is served file proof of service with the Registrar (R41) in accordance with the
Rule 231(4).
If the respondent wishes to respond he should file the notice of opposition within a period
of 10 days exclusive of the day of service and one day of every additional 200 km 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 (Respondent Opposing Affidavit or
Replying Affidavit).
The applicant would have to respond to respondent opposing affidavit by an answering
affidavit. The answering affidavit must be filed at least 10 days before the date of
hearing of the application R234(1).
After answering affidavit nr other affidavits can be filed except with the leave of the court
or judge R235.
Next stage is to set down the application for hearing. Firstly if the respondent has been
barred then the applicant may proceeds 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 one month, the applicant has
neither filed an answering affidavit or set down matter for hearing the respondent has two
options:
(i)
R223 the respondent may set the matter down for hearing
(ii)
or make the chamber application to dismiss the matter for court of prosecution
R236(3). The same applies where the applicant had filed an answering affidavit
and after a month has not set the matter down for hearing R236(4).

60

The date of set down can be altered by a party either by application orally or make
chamber application R237. Where the matter is to be set down for hearing the applicant
has to file heads of argument which is basically on indication of what he main arguments
are going to be and including the case authorities. R238.
Hearing of the application the order is that the applicant is heard first and the
respondent is heard thereafter responding to applicants application and then the applicant
replies but the court may order otherwise R239. The court will then grant the order is
finality. The court may grant the order applied for or it can dismiss the application in its
entirety or grant a variation of the order sought. The court may also grant a provisional
order rather than a final order. R240. The court will then make an appropriate order as to
costs.
CHAMBER APPLICATION
It should have a draft order. The appropriate form to use is Form 29B. It should be
supported by one or more affidavits unless the application falls within the provisions of
R241(2) where the chamber application is for default judgment in terms of R57 (for a
claim for debt or liquidated demand) and also where the facts are evident from the
records you dont need an affidavit. If the application is to be served on an appropriate
party use Form No. 29 with appropriate modifications. The chamber application should
be served on all interested parties unless the respondent has had due notice of the order
sought or (applicant is only party to the application) you cant make it ex parte unless:
R242(1) sets out the circumstances in which the application is made ex parte (i) if the
matter is uncontentious in that the applicant is the only person who can reasonably
expected to be affected by the order sought (ii) if the order sought is either a request for
directions or an order to enforce any provisions of the rule in circumstances where no
other person is likely to object. (iii) where there is a risk of perverse conduct in that any
other person who would otherwise be entitled to notice of the opposition is likely to act
so as to defeat wholly or partly the purpose of the application prior to an order being
granted or served. (iv) where the matter is so urgent and the risks of irreparable damage
to the applicant is so great so that there is insufficient time to give notice to other parties
entitled to example a parent about to remove a child from jurisdiction. (v) where there is
any other reason acceptable to the judge why notice should not be given to parties
entitled to.
Ex parte applications require utmost good faith. The applicant should not mislead the
court by giving information which is inaccurate. R242(2) requires the applicant to make
ex parte application to set out the reasons why he believes the matter should be heard ex
parte. If the applicant is legally represent a certificate from a LP is required which also
sets out the reasons that the matter falls within the provisions of Rule 242(1).
See Vanlear v Begley Bros 1957 R & N 902
ZIMDEF (pvt) Ltd v Minister of Defence and Anor 1985 (1) ZLR 146
A legal practitioner can filed heads of arguments in terms of R243.

