Contents

INTRODUCTION ........................................................................................................ 8
Abbreviated References .............................................................................................. 8

SECTION 1 — ASPECTS APPLYING THROUGHOUT THE RULES........................... 9

Terminology and Definitions ...................................................................................... 9
Distances .............................................................................................................. 9
Time Periods ......................................................................................................... 9
Dies Induciae ....................................................................................................... 9
Execution ............................................................................................................. 9
Of Process ......................................................................................................... 9
Pleadings ............................................................................................................... 9
Meaning ........................................................................................................... 9
Close of ............................................................................................................ 9
Service ................................................................................................................... 9
Address for ....................................................................................................... 9
Deliver ........................................................................................................... 10
Of Process ...................................................................................................... 10
Of Documents which are not process ............................................................ 10
Proof of Service by registered post................................................................... 10
Time of Service by registered post ................................................................... 10
Substituted Service ......................................................................................... 10
Notice ................................................................................................................. 10
Meaning .......................................................................................................... 10
Process............................................................................................................ 10
Process of the Court ............................................................................................ 10
Meaning .......................................................................................................... 10
Execution of .................................................................................................... 10
Security .............................................................................................................. 11
Jurisdictional Limits ............................................................................................... 11
Financial limits : s 11 of Magistrates Court Act.................................................. 11
Persons : s 11(1)(a) .............................................................................................. 11
Causes where jurisdiction ................................................................................... 11
a) General and Customary Law matters.............................................................. 11
(i) Financial amounts up to $10 000 ........................................................... 11
(ii) Trial by mutual consent .......................................................................... 12
(iii) Combined claims ..................................................................................... 12
(iv) Balance of account .................................................................................. 12
(v) Finding on matter beyond jurisdiction..................................................... 12
(vi) Non-inclusion of items ............................................................................. 12
(vii) Abandonment of part of claim ................................................................. 12
(viii) Deduction of amount owed by plaintiff ................................................... 12
(ix) Splitting of substantive claim in excess of jurisdiction ............................ 12
(x) Income tax ............................................................................................... 13
(xi) Orders for arrest tamquam suspectus de fuga, attachments,
interdicts and spoliation orders ............................................................... 13
b) Specific Customary Law matters ..................................................................... 13
Causes of action in respect of which magistrates do not have jurisdiction .......... 13
Filing, issuing and service of documents ................................................................. 15
Order 7 ................................................................................................................ 15
Persons under legal disability ........................................................................ 15
 Sumons, warrant and order of court ............................................................... 15
Process other summons, warrant or order of court ........................................ 16
Service by messenger .................................................................................... 16
Time of service ................................................................................................ 16
Claim for order affecting liberty of a person .................................................... 16
Service on persons [O 7 R5(2)] ....................................................................... 16
Service on organisations [O7 R5(2) & (6)] ....................................................... 16
Service of same process on two or more persons [O7 R7]................................ 16
Service of process for ejectment ...................................................................... 17
Proof of service ................................................................................................ 17
Case Number ........................................................................................................... 17

