Notes on jurisdiction

Every Magistrates Court has jurisdiction at general or customary law in

respect of S11(1) of the Magistrates Court Act.

(a) Persons

(i) Any person residing, carrying on business or employed within the

province.
(ii) Any partnership with business premises or any member whereof
resides within the province.
(iii) Any person in respect of any proceedings incidental to any
action/proceedings instituted within the Court by such person i.e by
bringing an action before the Magistrates Court the plaintiff would
have submitted to the jurisdiction of the Magistrates Court.
(iv) Any person, regardless of where he resides/carries on
business/employed, if the cause of action arose wholly within the
province.
Cases
NYANDORO v SITHOLE & ORS 1999 (2) ZLR 353 (H)

The applicant was served with a notice of eviction on 21 April by the third respondent. He was also
served at the same time with a copy of an ex parte application wherein an order had been granted in
chambers by the fourth respondent. The third respondent wanted to evict him on the basis of this
order granted ex parte on 27 April 1999 with no provision for him to anticipate the return date
which was given as 8 June 1999.

One of Applicant’s arguments was that the magistrate who dealt with the matter had no jurisdiction
at all. The applicant, who is the defendant in the main case, resided in Bulawayo, which is in
Matabeleland Province. The cause of action arose in Bulawayo. The Provincial Magistrate in Harare,
which is in Mashonaland Province, had no jurisdiction. He sought an order declaring as void the
order granted by the magistrate.

The application was opposed by the first and second respondents.

Court held that:

A magistrates court does not have civil jurisdiction over a defendant not resident or carrying on
business within its province unless the cause of action arises wholly within the province. The fact
that the plaintiff resides within the province is irrelevant. Nor may a magistrates court grant an order
for eviction in respect of premises not situated within its province.
(b) Causes of Action

(i) Liquid claims in the amount prescribed by the rules together with
interest thereon, (See also (g) re interest + costs)($1000 maximum
value)
(ii) Delivery/transfer/cancellation of agreement for any property where
value is in the amount prescribed by the rules ($ 2000 maximum
value)
(iii) Ejectment, unless the right to occupation exceeds prescribed by the
rules ($2000 value)
(iv) Matrimonial or maintenance matters in terms of the Customary
Marriages Act 5:07 or Matrimonial Causes Act Cap 5:13 ($ maximum
value)
(v) Guardianship and custody in terms of the Customary Marriages Act
(customary marriage)
(vi) Validity effect or interpretation of oral wills in terms of the Wills Act
cap 6:06 – subject to S14(2)
(vii) In all other cases apart from the above where the value does not
exceed the prescribed amount, unless even with respect to i. to iv.
The defendant has consented.

(b) Except for actions in terms of S14, where parties have agreed the
Court
(c) should have jurisdiction.

(d) If two claims are combined but each would have been within the
jurisdiction.
(e) Claim for confirmation of an interdict or arrest granted pendente lite
is joined in summons for any other relief *see also S12 re: tamquam,
spoliation, attachments and interdicts ($50 maximum value)
(f) Where the claim is for the balance of an account and is within the
jurisdiction even though the whole account may have exceed the
jurisdictional limit.
(g) Where findings on a matter beyond the jurisdiction are necessary,
the Court’s jurisdiction is not otherwise ousted were the
amount/relief claimed and within the jurisdiction. Interest on
capital, costs or alternative relief should not be
(h) considered in deciding whether the claim is within the jurisdiction.
(i) Plaintiff may abandon explicitly a part of his claim to bring it within
the jurisdiction.
(j) Plaintiff may deduct what he admits to owing Defendant to bring his
claim within jurisdiction.
(k) Splitting of a claim to bring it within the jurisdiction is not permitted.
(l) ‘action”, “claim” and “summons” include “claims in reconvention”.
And Plaintiff and Defendant include “in reconvention).
2. Province shall be construed as a reference to the regional division
for which a regional court was established.

3. A court having jurisdiction in respect of the person shall have

jurisdiction where the person owes a debt in terms of the Income
Act 23:06or Debt Adjustment Tax 5/1965 irrespective of the value of
the amount due.