61

Set down depends on whether matter is urgent or not if urgent the Registrar will
immediately submit the papers to the judge who will consider the matter 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 matter is not urgent the registrar will submit it to the judge in the
normal cause of events but without undue delay R245.
The powers of the judge:
(h)
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)
(i)
the judge may require either party L.P 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
applicant to give security for any loss or damage which 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 services is
not together to be effected in terms of the rules then the order shall specify how
service is to be effected i.e by advertising in a local newspaper. The order shall
specify the time within which the respondent and other interested shall file notice
of opposition if they oppose to the relief sought. Once the provisional order has
been served the matter will then proceed like a court application.
Specific provisions relating to Deceased Estates and Persons under Disability
R248 and 249.
R250 requires that applications involving the performance of any act in a deeds
registry serve a copy of the application on the registrar of deeds. The service
should be done at least 10 days before the date of set down of the application.
The purpose of service is to allows the registrar of deeds to make a report on the
matter if he considers it necessary of if the court requires such a report.
APPLICATION FOR CONTRIBUTION TOW ARDS COSTS.

This is a court application where one spouse may obtain contribution towards his or
her costs from the other spouse to enable him or her costs form the other spouse to
enable him or her to institute or defend divorce or other matrimonial proceedings. In
practice it is very rare for a husband to be the applicant.

62

(j)
(k)
(l)

The rationale for the application is because of the reciprocal duty to support that the
spouses owe to each other. Criteria for deciding whether or not the applicant should
get contribution. The applicant must establish the following:that she does not have the necessary means to find the proceedings
that her spouse is able to make the contribution
that she has a reasonable prospect of success to the claim if she is the plaintiff or
defence if she is the defendant. If the applicant has movable property which she
might reasonably be expected to sell then she will not normally be entitled to the
contribution.
See Landry v Landry 1970 RLR 134
Ansell v Ansell 1980 ZLR 416
As to when the court will say she should sell her assets to the court will take into
account the relevant financial position of both spouses and then make a determination
of what is reasonable and just to the circumstances. In the event that both spouses
financial position is about equal but one party is possessed of considerality more
assets on the other then it will be inequitable for the court to compel the spouse with
less assets to exhaust, the modest asset inorder to finance the litigation.
See Barras v Barras 1978 RLR 384
Muzondo v Muzondo HH 247/83

The Procedure
It is a court application and includes supporting affidavits. The court may award such a
sum as it considers necessary to enable her to place her case adequately before the court.
The court may order stay of proceedings until the contribution has been paid. The order
for contribution can be enforced by the usual means for enforcing the judgment for
payment of money. The costs of the application for contribution towards costs are
generally costs in the cause:
2.

Application for Maintenance pendente lite

This is where one spouse may apply for an interim order for amendments against another
spouse or herself or himself of the children during the course of divorce or other
matrimonial proceedings and pending the making of a maintenance order for those
proceedings. The applicant is the wife. The basis of the application is the reciprocal duty
of support of spouse and as parents to children.
The basis for the application is the reciprocal duty of support of spouse and as parents to
children.
What does the applicant has to show to succeed?
(i)
that she and her children have a right to support. The respondent is legally
obligated to support the children.
(ii)
She and the children are not being maintained.

63

(iii)
(iv)

The respondent is in a position to maintain the applicant and the children. He has
the financial means to support.
She has reasonable choice of success in the main action.

Procedure
Its a court application supported by affidavits and the list of expenses is to be attached on
your affidavits. This application is combined with application for contribution towards
costs but it does not necessarily mean that if the former is granted the later will be
granted because one is lumpsum payment and the other is a recurring contributions
(maintenance). Usually the respondent with means will have a recurring obligation.
The applicant and the children are entitled to be maintained at a comparable standard to
the standard they were enjoying while living with the respondent provided it is within the
respondents means.
Barras v Barras (supra)
Davies v Davies (1980) ZLR 141
3.