SECTION 2 — THE PRE-TRIAL STAGE ................................................................. 18

Summary of Procedures ........................................................................................... 18
Main steps which plaintiff will take to obtain judgment ........................................... 19
Withdrawal of action by plaintiff .............................................................................. 19
Defendant wishing to defend action ......................................................................... 20
Defendant deciding to settle or not to proceed with defence .................................... 20
Letter of demand ...................................................................................................... 21
Summons commencing action [Order 8] .................................................................. 21
Nature of ............................................................................................................. 21
Details required ................................................................................................... 21
Issuing ............................................................................................................... 22
Withdrawal before service .................................................................................... 22
Service ................................................................................................................. 22
Proof of service .................................................................................................... 23
Against State ....................................................................................................... 23
Withdrawal after service ...................................................................................... 23
Courses available to defendant after service of summons ........................................ 23
Consent to judgment by defendant [Order 11] ......................................................... 23
Procedure ............................................................................................................ 23
Stage up to which may consent ........................................................................... 23
Consent to part of claim ...................................................................................... 24
Procedure after consent ....................................................................................... 24
Default judgment [Order 11] .................................................................................... 24
When available .................................................................................................... 24
Entry of ............................................................................................................... 25
Additional requirements in certain situations ..................................................... 25
Rescission of default judgment (Order 30 read with
s 39 of Magistrates Court Act] ................................................................................. 26
Who can apply? ................................................................................................... 26
Procedure ............................................................................................................ 26
Time limit ............................................................................................................ 27
Respondent’s response to application.................................................................. 27
Does not oppose .............................................................................................. 27
Opposes .......................................................................................................... 27
Evidence at hearing ............................................................................................. 27
What is wilful default? .................................................................................... 27
Appearance to defend [Order 10].............................................................................. 27
Procedure for entering ......................................................................................... 27
Time limit for delivering ....................................................................................... 28
Detail required..................................................................................................... 28
Requiring the plaintiff to give security [Order 33 Rule 9] ......................................... 28
Circumstances in which request can be made .................................................... 28
Procedure for making .......................................................................................... 29
 When request can be made ................................................................................. 29
Non-compliance ................................................................................................... 29
Consent to application......................................................................................... 29
Courses open to defendant after he has entered appearance to defend ................... 29
Request by defendant for further particulars to the summons and for
copies of documents [Order 12]................................................................................ 30
Procedure for making request.............................................................................. 30
Time limit for delivering request .......................................................................... 30
Failure to comply................................................................................................. 30
What defendant required to do after compliance ................................................. 31
Exception to summons [Order 14] ........................................................................... 31
Procedure for excepting ....................................................................................... 31
Time limit delivery of particulars of exception ..................................................... 31
Permissible exceptions ........................................................................................ 31
Special provisions relating to exception that summons vague
and embarrassing ........................................................................................... 32
Prejudice to defendant in conduct of defence ...................................................... 32
Non-compliance [Order 8] .................................................................................... 32
Hearing................................................................................................................ 32
Decision............................................................................................................... 32
Plea [Order 16] ......................................................................................................... 33
What is plea? ....................................................................................................... 33
Time limit for delivering ....................................................................................... 33
Service ................................................................................................................. 33
Contents .............................................................................................................. 33
Abandonment of defence by defendant [Order 20] ................................................... 34
Claim in reconvention (counterclaim) [Order 9]........................................................ 34
What is a claim in reconvention?......................................................................... 34
Procedure for making .......................................................................................... 34
Time limit for delivering ....................................................................................... 35
Claims in excess of jurisdiction ........................................................................... 35
Courses open to plaintiff after entry of appearance ................................................. 35
to defend but before defendant has pleaded............................................................. 35
Notice to plead [Order 11 Rule 3(a)] ......................................................................... 35
Summary judgment [Order 15] ................................................................................ 35
When can be applied for ...................................................................................... 35
Claims for which it can be sought ....................................................................... 36
Procedure for applying......................................................................................... 36
Hearing of application ......................................................................................... 37
Withdrawal of action after entry of appearance to defend [Order 20] ....................... 37
Procedure ............................................................................................................ 37
Costs ................................................................................................................... 37
Subsequent action after withdrawal .................................................................... 38
Courses open to plaintiff after plea .......................................................................... 38
Request by plaintiff for further particulars of defendant’s plea [Order 12] ............... 38
Procedure ............................................................................................................ 38
Time limit for delivery of notice requesting further particulars ............................ 38
Compelling compliance ........................................................................................ 38
Response of plaintiff after compliance ................................................................. 39
Exception to plea [Order 16 Rules 9-16] .................................................................. 39
Permissible exceptions ........................................................................................ 39
Procedure ............................................................................................................ 40
Time limit ............................................................................................................ 40
Hearing................................................................................................................ 40
Outcome .............................................................................................................. 40
Reply [Order 17] ....................................................................................................... 40
When need for reply ............................................................................................ 40
Close of pleadings [Order 17 Rule 4] ........................................................................ 40
Procedure after close of pleadings ............................................................................ 41
Discovery of documents [Order 18] .......................................................................... 41
Discovery ............................................................................................................. 41
Party seeking ....................................................................................................... 41
Party from whom sought ..................................................................................... 41
Non-compliance ................................................................................................... 41
Inspection and copying of books and documents ................................................ 42
Request for further particulars [Order 12] ............................................................... 42
Further particulars for trial ................................................................................. 42
Party seeking ....................................................................................................... 42
Party from whom sought ..................................................................................... 42
Failure to supply ................................................................................................. 42
Pre-trial conference [Order 19(1)] ............................................................................. 43
Date of ................................................................................................................. 43
Pre-trial conference memorandum ..................................................................... 43
The conference .................................................................................................... 43
Non-attendance at conference and failure to comply with directions .................. 43
Outcome of Pre-trial Conference .......................................................................... 44
Applications for dismissal [Order 20] ....................................................................... 44
Payment into court by defendant [Order 13] ............................................................ 44
Types of payment ................................................................................................ 44
Unconditional payment of amount claimed ......................................................... 44
Payment as offer of settlement............................................................................. 45
Recovery of costs ................................................................................................. 45
Subsequent effect of rejection of offer .................................................................. 45
Disclosure of tender or payment into court ......................................................... 45
Reasons for payments into court ......................................................................... 46