13. Attachment to found or confirm jurisdiction against Non-Zimbabwe

resident as long as the claim is within the jurisdiction (maximum
value $50).
Grobler v Boshoff 1988 (2) ZLR 447 (HC)

Cases

GREENICE (PVT) LTD v KHAN 2000 (2) ZLR 55 (H)

The appellant company sought the ejectment of the respondent from the farm she occupied. The
farm had been mortgaged to the appellant as security for loans advanced to the company of which
the respondent and her late husband were directors. The loans were not repaid, the company was
liquidated, and the farm transferred to the appellant. When the appellant sought the eviction of the
respondent without due process, she sought an interdict from the magistrates court restraining the
appellant from evicting her, pending the determination, by the High Court, of the validity of the
transfer of the farm. A rule nisi was issued and subsequently confirmed. The only issue on appeal
was whether the magistrates court had jurisdiction to deal with the matter. The magistrate had
ruled that he had jurisdiction, on the basis that the rental value of $8 000 assessed by the
respondent was less than the jurisdictional limit then applicable of $10 000.

Held that

Held, th

at the respondent’s application in the magistrates court was clearly predicated on her right to
occupy the farm. That right was disputed by the appellant, and in that situation the jurisdiction of
the magistrates court depended on the value to the occupier of the right of occupation.

Held, further, that the value of such occupation must be assessed by a number of factors, not only
by the rental that might be payable for the property. The value is the economic advantage to the
occupier. In this case, the value of the occupation far exceeded the “thumb suck” rental value she
had given it. In addition, she had some 20 hectares under crop. Consequently, the magistrates court
did not have jurisdiction to deal with the matter.

See also
Khan v Rooknodien 1916 CPD 411

Malherbe v Britstown Municipality 1949 (1) SA 281 (C)

Munsamy v Govender 1950 (2) SA 622 (N)

van der Westhuizen v Peterson 1922 TPD 412

The jurisdiction of the court in actions of ejectment is provided in s 11 of the Magistrates Court Act
[Chapter 7:10]. The section provides in subs 1(b)(iii) that the court shall have jurisdiction:

“in actions of ejectment against the occupier of any house, land or premises situate within the
province:

Provided that when the right of occupation of any such house, land or premises is in dispute
between the parties, such right does not exceed such amount as may be prescribed in rules in clear
value to the occupier.”

There are two requirements to the exercise of the court’s jurisdiction under this section: that there
is a bona fide dispute as to the right of occupation (Khan v Rooknodien 1916 CPD 411 at 414) and
that the right of occupation is worth $10 000 to the occupier. In respect of the first requirement
Erasmus in The Civil Practice of the Magistrates Courts in South Africa states the following at p 63:

“All that need to be established . . . is the existence of the dispute, and that it is a bona fide dispute.
The magistrate is not called upon to inquire into the merits of the dispute; indeed he cannot do so. It
is obviously not competent for the magistrate first to decide that the defendant has no right of
occupation and then to decide, for this reason, that the court has jurisdiction to determine the
question whether the defendant has a right of occupation.”

S12, of the Act

“(1) Subject to the limits of jurisdiction prescribed by this Act, the court may grant
against persons and things orders for arrest tamquam suspectus de fuga, attachments, interdicts and
mandamenten van spolie.

Also, In s 11(1)(b)(iii), the legislature has required that a clear right of occupation must be shown to
exist. By “clear” is meant “over and above the rent payable”. See Erasmus op cit at p 64 where the
learned author lists a number of principles from decided cases on this topic. Some of these principles
are germane to a consideration of the present appeal. Among these are:

“(ii) What must be shown is the clear value of the right to the occupier. This is not
necessarily the same thing as the value to the defendant (respondent in casu), for they need not be
the same persona.
 (iii) the value to the occupier of a right of occupation of immovable property is the

Page 61 of 2000 (2) ZLR 55 (H)

economic advantage (my emphasis) which he enjoys from the exercise of that right . . .

(iv) ...

(v) Through the approach in assessing the value of the right of occupation to the
occupier is an objective one, there are matters personal to the occupier which must be taken into
account.

(vi) The rental of the premises is not necessarily the correct measure for the
computation of the value of occupation, for the rent is a measure of value to the landlord, not
necessarily to the occupier. A tenant who occupies a flat which is subject to rent control may find
that he cannot rent comparable premises elsewhere except at double his present rent; to his
landlord the value of the right of occupation is the rental which he receives, but to the tenant it is at
least double that figure.”