Application for Custody or Access pendente lite

This is where the applicant is applying for an interim order of custody or access of the
minor children pending the final determination of the matrimonial mater. The basis of the
decision is the best interests of the children. The court usually avoids unnecessary
changes of custody meaning that the parent who has defacto custody will remain with the
children until the matter is finalised. The application can be combined with application
for contribution towards costs and maintenance pendente lite.
Chamber Application
Application for an urgent interdict.
An interdict is an order prohibiting or restraining someone from doing a particular act or
ordering someone to do a positive act to remedy an unlawful state of affairs for which
he/she/it is responsible.
Classification of Interdicts
There are two ways of classifying interdicts
(i)
looks at what the interdict require someone to do
(a) prohibitory the interdict prohibiting the person from doing wrong.
(b) mandatory interdict interdict which orders someone to act to remedy a
wrongful state of affairs for which he/she is responsible.
(c) Restitutory interdict which orders the person to restore possession of
property to a person who is unlawfully deprived of his property.
(ii)

It is classified on whether the order is temporary or final

(a)
a final interdict is order to secure a permanent end to an unlawful state of
affairs;

64

(b)

temporary/interlocutory interdict is an order granted pendente lite inorder

to secure the rights of the applicant pending the outcomeo f either
contemplated or existing litigation.
Requirements for final interdict
(a)
(b)
(c)

The applicant should establish a clear right clearly established in law

Applicant should show that he has either suffered actual injury or has a reasonable
apprehension of injury.
Applicant should show that the is no other ordinary remedy by which he or she
can be protected in the same way as by an interdict.

See Setlogelo v Setlogelo 1914 AD 221 at 227

Flame Lily Investment Co (Pvt) Ltd v Zimbabwe Salvage and Anor 1980 ZLR 378
Neptune (Pvt) Ltd Venture Enterprises HH 127/89
Requirements for Interlocutory Interdict
(a)

a right which though prima facie established is open to some doubt. (b) and (c)
are the same as in final interdict.
(d)
the injury must be irreparable
(e)
the balance of inconvenience must favour the applicant
N.B Authorities are the same as in final interdict and also Chikore v Nyamukapa & Ors
HH 267/90
For a final interdict in so far as the right is concerned the interdict should not be granted
on application proceedings unless the facts as stated by the defendant together with the
admitted facts in the applicants affidavit justify the granting of such an order.
See Stellenbosch Farmers v Stellenvale Winery 1957 (4) SA 234 interlocutory
interdict.
See Webster v Mitchell 1948 (1) SA 1186 WLD
The applicant was seeking an order restraining the respondent from alienating, dealing
with and racing a race horse pending the action to be instituted by him. The applicant
claimed ownership of the horse and the respondent was disputing the claim. The
applicant had allowed the horse to be registered in the name of the first respondent and
later on on the respondents wife.
Held: The right to be set out by an applicant for a temporary interdict need to be shown
by a balance of probabilities. If it is prima facie established though open to some doubt
that is enough pg 1189. The proper;./ manner of approach is to take the facts as set out by
the applicant together with any facts set out by the respondent which the applicant cannot
dispute and consider whether having regard to the inherent probabilities the applicant
could on those facts obtain final relief at a trial. The facts set out in contradiction by the
respondent should then be considered. If serious doubt is thrown on the case of the
applicant he could not succeed in obtaining temporary relief for his right prima facie
established may only be open to some doubt.