SECTION 3 — THE TRIAL STAGE [ORDER 19] ..................................................... 47

Set-down [Order 19 Rule 2]...................................................................................... 47
Place of trial ............................................................................................................. 47
Non-appearance of parties ....................................................................................... 47
Clarifying issues and shortening proceedings .......................................................... 48
Short statement of issues .................................................................................... 48
Key factual issue ................................................................................................. 48
Argument solely on law ....................................................................................... 48
Key legal issue ..................................................................................................... 48
Sequence of argument ............................................................................................. 48
Burden on plaintiff .............................................................................................. 48
Burden on defendant........................................................................................... 48
Burden on both parties on different issues ........................................................ 49
Burden in dispute ............................................................................................... 49
Evidence adduced out of proper sequence ........................................................... 49
Witnesses ................................................................................................................. 49
Judgment................................................................................................................. 49
Types of judgment ............................................................................................... 49
Costs ................................................................................................................... 50
Enforcement of judgment ......................................................................................... 50
Warrant of execution against property [s 20 of the Magistrates Court Act
read with Order 26 of the Rules] .............................................................................. 50
The warrant ......................................................................................................... 50
Soonest the warrant may be issued ..................................................................... 51
 Latest the warrant may be issued ....................................................................... 51
Issuing of............................................................................................................. 51
Warrant in respect of immovable property........................................................... 51
Execution of ........................................................................................................ 51
Property which cannot be attached ..................................................................... 51
Security ............................................................................................................... 52
Claims to property by other people ...................................................................... 52
Sale of attached movable goods ........................................................................... 52
Sale of immovable property ................................................................................. 52
Garnishee order [s 33 of the Magistrates Court Act and Order 29 of Rules] ............. 52
When available .................................................................................................... 52
Procedure for applying......................................................................................... 53
Supporting affidavit ............................................................................................. 53
Against the State ................................................................................................. 53
Processing of Application ..................................................................................... 53
Opposition to confirmation of order ..................................................................... 54
Opposition from judgment debtor........................................................................ 54
Opposition from garnishee .................................................................................. 55
Confirmation of provisional order ........................................................................ 55
Safeguards in respect of salary and wages .......................................................... 55
Variation and setting aside of provisional order .................................................. 55
Civil imprisonment [ss 26-32 of the Magistrates Court Act and
Order 27 of Rules] .................................................................................................... 56
Purpose of ........................................................................................................... 56
When civil imprisonment proceedings available .................................................. 56
Procedure ............................................................................................................ 56
Maximum periods ................................................................................................ 57
When will not be awarded ................................................................................... 57
Suspension of decree ........................................................................................... 57
Costs ................................................................................................................... 58
Enforcement ........................................................................................................ 58

SECTION 4 — APPEALS [ORDER 31]..................................................................... 60

Right of appeal ......................................................................................................... 60
Request for judgment ............................................................................................... 60
Noting of appeal ....................................................................................................... 60
Time period for noting ......................................................................................... 60
Procedure for noting ............................................................................................ 61
Details in Notice .................................................................................................. 61
Further statement from magistrate .......................................................................... 61
Abandonment of judgment by respondent ............................................................... 61
Prior agreement that decision not appealable .......................................................... 61
Execution of judgment pending appeal .................................................................... 61
Application for set down of appeal ....................................................................... 61