These principles reduce the argument to saying that the rentals payable cannot be an indication of
the value of the right of occupation to the occupier. With those principles I am in complete
agreement.

On Transfer of immovable property see

MUNEMO v MUSWERA 1987 (1) ZLR 20 (SC)

The respondent leased a house from the Government under a “lease-to-buy” contract in 1956. He
occupied the house with his son (the appellant) until 1977, when his son forcibly evicted him. In
1979 he sought an order for his son’s eviction from the house but the court, not realising that the
house was being leased from the Government, dismissed the respondent’s claim on the basis that
his son was a co-owner. In 1982 the respondent paid off the balance of the purchase price and
acquired the house from the Government under a deed of grant. Once again respondent sought an
order for his son’s eviction, and this time the son pleaded that the issue of co-ownership was res
judicata between the parties by virtue of the judgment in 1979, and counterclaimed for the transfer
to himself of an undivided half-share in the property. The trial magistrate rejected the plea of res
judicata and granted respondent the eviction order he sought, but refused to decide the
counterclaim on the ground that he did not have jurisdiction to do so. The son appealed.

Held that

that the magistrate should have decided the counterclaim since, notwithstanding s 8(1) of the Deeds
Registries Act [Chapter 139], magistrates courts have jurisdiction to adjudicate on the transfer of
immovable property, subject only to the value limitation prescribed in s 13(1)(b)(ii) of the
Magistrates Court Act [Chapter 18]- and that limitation can be waived by the parties’ consenting to
the jurisdiction of the magistrates court, as the parties had done in the instant case.
Parties can agree to waiver value limitation by consent in writing.

Section 14: Limits to Jurisdiction

1. A Magistrates Court shall have no jurisdiction wherein is sought

(a) (i) Dissolution of a marriage other than registered

customary

marriage.

(ii) Judicial separation and proprietory order in matrimonial

matters unless they are registered customary
marriages.
(iii) Declaration of nullity of marriage other registered
Customary Marriage.

(b) The validity of interpretation of a written will or other

testamentary document.

(c) The status of a person with respect to mental capacity.

(d) Specific performance without the alternative of damages

except:

(i) To order the rendering of an account where the claim is

within the jurisdiction ($ 2000value)
(ii) To order the delivery/transfer of property whose value is
within the rules ($ 2000maximum value)

(e) A decree of perpetual silence

(f) Provincial sentence

(g) A declaratory order where there is no consequential relief.

 Except

(a) To make a declaratory order as to the fact of a marriage

in adultery damages claim or value of necessaries
supplied to the wife.

(b) To make a declaratory order as to affiliation in suit to

recover maintenance lawfully supplied to a child.

(c) To make a declaratory order as to the fact of

marriage/affiliation in an enquiry in terms of the
Maintenance Act 5:09

* As long as these declarations will not bind present or future rights

(2) No jurisdiction on oral wills unless:

(a) Testator normally resident in province when he made the

will/died
(b) Testator born within the province
(c) Majority (by number/value) of beneficiaries normally resident
within the province at Testator’s death
(d) Will made within the province
(e) Immovable property disposed by will situated within the
province.

* Province also refers to regional division.

15 (1) Where counterclaim exceeds jurisdiction Court to say

proceedings

to enable competent Court to be appraised of matter.

(2) Failure to file counterclaim in competent court = further stay

or dismissal of application.
(3) Failure to further file counterclaim, or if Defendant’s
counteraction is stayed, dismissed/withdrawn, abandoned or
absolution in competent Court = dismissal of counterclaim
upon application.
*S73 – Monetary limits Rules SI 21 of 2009

S24 of the Act

See Gundani v Kanyemba 1988(1) ZLR 226 (S)

the return of service of an officer of the court, whether he be the sheriff, the deputy sheriff or the
messenger, was to be accepted as prima facie proof of what was stated therein, capable of being
rebutted by clear and satisfactory evidence.

SUMMARY PROCEDURES

These are steps taken to curtail proceedings so that a matter is finalized

sooner.

DEFAULT JUDGEMENT (Order 11)

O1R5 (1) “a judgement given in the absence of the party against whom
it is made.”