65

Flamelily Investment (Pvt) Ltd v Zim Salvage and Anor ZLR 378.
The applicant sold certain mining claims to the first respondent for $25 000 payable by a
deposit of $10 000 and in 3 months instalments of $5000. The agreement stipulated that
the applicant was entitled to cancel the agreement notice in the event of the first
respondents fault. First respondent refused to accept cancellation. First respondent
defaulted and the applicant gave notice of cancellation and asked first respondent to
vacate mining claims. First respondent refused to accept cancellation and alleged
fraudulent misrepresentation. First respondent said it was prepared to abide by the
contract. The applicant sought a temporary interdict to restrain the respondents from
continuing with mining operations pending the determination of its claims for
cancellation of contract.
Held: The court set out the requirements for a final and temporary interdict. The court
was in line with Setlogelo case. The applicant had shown a prima facie right and met the
other requirement for a temporary interdict. The court also held that since the balance of
convenience issue had not been raised by the respondent, the applicant was entitled to the
relief sought.
On the issue of injury (apprehension or actual) there are two cases which emphasizes that
the injury should be of a continuing nature. If its a one off event then the remedy for the
applicant is remedies for injury suffered and not an interdict.
See Performing Right Society (Ltd) v Berman & Anor 1966 RLR 209
The plaintiff sued the defendant claiming an interdict for infringement of copyright and
damages. The defendant had caused or authorized the performance of the plaintiffs
musical works at a night club. The night club was subsequently closed when the liquor
licencing board refused to renew its licence.
Held: this injury was of a continuing nature because the night club was now closed.
Held: the interdict sought by the plaintiff was a normal remedy for infringement where
the plaintiffs rights and the breach of them are clearly established where the defendant
does not claim to be entitled to perform the musical works without a licence from the
plaintiff and where the defendant was not given an undertaking not to repeat the
infringement. For the plaintiff to succeed the circumstances should not be such that there
is no likelihood for future infringement occuring. The plaintiff foes not have to provide a
positive proof of likelihood of repetition of infringement.
Held: the defendants were likely to repeat the infringement and the interlocutory
interdict was granted.
Performing Rights Society v Butcher & Anor 1972 (2) RLR 362
The facts were almost similar to the above except that it was an application and the
second respondent was insolvent.

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Held: The facts that the second respondent is now an unrehabiliated insolvent is no
reason for thinking that he will not commit similar future infringements nor is it an
obstacle to the granting of an interdict restraining him form indulging in such behaviour
pg. 365-66.
Remedy as a Requirement
See Reserve Bank of Rhodesia v Rhodesia Railways 1966 RLR 541
The applicant sought an interdict preventing the respondent from carrying any good in
transit from Zambia and vice versa until or unless the respondent made certain
arrangements about the receipt of moneys to which the respondent was entitled for
carriage of the goods. The proceedings were brought by petition (chamber application).
A rule nisi was granted but a temporary interdict was refused pending the return day.
Three days after the rule nisi was granted the Minister of Transport made an order under
Emergency Powers (control of goods and services) Reg. 1966 which achieved the same
objections as would have been achieved by an interdict. On the return date the
respondent argued that an interdict was no longer necessary because an alternative
remedy was available to the applicant.
Held: The interdict should not be granted because of the prerequisites to the granting of
an interdict that is the absence of similar protection by an ordinary remedy was not
satisfied. The court was also of the view that the Ministers order was a more effective
remedy than the interdict and that the interdict sought might be an embarrasing conflict
between the Ministers order. The application for an interdict was refused.
See Coleman v Bristow 1976 (1) RLR 97
An application for an interdict restraining the respondent form exercising certain hunting
rights on the applicants farm without the applicants permission. The parties had entered
into an agreement permitting the hunting but a dispute had arisen as to the number of
animals which could be shot. The applicant was granted a rule nisi which operated as a
temporary interdict. The applicant argued that he was entitled to control the respondents
operations by virtue of a provision in the Parks and Wildlife Act of 1975. The parties had
entered into their agreement prior to the enactment of the Act. Respondent argued that
the applicant had the following alternative remedies:
(i)
to apply to the Minister to act in terms of s66 of the Parks and Wildlife Act.
(ii)
A claim for damages
(iii)
Criminal prosecution
Held: these were not adequate remedies in terms of applying to the Minister the curt
noted the minister had not acted and it was not possible to know whether the applicant
would be successful in moving the minister to act. In respect to claiming of damages and
prosecution the court noted that these claims would not prohibit respondent from
infringing applicants rights.
Held: An attempt to prosecution has been unsuccessful. The interdict was granted.