APPENDICES
Check list of time limits for various procedures ....................................................... 63
Table of prescription periods for different types of debt ........................................... 64
Summary of State Liabilities Act .............................................................................. 65
Summons commencing action ................................................................................ 70
Consent to judgment ............................................................................................... 71
Appearance to Defend ............................................................................................. 71
Request for Default Judgment ................................................................................ 72
Notice of Application for Rescission of Judgment .................................................... 73
Notice of Consent .................................................................................................... 74
Notice to Oppose Application .................................................................................. 75
Request for Particulars of Summons ....................................................................... 76
Notice of Application for an Order to Compel the Delivery of
Further Particulars .................................................................................................. 77
Notice of Application for Judgment ......................................................................... 78
Particulars of Exception to Summons ..................................................................... 79
Notice of Set Down of Exception .............................................................................. 80
Notice to Plead ........................................................................................................ 81
Request for Judgment in Default of Plea ................................................................. 82
Notice of Application for Summary Judgment ......................................................... 83
Affidavit in Support of Application for Summary Judgment .................................... 84
Application for a Garnishee Order .......................................................................... 85
Supporting Affidavit ................................................................................................. 86
Garnishee Order ..................................................................................................... 87
Summons for Civil Imprisonment ............................................................................ 88
Warrant of execution against property 89

Introduction

This Guide is an expanded and extensively amended and updated version of Mike Oelschig’s article “Civil
Procedure in the Magistrates’ Court in Chronological Order” published in the 1977 (2) RLJ 1. The work to
revise and update this Guide was done by Geoff Feltoe, Ellen Sithole and J Reid Rowland. In compiling
this Guide the authors found it useful to refer to the chapter entitled “Procedural Law — Civil” in the
Paralegal Training Manual produced by the Legal Resources Foundation.

At the end of the Guide, there are the relevant forms used in the magistrates court and a consolidated
set of the rules incorporating all the amendments up to those contained in Statutory Instrument No. 136
of 1997.

This Guide is intended for use by Legal Practitioners, Magistrates and by Law Students.

Abbreviated References

Throughout this Guide the following abbreviated references will be used:

“The Magistrates Court Act” — to refer to the Magistrates Court Act [Chapter 7:10]

“The Rules” — to refer to the Magistrates Court (Civil Rules), 1980 (SI 290 of 1980)

“O” — to refer to an Order in the Rules

“R” — to refer to a Rule in the Rules

“File” — to refer to file of record with the Clerk of Court

“P” — Plaintiff

“D” — Defendant

Section 1

Aspects applying throughout the Rules

Terminology and Definitions

Distances

All distances must be calculated over the shortest route reasonably available in the circumstances: O1
R5(3).

Time periods

Where anything is required to be done under the rules within a particular number of days or hours, a
Saturday, Sunday or public holiday shall not be reckoned as part of such period: O1 R5(2).

Dies induciae

The time period within which the defendant must answer a claim: O8 R1.

Execution

Of process

Except as otherwise provided in the rules, all process must be executed by the messenger of the court:
O2 R1.

Pleadings

Meaning

The documents in which the parties in a civil case describe their claim and defence to the claim. The
pleadings set out in summary form the material facts on which the parties rely in support of their claim
or defense to the claim.

Close of

After the exchange of documents setting out the claim and defence as provided for in the rules has
taken place the pleadings are closed and the matter goes for trial.

Service
Address for

An address for service must always be a physical service address. A physical address is a street address
not a box number. An address for service must be an address within 15 kilometres of the court house
but if there are less than 3 legal practitioners practising independently of one another within 15
kilometres from the court-house from which the summons was issued, the address for service may be
further than 15 kilometres from the court-house;

Deliver

To file of record with the Clerk of Court and to serve a copy on the other party: O1 R5(1).

Of process

Except as otherwise provided in these rules, all process must be served through the messenger of the
court: O2 R1.

Where the messenger serves documents, the return of service is the proof of service.

Of documents which are not process

Service of any notice, request, statement, or other document which is not process of the court may be
effected by delivery by hand at the address given in the summons or the appearance to defend as the
address for service or by sending it to the postal address which has been so given. A party who serves a
document upon the other party should always make a note of the date, time and place of service and he
should also ask the other party to sign for the document so that he can prove that the other party
actually received the document.

Proof of service by registered post

An acknowledgement of receipt of an enveloped signed by the person to whom the envelope was
addressed and furnished in terms of by-laws made under the Post and Telecommunication Services Act
is prima facie proof of such service: O7 R7A(4). The person serving a document by registered post must
therefore keep the post office registered slip as proof that he has served the document upon the other
party.

Substituted service

Where service of a document cannot be effected by hand or by registered post, the court may allow
service to be effected by publishing a copy of the document in a newspaper circulating in the area: O7
R8.

Notice

Meaning

Notice means written notice: O1 R5(1).

Process

For the purposes of Order 7 “process” is defined as any document which is required to be served on any
person in terms of these rules: O7 R1(1).

Process of the court

Meaning

“Process of the court” is defined in O1 R5(1) as “any process in the magistrates court which is issued by
the Clerk of Court”.