O11R2 Where the defendant, after service of summons had neither

consented to judgement nor entered appearance to defend
with the prescribed time, Plaintiff may lodge a written request
for judgement to be entered against Defendant.

 Differentiate between REQUEST AND NOTICE. There is no

need to serve the former.
 Default judgement request shall be for any sum claimed (not
exceeding amount stated in summons), or other relief,
together with interest and costs. Interest will be at rate
claimed in the summons Prescribed Rate of Interest Act cap
8:10.

# Compare to Order 11 of the High Court Rules

O11R3 Where a Defendant has entered appearance but has failed to

deliver a plea in terms of O16, default judgment may be
applied for, after delivery of due notice to so file his plea, in
the same manner as in R2.

O11R4 Judgment shall be entered by the Clerk of Court where R2 and

R3 are satisfied.

CASES

default judgment — late appearance of entry to defend — defendant automatically barred —

plaintiff entitled to apply for default judgment — even if indications are that defendant intends to
defend the matter, onus is on him to apply for condonation or late appearance or removal of bar

HPP Studios (Pvt) Ltd v Assd Newspapers of Zimbabwe (Ptv) Ltd 2000 (1) ZLR 318 (H)

application for — default judgment previously granted — where judgment obtained on default basis
court must be satisfied that judgment was properly entered — summons for damages for
negligence not a claim for a debt or a liquidated claim — default judgment inappropriate —
application for civil imprisonment refused

National Ins Co of Zimbabwe Ltd v Dhlamini 1999 (2) ZLR 196 (H)

Default judgment

— appeal against — defaulting party seeking to appeal against judgment before first seeking
rescission of default judgment — not permissible to do so
Ramvali Trust’s Trustees v UDC Ltd & Ors 1998 (1) ZLR 110 (S)

— grounds on which rescission may be granted — failure to enter appearance due to inactivity on
part of defendant’s legal practitioners — no reasonable explanation for such inactivity possible —
practitioner’s non-compliance with rules treated as non-compliance by defendant

Beitbridge RDC v Russell Construction Co (Pvt) Ltd 1998 (2) ZLR 190 (S)

Exceptions

1. R4(2) where a defective application has been entered, the Clerk of

Court shall require the Plaintiff to serve 48 hour notice on Defendant
to rectify the error (which must be clearly pointed out) before any
default judgment can be granted.
2. R4(4) where service of summons ahs been by post default
judgement cannot be entered unless the postmaster’s certificate is
filed together with the Messenger of Court’s returns that the letter
was duly delivered.
3. R4(5)(6)(7)(8) The Clerk of Court must refer to the court any request
for default judgment for
(a) damages – proof of damages
(b) Hire Purchase Agreement governed by Hire Purchases Act
14:09
(c) Liquid Document – the original of which must be filed of
record, or affidavit sworn to explain why it cold not be filed.
(d) Any other request, in which case the Magistrate may refuse
judgement, enter judgment on satisfactory proof, call upon
Plaintiff to produce written/oral evidence to support his claim.
(e) Or make any order as he thinks fit.

Several Defendants

R4(9) Plaintiff can request judgement against defaulting Defendant

without prejudice to his claim against the other Defendants.

CONSENT TO JUDGMENT

O11R1
1. A Defendant may consent to judgement by delivering a written
memorandum stating his consent and for that amount.
2. Where the consent is consequent upon a letter of demand or before
Messenger of Court has received instructions for service, it shall not
be necessary to serve summons and no costs of service are
chargeable against him.
3. Consent before expiration of time for appearance absolves
Defendant of judgment charges.
4. Where the consent is for portion of claim, then he may enter
appearance for balance and the matter may continue for that
balance notwithstanding judgment upon such consent.

O11R4

1)(a) Judgment by consent shall be entered by the Clerk of Court in terms

of the consent except that

7) requires the original liquid document or affidavit before

judgment can be entered.
8) (a) where a Clerk of Court has referred the matter to a
Magistrate

(b) The Magistrate may require the Plaintiff to provide

evidence that the consent has been signed by
Defendant and it is for the judgment sought,
(c) Enter judgment
(d) Refuse judgment
(e) Make such order as he thinks fit.