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Rights Requirements
See Bull v Minister of Justice and Anor 1955 (2) SA 682
It confirmed Webster v Mitchell
See Zim Music Rights Associaiton v ZBC HH 468/88
See Georgias v Zambezi Safari Ranch (Pvt) Ltd HH 71/90
On the issue of balance of convenience the court will look at who is more likely to be
inconvenienced by the granting of the interdict. If the respondent is to be inconvenienced
more than applicant the interdict will not be granted.
Procedures
(i)
(ii)
(iii)

If applying for final interdict use court application and if its extremely urgent do it
ex parte.
With interlocutory interdict use court application and if extremely urgent use
chamber application ex parte
If you do it ex parte you do not get a final order but a provisional order
(temporary interdict) operates as a temporary-temporary interdict.

Test 2 1/6/04 2-4 pm Tuesday (optional)

Special pleas and interdicts
PROVISIONAL SENTENCE 04
It is a procedure which is designed to enable the plaintiff who sues on a liquid document
to obtain relief without proceeding to trial. The purpose was clearly explained in
Lesotho Diamond Works (1973) (Pvt) Ltd v Lury 1975 (2) SA 140
The plaintiff sued the defendant for provisional sentence on two cheques backdated
25/01/94 for R2000 and 600 respectively. Both cheques had been dishonoured because
the defendant had stopped payment. The defendant opposed the provisional sentence
proceedings on two grounds:
(i)
the plaintiff being a peregrine had not furnished him with security
(ii)
the diamonds that he purchased from the plaintiff for 5400 would have been
worth R11 500 of they were flawless but because were not flawless they were
worth R8 745 thus giving rise to a counter claim of R2 950. The plaintiff did no
deny the allegation that the diamond was flawless and did not reply to the
defendants opposing affidavit. The plaintiffs counsel contented reply was
unnecessary because they were no indications that that counter claim arose from
the transaction to which the cheques related and the validity of the cheques had
not been challenged. Therefore he defendant had no probability of success in his
counterclaim.
Held: The two transactions were connected and this could be deduced from the
defendants affidavit. On the issue whether the defendant was limited in his defence to
challenging the validity of the cheques or he could establish the existence of a larger

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challenge i.e challenge the transactions on which the instruments formed a part. The
court relied on Memel Board of Executors v Lardinar 1930 OPD 197, the procedural
methods of provisional sentences is no magic want where - with the disarm prospective
defendants or dispel all opposition thereto but it is a well recognised long standing and
often used mode of obtaining speedy relief where the plaintiff is armed with a liquid
document. The purpose of provisional sentence is to avoid the more expensive,
cumbersome and often dilatory machinery of an illiquid action. P. 144. The conclusion
therefore defendant was entitled to raise the counter-claim as a defence and also the
defendant had established a probability of success.
F O Kollberg (Pty) Ltd v Atkinsons Motors Ltd 1970 (1) SA 660. The court said, the
purpose of provisional sentence proceedings is to enable the plaintiff to receive prompt
payment without having to wait for the final determination of the dispute between the
parties. 662.
Requirements to be Satisfied.
(i)
The plaintiff must be suing on a liquid documen
(ii)
The defendant must be unable to adduce such counter proof or evidence as will
satisfy the court hat 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 is a document which contain the following characteristics:
(i)
it must be signed by the defendant or authorized rep or be deemed in law
acknowledged by the debtor.
(ii)
The document must send money it must create an obligation to pay money.
(iii)
The amount of the debt must be fixed and definite on the face of the document.
No extrinsic evidence would be allowed to prove the debt. There are certain
exceptions where extrinsic evidence would be allowed.
(a)
extrinsic evidence may be allowed on ancilliary items which is ancilliary o he
obligation i.e bank cheques, insurance premiums etc.
See Prudential Building Society v Reynders 1941 WLD 29
(b)