Execution of

Except as otherwise provided in these rules, all process must be executed by the messenger of the
court: O2 R1.

Security

To “give security” is defined in O1 R5(1) as “to give security to the satisfaction of the Clerk of Court by:

a) payment into court of the amount in question; or

b) the giving of a security bond therefor either by a party with someone as his surety who is
approved by the clerk of the court or by two or more persons who are so approved”.

Jurisdictional Limits

Financial limits : s 11 of Magistrates Court Act

A Magistrates Court cannot hear civil cases if the amount of money or the value of the thing claimed is
more than $10 000 (see SI 155 of 1993).

All magistrates courts have jurisdiction to try civil cases as set out below:

Persons : s 11(1)(a)

Apart from any other jurisdiction assigned to the court by the Magistrates Court Act or any other Act,
the court will have jurisdiction in relation to a person if that person

— resides in province;

— carries on business in province;

— is employed in province;

— any person in respect of any proceedings incidental to any action or proceedings instituted in
the court by such person;
— whether or not the person resides in, carries on business in or is employed in province, if the
cause of action arose wholly within the province.

The court will have jurisdiction in respect of a partnership if

— its business premises are situated in the province; or

— any member of the partnership resides in the province.

Causes where jurisdiction

a) General and customary law matters

(i) Financial amounts up to $10 000

In respect of actions determinable under general or customary law magistrates have jurisdiction to deal
with cases involving financial amounts up to $10 000.

In terms of the proviso to s 11(1)(b) a magistrates court will have jurisdiction to try an action or case
otherwise beyond the jurisdiction because they would be exceeding these financial limits if the
defendant has given his consent in writing to the action or the case being so tried.

(ii) Trial by mutual consent

In respect of all actions except those set out in s 14, a magistrates court will have jurisdiction to try the
matter if both parties agree to such trial by a memorandum signed by them or their legal practitioners: s
11(1)(c)

Note: In respect of the situations which follow, “action”, “claim” and “summons” include “claims in
reconvention”, and “plaintiff” and “defendant” include “plaintiff in reconvention” and “defendant in
reconvention”: s 11(1)(k)

(iii) Combined claims

If two or more claims, each based on a different cause of action, are combined in one summons, a
magistrates court has the same jurisdiction to decide each claim as it would have had if each claim had
formed the sole subject of a separate action: s 11(1)(d)

If a claim for the confirmation of an interdict or arrest granted pendente lite is joined in the same
summons with a claim for relief of any other character, the court will have the same jurisdiction to
decide each such claim as it would have had if each claim had formed the sole subject of a separate
action, even though all the claims arise from the same cause of action: s 11(1)(e)

(iv) Balance of account

In actions where the sum claimed is within the jurisdiction but what is claimed is the balance of an
account, the court may inquire into and take evidence where necessary on the whole account, even
though such account contains items and transactions exceeding the amount of jurisdiction: s 11(1)(f)

(v) Finding on matter beyond jurisdiction

Where the amount claimed or other relief sought is within the jurisdiction, it will still have jurisdiction
even though the court, where necessary, gives a finding upon a matter beyond its jurisdiction: s 11(1)(g)

(vi) Non-inclusion of items

In considering whether a claim is within the jurisdiction, no application for interest on the principal sum
or for costs or for general or alternative relief will be taken into account: s 11(1)(g)

(vii) Abandonment of part of claim

In order to bring a claim within the jurisdiction, a plaintiff may in his summons explicitly abandon part of
his claim. The abandoned part of the claim is thereby finally extinguished, with the proviso that if the
claim is upheld in part only, the abandonment is deemed first to take effect upon that part of the claim
which is not upheld: s 11(1)(h)

(viii) Deduction of amount owed by plaintiff

In order to bring the claim within the jurisdiction of the court, the plaintiff may in his summons deduct
from his claim, whether that claim is a liquidated or unliquidated claim, any amount admitted by him as
due by himself to the defendant: s 11(1)(i)

(ix) Splitting of substantive claim in excess of jurisdiction

A substantive claim exceeding the jurisdiction of the court may not be split with the object of recovering
this in more than one action if the parties to all such actions would be the same and the point in issue in
all such actions would be the same: s 11(1)(j)

(x) Income tax

Notwithstanding anything in s 11, any amount whatsoever due and payable under the Debt Adjustment
Act, 1965 (No. 5 of 1965) or the Income Tax Act [Chapter 23:06] is recoverable in a magistrates court
having jurisdiction in respect of the person to whom such amount is payable: s 11(3).