9) When one of several Defendants has consented to judgment,

then Judgment may be entered against him without prejudice
to plaintiff’s claim against the others.

Cases

Consent judgment

— rescission — justus error — stringent test applied

Mukundadzviti v Mutasa 1990 (1) ZLR 342 (HC)

PAYMENT INTO COURT O13

R1 Defendant may at any time pay into Court unconditionally the
amount on the summons and process stops, except for recovery of
costs not included in the payment.

NOTE: 1. The payment must specify the causes of action

otherwise it must be disregarded.

2. No consensus is required
- Brookmee v Rhodesia Railways 1956 R & N 51
1956 SA 562 (SR)
- Santam Insurance Company vs Lebenberg NO
and Anar 1976 (4) SA 312 (W)

R2 Defendant may without prejudice make an offer of settlement and

pay it into court, which Plaintiff may, within seven days of notice of
such payment, request delivery of same and further proceedings
will be stayed, save for the recovery of costs not included in the
payment.

NOTE: If Plaintiff refuses tender, but is unable to prove the amount,

he is still entitled to the full amount of tender.

Union Government vs Male 1943 AD 3

R3 Payment in terms of R1 and R2 shall be on notice delivered to

Plaintiff setting out the amount, stating whether its in terms of R1 or
R2, and if it is under R2, stating whether it includes both the claim
and costs.

R4 Clerk of Court shall pay out to Plaintiff monies paid into Court under
R1 and R2, except that under R2, the plaintiff has to request the
money first.

R5 Plaintiff entitled to recover costs up to date of payment into Court

except where under R2, the payment included costs.
R6. Where Plaintiff is unable to prove that he is entitled to more money
than was offered under R2, the Court shall first:

(a) Order payment of what is due to him less any order for
Defendant’s costs, and
(b) Give judgment for Defendant for costs incurred after payment
into Court, and
(c) Make any order it thinks just for costs prior to payment into
Court
Klein v Johannesbury City Council 1948 (3) SA 296 (A)

R7 If pleading tender, Defendant shall pay into court upon filing pleas,

if he’d not already paid to Plaintiff.

R8 Unless in terms of R4, money will be paid out only upon granting of
judgment or consent of parties.

R9 In a claim for damages/compensation, the amount of

tender/payment into Court shall not be disclosed to the Court or in
pleadings until the judgment, and an order for costs will only be
made after disclosure of tender/payment and R6 shall apply.

Vadivelu va South British Insurance Co. Ltd 1957 (2) SA 443

R10 If a year passes before payment has been made in terms of R2 or

R7, then unless the matter has been set down for trial, the Clerk of
Court shall refund the Defendant his money and if he is not found,
shall pay it into the guardian’s fund.

Payment into court pendente lite — no interdict sought — no legal or factual basis put forward
justifying order — order incompetent

Noormohamed v Patel 1987 (2) ZLR 324 (SC)

NOTE: Difference with Consent – no judgment.

Exception

— claim dismissed because successful exception taken — impropriety of where affected party could
allege further facts which would disclose cause of action

Adler v Elliot 198

8 (2) ZLR 283 (SC)

no cause of action disclosed — exception to plaintiff’s declaration on grounds that it did not disclose
a cause of action because statement failed to identify plaintiff — what plaintiff must allege

Taylor & Anor v Chavunduka & Ors 1995 (2) ZLR 22 (H)

— purpose of — procedures relating to

City of Harare v D & P Investments (Pvt) Ltd & Anor 1992 (2) ZLR 254 (S)

— successful exception to defendant’s plea — defendant must be given opportunity to amend plea

R M Ins Co (Pvt) Ltd v G C M (Pvt) Ltd 1993 (2) ZLR 407 (S)

Plea

O16

1.Defendant must
a. within seven days of entry of appearance
b. after delivery of documents in terms of O12
c. where summary judgement has been dismissed
d. where there is an order giving leave to defend
e. after dismissal of an exception or motion to strike out
f. after any amendment of the summons

Deliver a plea or answer to Plaintiff’s claim.

R2 What is a plea?