When payment of the debt is unconditional 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 payment of the debt.
See Rich & Ors v Lagerwey 1974 (4) SA 748 AD
The plaintiffs sued he defendant for payment of R5000 due in terms of a written
deed of sale. In the deed of sale the plaintiffs sold to the defendant the entire
issued share capital of a company called Home Film Centre (Pty) Ltd. The
sellers entitlement to the purchase price was conditional upon its fulfilment of
certain obligations as included holding of a meeting of directors and shareholders,
resignation of certain officials from the company, passing of the resolution and
delivery of certain documents in relation to shares. The plaintiffs applied for

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provisional sentence which was applied in WLD. The defendant appealed

successfully to the TPD and the plaintiff further appealed. The defence raised by
the defendant was that the summons was defective because the plaintiff did not
allege that they had performed their obligations nor did they tender perfomance of
the same.
Held: Simple conditions precedent are not a bar to 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 that, the onus shifts to the
defendant to contradict the allegations made by the plaintiff.
Examples of simple conditions were given as delivery or transfer of script; giving
of notice before payment by the debtor is due; where payment becomes due by
reason of the debtors failure to fulfil the terms of a contract such as failure to pay
interest on due date.
The court went on to give a general definition of simple: it connotes a condition
of 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
p. 755.
Conclusion
Appeal was dismissed because the document on which the plaintiff was suing was not a
liquid document (deed of sale). What was conditional was not the payment of the debt
but the debt itself.
Procedure in Terms of Rules R20
The plaintiff who has a liquid document has to claim provisional sentence R20. The
plaintiff uses a special summons for provisional sentence.
R21 gives the requirements of the summons. In terms of R22 the form used if form no. 4
and no. 5
Rule 23 a copy of the liquid document should be served with the summons.
Rule 24 sets out additional requirements where the claim is based on a mortgage bond.
Rule 25 gives the defendant a response to the summons of a provisional sentence. The
summons for provisional sentence actually calls upon the defendant to satisfy the
plaintiffs claim or failing which to file papers to oppose the claim for provisional
sentence R25(1) file a notice of opposition and do in form 29A. which is supported by
one or more supporting affidavits indicating why provisional sentence should not be
granted. From then on, the procedure is the same as opposed applications and O32 shall
mutatis mutandis apply R25(2).
What is it that the defendant should establish
(i)
show that the probabilities of success are against the plaintiff.

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See Maimba v Nyagura HH 394/84

The plaintiff and the defendant entered into a contract for dale whereby the defendant
sold he plaintiff a residential property in Harare. The plaintiff was supposed to deposit
$3000 and thereafter pay monthly instalments of $140. The defendant was apparently
overpaid by a total of $2 429.00 to which was then added by a claim of $76 for legal
costs making a total of $2 505.99. The defendant signed an acknowledgement of debt
agreeing to repay that amount by an initial payment of not less than $500 and
subsequently monthly instalments of not less than $300. The defendant did not make any
payment and the plaintiff instituted proceedings for provisional sentence. The defendant
defence to the provisional sentence was that she had been mistakenly adviced by her
estate agent that she had been overpaid whilst she was owed $7 158.43 by the plaintiff.
She claimed the right to set off this amount against the plaintiffs claim.
Held: set off was not possible because the plaintiffs debt was long term whereas the
defendant owed was actually due. Such a set off would amount to a unilateral variation
of contract of sale.
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 p. 4
Conclusion: The application for PS was granted because the defendant had not
discharged her onus.
There are exceptions for the principle that onus lies with the defendant (I) where he
denies the signature on the acknowledgement of debt the onus shifts on to the plaintiff to
prove the signature on a.o.d.
See Donkin v Chiadzwa HH 217/87
The plaintiff issued summons for provisional sentence against the defendant for he sumo
f $10 000 due in terms of a.o.d. The defendants response was an affidavit in which he
denied that the signature on the acknowledgment of debt was his or that he ever borrowed
money form the plaintiff. The plaintiff filed an answering affidavit with supporting
affidavits from witnesses who saw the defendant signing a.o.d.
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 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 written notice to the Registrar the court
will give final provisional sentence judgment which disposes of he matter finally. If the
defendant is unsuccessful in opposing PS the court will give a judgment but within one
month after satisfying the judgment of the defendant voluntarily or within one month of
attachment made under a writ of execution the defendant may not satisfy the judgment

71

the defendant may enter appearance to defend. The matter will proceed as a contested
acion R28.
If the defendant does not enter appearance to defend within one month the judgment
becomes final. R28.

When the plaintiff want to execute the judgment given should provide security even if
the defendant demands security R31.
In all other circumstances the court may order security by the plaintiffs in case it 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. R32.
Where the judgement becomes final and security has been provided, security falls
away R28/32. If the judgment is granted and defendant enters an appearance to
defend, the provisional summons should stand as the plaintiffs 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 P.S is refused the court will
order the matter to proceed to trial and the summons of PS shall stand as an ordinary
summons and the defendant will be required to enter appearance to defendant within
5 days of the courts judgment. Thereafter the matter will proceed as an ordinary
action unless the court gives other directions R34.

INTERPLEADER 03
Interpleader proceedings can be instituted by an applicant who holds property or has
incurred a liability in respect of which there are two or more claimants and these
claimants are making adverse claims. Generally the parties to interpleader proceedings
are divided into two:
(i)
deputy sheriff can institute interpleader proceedings in respect of property
attached by him and a third party alleges that the property is his and not of
judgment
(ii)
debtor other claimants means any other person who is holding property or has a
liability for which they are facing adverse claims/

Purpose was explained in Bernstein v Visser 1934 CPD 270 @ 272. interpleader is
a form of procedure whereby a person who is a stakeholder of other custodian of
movable property to which he lays no claim on his own rights but to which two or
more other persons lay claim may secure that they shall fight out their claim among
themselves without putting him to the expense and trouble of an action/actions. Pg
272-3

Procedure

Applicant would give the notice to the parties and the notice would state the nature of
the viability, property or claim which is the subject matter of the dispute and it will
call upon the claimants to deliver particulars of the claim in the form of a notice of
72

opposition with supporting affidavit(s) it should also state that the applicant is
applying for the courts decision as to his liability or the validity of the respondents
claim R207.
The applicant would deliver with the notice an affidavit and in that affidavit state:
(i)
they claim no interest in the subject matter in dispute other then the charges
and costs.
(ii)
That they do not collude with any of the claimants
(iii)
That they are willing to deal with or act in regard to the subject mater in
dispute as the court may direct R. 208
(iv)
R206 gives duties of the applicant in relation to the subject mater pending
decision by the court. If the subject mater is merely 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 opposed applications R209.

Powers of the Court R210 (2)

(i)

If a party is in default and they dont 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 cant decide the issue on paper then the court can order that any
claimant be made a defendant in an action already commenced in respect of the
subject matter in dispute or if there is no action concerned the court may order a
trial and the court will decide which claimant shall be the plaintiff and which one
should be the defendant.

How does the court make such decisions?

If its property attached by the deputy sheriff and the property was in the possession of the
judgement debtor then the court will usually order the third party who is claiming the
property be the plaintiff because it is assumed that prima facie that the property in
possession of the judgment belongs to the judgment debtor.
See Bruce NO v Josiah Parks and Sons (Pvt) Ltd 1971 (1) RLR 154
Bruce NO v de Rome and Anor HH 109/89
Greenfield NO v Blignaut 1953 SR 73

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It involved an impounded bull. The two parties claimed ownership of the bull and the
court was unable to resolve the matter on papers and ordered matter to go to trial. It
failed to decide who the owner was.
Held: Each party must be a plaintiff as they are. It made a complicated decision that one
party must seek declaration that the bull was his and the other party was to seek a
counter-claim that the bull was his.
If a defendant in an action institutes interpleader proceedings the proceedings will be
stayed until court makes the decision on the interpleader R211.

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