This is a statement by the Defendant where in he

(a) admits , denies confesses or avoids all the material facts alleged in
the summons, and
(b) he sets out clearly and concisely the nature of his defence and all
the material facts on which it is based.
Davidson v Standard Finance Ltd 1985 (1) ZLR 173 (HC)
NOTE:1. Once admission is made it may not be withdrawn unless the Court is
satisfied that it was made through a bona fide mistake, and the
prejudice to Plaintiff may be compensated by postponement or
order for costs.

Bulk Freight Services P/L vs Ministry of Defence S-124-91

* See Rule 7

Liquidator of M & C Hldgs (Pvt) Ltd v Guard Alert (Pvt) Ltd 1993 (2) ZLR 299 (H)

withdrawal of admissions — when permissible

Adler v Elliot 1988 (2) ZLR 283 (SC)

2. Nor is defendant permitted to make a bare denial

Neugebauer & Co. Ltd v Bodiker 1925 AD 316

3. Defendant’s plea must be such that Plaintiff is given sufficient

details to enable him to appreciate the true nature of the defence.
Van Zyl vs Barclays Bank 1933 OPD 23

R3 Where summons is served on the wrong person, that person must plead
though he were the correct defendant, and raise in his plea the defence
that he is incorrectly cited.

The matter of costs will follow the result, but the Court may allow, upon
application by Plaintiff, the summons to be amended and order it to be
served on the correct Defendant.

R4 It is a bare denial if Defendant denies liability without reference to the

facts he bases that conclusion.

requirement for defendant to deal specifically with plaintiff’s allegations — vague replies insufficient
to allow court to decide matter in favour of defendant

Coleman v Fazilahmed & Ors 1988 (2) ZLR 330 (HC)

Britz v Weidman 1946 OPD 144

Ekhada vs Dedza HH-4-91

 Defendant must deny specifically any of the allegations in the summons
either as a sole defence or in combination with any other consistent
defence.

R7 Every allegation by Plaintiff, which is inconsistent with plea, is presumed

to be

denied. The converse is also true.

Petersen v Parker S-196-88

DD Transport P/L vs Abbot 1988 ZLR 92(S)

The effect of an admission is that it cant be withdrawn unless granted by

the Court on reasonable explanation. It must also be bona fide. Therefore
the party making an admission cannot lead evidence to counteract it, and
the other party does not have to prove it.

R8 New defence emerging during trial: the court may allow the amendment of
a plea to include that defendant through oral submissions on such terms
as to the postponement and costs as the Court shall think fit.

purpose of — impropriety of raising defence that has not been pleaded

Keavney & Anor v Msabaekwa Bus Svcs (Pvt) Ltd 1996 (1) ZLR 605 (S)

Luxury Stores vs Shamva Service Station 11983 P/L S-122-88

Musadzikwa v Min of Home Affairs & Anor 2000 (1) ZLR 405 (H)

— extent to which parties are bound by pleadings — real dispute between parties not apparent from
pleading but thoroughly investigated during trial — court entitled to decide case on basis of real
dispute

failure to plead matter — claim for negligence arising out of motor accident — defendant’s plea
completely denying negligence and alleging that accident due to plaintiff’s negligence — whether
court entitled at trial to consider question of contributory negligence

Lewis v Mushangi & Anor 1999 (1) ZLR 506 (H)

R9 Any defence which can be adjudicated upon without the necessity of going
into the main case may be set down by either party on 7 days notice.
2. Plea to be dated and signed ITO O4

3. Contents of plea
The defendant, in his plea, shall—
(a) admit or deny or confess and avoid all the material facts alleged in the particulars to the summons; and
(b) clearly and concisely state the nature of his defence and all the material facts on which it is based.

-Provisions apply to a person who alleges that they have been cited as a
wrong defendant and enters appearance on that ground. R3

-Bare denial inadmissible R4

-Presumption of admission or denial of Plaintiff’s claim. R7

— accuracy — duty to plead material facts correctly and accurately

Davidson v Standard Finance Ltd 1985 (1) ZLR 173 (HC)

— admissions

— binding nature of — when court may disregard

Liquidator of M & C Hldgs (Pvt) Ltd v Guard Alert (Pvt) Ltd 1993 (2) ZLR 299 (H)

— purpose of — impropriety of raising defence that has not been pleaded

Keavney & Anor v Msabaekwa Bus Svcs (Pvt) Ltd 1996 (1) ZLR 605 (S)

— read more strictly in High Court than in inferior courts

Wolfenden v Jackson 1985 (2) ZLR 313 (SC)

EFFECT OF PLEADING THAT PARTY RESTRICTED TO WHAT THEY

HAVE PLEADED. CANNOT RAISE ANY OTHER NEW DEFENCE

— requirement for defendant to deal specifically with plaintiff’s allegations — vague replies
insufficient to allow court to decide matter in favour of defendant

Coleman v Fazilahmed & Ors 1988 (2) ZLR 330 (HC)

Exception/motion to strike out to plea R10

-A plaintiff may, within seven days of the delivery of the plea or further particulars and with or before
delivering a reply, deliver particulars of an exception to the plea, or a motion to strike out in terms of R14
Grounds for exception to plea R11

(a) that it does not disclose a defence to the plaintiff’s claim;

(b) that it is vague and embarrassing;
(c) that it does not comply with the Requirements of this Order.

Court uphold an exception R12

(1) The court shall not uphold any exception to a plea unless it is satisfied that the plaintiff would be
prejudiced in the conduct of his case if the plea were allowed.
(2) A plaintiff raising an exception that the plea does not comply with the requirements of this Order shall
set out particulars of the alleged non-compliance.
(3) The court shall not uphold an exception that the plea is vague and embarrassing unless the plaintiff has,
prior to taking exception, by delivery of a notice given the defendant an opportunity of removing the cause
of the complaint.

Motion to strike out defences R14

Grounds
(a) any of two or more defences which, not being pleaded in the alternative, are mutually inconsistent;
(b) any argumentative, irrelevant, superfluous or contradictory matter which may be stated in a plea.
(2) The provisions of rule 9 shall, mutatis mutandis, apply to the delivery of particulars of a motion to
strike out.

Notice of set down of hearing within seven days R15

Effect O16, court may give judgement to Plaintiff where Defendant does not amend after being given
notice to do so.

Cases

Summary judgement O15

(1) Where a defendant has entered an appearance to defend, the plaintiff, whether in convention or
reconvention, may apply to the court for summary judgment on any claim in the summons which is only—
(a) on a liquid document; or
(b) for a liquidated amount in money; or
(c) for the delivery of specified movable property; or
(d) for ejectment; or
(e) for any two or more such matters as are described in paragraph (a), (b), (c) or (d);
in addition to costs.

Time R1SR2
An application in terms of subrule (1) shall be made on not less than seven days’ notice delivered not more
than seven days after the date of the defendant’s appearance to defend,

R1SR3

the plaintiff shall deliver with such notice—

(a) if the claim is illiquid, a copy of an affidavit, made by himself or by any other person who can swear
positively to the facts—
(i) verifying the cause of action and the amount claimed, if any; and
(ii) stating that in his belief there is not a bona fide defence to the action and that appearance has been
entered solely for the purpose of delay;
(b) if the claim is liquid, a copy of the liquid document on which the claim is founded.

Procedure on application R2

(1) Upon the hearing of an application for summary judgment, the defendant may—
(a) pay into court to abide the result of the action the sum sued for, together with such sum for costs as the
court may determine; or
(b) give security to satisfy any judgment which may be given against him in the action; or
(c) satisfy the court by affidavit then filed, which may be supported by viva voce evidence or otherwise,
that he has a good prima facie defence to the action.
(2) At the hearing of an application for summary judgment—
(a) no evidence may be adduced by the plaintiff otherwise than by—
(i) the affidavit of which a copy was delivered with the notice; or
(ii) production without evidence of the liquid document sued upon;
(b) the plaintiff may not cross-examine any witness called by the defendant, but any such witness may be
questioned by the court and re-examined by the defendant.

Cases

summary judgment — application for — what should be alleged by applicant

Chindori—Chininga v National Council for Negro Women 2001 (2) ZLR 305 (H)

defence to — defendant must establish that has good prima facie defence — not enough to make
bald assertions or vague generalisations

Hales v Doverick Invstms (Pvt) Ltd 1998 (2) ZLR 235 (H)

plaintiff obtaining summary judgment for portion of total amount claimed and then seeking to bring
separate action for remainder — whether res judicata applies

Interceptor (Pvt) Ltd v Trison Construction (Pvt) Ltd 1998 (1) ZLR 195 (H)

bona fide defence to application for — what constitutes — illiquid claim for amount substantially
less than main claim and no payment into court made of difference — not a bona fide defence

de Aguiar v de Almeida 1989 (2) ZLR 165 (HC)

multiple causes of action in one summons — application for summary judgment in respect of some,
but not all, of the causes of action — whether summary judgment may be granted

Wilmot v Zimbabwe Owner Driver Organisation (Pvt) Ltd 1996 (2) ZLR 415 (S)
SPECIAL PLEAS

1. Plea in Bar – normally brought where Defendant believes Plaintiff lacks

locus standi in which he is barred from bringing the claim.

Melvin v Eblen 1948 (1) SA 550

2. Plea of Tender O16 R5

Subject to Order 13

a. Plea to specify items of Plaintiff’s claim to which the tender relates.

b. Payment into Court must be made on delivery of plea, if not already
paid to Plaintiff for the plea to be admissible.
c. Will be paid out to Plaintiff upon the Court’s order or consent of both
parties.
d. Shall imply an undertaking to pay costs to date of tender unless
specifically disavowed.
e. Be valid without a tender/payment into Court of the amount at
which costs may be taxed.

* Tender must be coupled with an admission of liability

Bloch vs Cohen 1933 TPD 1000

* If plaintiff refuses to tender and fails to establish his claim for even
the amount tendered, he is entitled to judgement for the full
amount tendered but would have to bear all the costs from the date
of the tender. Tender to be accompanied by payment into Court to
be valid.

Van Greens v Brand 1918 CPD 440

3. Plea of Payment into Court O16 R6

Also
 Particulars of payment into court shall show whether it was in terms of
O13 R1 or R2, or O16 R5. If it is not so specified, it shall be presumed to
be by way of tender after action is brought.

N.B There are two types of SPECIAL PLEA

1. Plea of Statement

Dilatory Plea – meant to delay proceedings until some temporary

bar to the claim has been removed.

ii. Declinatory Plea – meant to quash proceedings e.g lack of

jurisdiction, prescription

(Plea in Bar) – res judicata etc

Banda & Ors v ZISCO 1999 (1) ZLR 340 (S)

— res judicata

— action previously dismissed but issues not determined — defence not applicable

Maparura v Maparura 1988 (1) ZLR 234 (HC)

TRIAL

Duty to begin — defamation trial

Tekere v Zimbabwe Newspapers (1980) Ltd & Anor 1986 (1) ZLR 275 (HC)

Pre-trial conference — purpose — need for parties to be fully prepared for trial — duties of judge at
pre-trial conference

Doelcam (Pvt) Ltd v Pichanick & Ors 1999 (1) ZLR 390 (H) (SPECIAL PLEA AS WELL)

— of civil trial — requirements for urgent set-down

Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71 (HC)

— proof — opposed application — notice setting down application for hearing not containing proof
of service of notice of set down on respondents — effect

Gondo v Sec for the Public Service & Anor 1997 (1) ZLR 281 (H)

Default — party — defendant — failure to appear at trial — allegations of negligence put in issue by
pleadings — onus still on plaintiff to prove negligence

Mpehlani v Expert Panel Beaters & Spray Painters (Pvt) Ltd 1993 (2) ZLR 212 (S)

litigant allegedly unaware of trial date — nature of onus on applicant

Uzande v Katsande 1988 (2) ZLR 47 (HC)

— “sufficient cause” test to be used in preference to traditional test based on justus error

Shinga Express (Pvt) Ltd v Hubert Davies (Pvt) Ltd 1989 (2) ZLR 45 (HC)
— good cause — claim that default not wilful — failure to appear because of reasonable belief that
courts not sitting — default not wilful

Fletcher v Three Edmunds (Pvt) Ltd 1998 (1) ZLR 257 (S)

— failure to discover documents after court order — grounds for dismissal of action — fault of legal
practitioner

(Supiya v Mutare District Council & Ors 1985 (2) ZLR 53 (HC)

use of documents discovered as privileged

Levy v Tune-O-Mizer Centre (Pvt) Ltd 1993 (2) ZLR 378 (S)

Presentation of Evidence