(xi) Orders for arrest tamquam suspectus de fuga, attachments, interdicts and spoliation orders

See s 12.

b) Specific customary law matters

In terms of s 11(1)(b)(iv) and (v), magistrates courts have jurisdiction to hear divorce actions, custody
disputes and maintenance cases involving customary law. They also may deal with disputes involving
oral wills: s 11(1)(b)(vi). In more detail magistrates courts may deal with

— actions in which a decree of divorce, judicial separation or nullity of a marriage solemnized in

terms of the Customary Marriages Act [Chapter 5:07], including actions relating to the division,
apportionment or distriution of movable and immovable assets of spouses or former spouses of such
marriages and the payment of maintenance in terms of the Matrimonial Causes Act [Chapter 5:13];

— actions relating to the guardianship and custody of children of mariages solumnized in terms of
the Customary Marriages Act;

— subject to s 14(2) of the Magistrates Court Act, cases relating to the vailidity, effect or
interpretation of oral wills made in terms of s 11 of the Wills Act [Chapter 6:06].

But magistrates will not have jurisdiction to deal with disputes involving oral wills unless:

• the testator of the will was normally resident in the province when he made the will or when he
died; or

• the testator was born within the province; or

• the majority, by number or value, of the beneficiaries under the will were normally resident
within the province when the testator died; or

• the will was made within the province; or

• in respect of a will disposing of an interest in immovable property, the property is situated in the
province.

Causes of action in respect of which magistrates do not have jurisdiction

In terms of s 14 Magistrates Court Act magistrates do not have jurisdiction to deal with these cases:

— dissolution of marriages other than marriages under the Customary Marriages Act;

— judicial separations in respect of marriages other than those under the Customary Marriages
Act;

— declarations of nullity in respect of mariages other than those under the Customary Marriages
Act;

— actions involving the validity of written wills and other testamentary documents;

— actions in which the status of a person in respect of mental capacity is sought to be affected;
— actions in which specific performance of an act without an alternative of payment of damages is
sought except the rendering of an account in respect of which the claim does not exceed $10 000, and
the delivery or transfer of property, movable or immovable, not exceeding $10 000 in value;

— actions seeking a decree of perpetual silence;

— actions for provisional sentence;

— actions seeking a declaration as to any existing, future or contingent right or obligation, where
the person seeking the declaration does not or cannot claim any relief consequential upon such
declaration.

A magistrates court may, however, make the following determinations:

— A determination of the fact of marriage during the course of an action for damages for adultery
with the wife of the plaintiff or the value of necessaries lawfully supplied to the wife of any person;

— A determination of the question of affiliation during the course of an action for the amount of
maintenance lawfully supplied to the child, legitimate or illegitimate, of any person;

— A determination of the fact of marriage or upon the question of affiliation, without binding
rights in the future, during the course of an inquiry held under the Maintenance Act.

These determinations must be recorded and they may be put in evidence in any subsequent action
between the same parties in the same court if these matters again come into dispute.

Filing, Issuing and Service of Documents

Parties in civil cases have to file the pleadings and notices with the Clerk of Court. In addition, they
almost always have to serve a copy of the pleading and notices they file on the other side. When the
rules require that a party “deliver” a document he must file it with the Clerk of Court and serve a copy
on the other side: O1 R5(1). Some documents may only be served by the messenger of the court or the
deputy sheriff. Certain pleadings, orders and warrants have no legal authority or effect until the court
issues them.

To file a document a party must deliver it to the Clerk of Court. To file of record simply means to file the
document at the Clerk of Court’s office so that a record can be kept of it at court. A court official accepts
the document, stamps the original and any copies of it, files the original in the court’s file for that case
and returns the copies to the party filing it so that he can serve them. There must therefore always be as
many copies as there are parties to be served plus a spare copy which can be kept by the person who
has filed the document.

Some pleadings, orders and warrants must be issued by the court before they can be served. Documents
which must be issued by the court are process of the court and can only be served by a court official.
Documents like a summons, a summons for civil imprisonment, a warrant of execution, a garnishee
order, a warrant for civil imprisonment and an interdict must be issued by the court and must be served
by a court official. After such documents are filed with the Clerk of Court, the court official accepting the
document must stamp it and must sign it on behalf of the Clerk of Court. Such documents are
incomplete and have no legal force if they are not signed by the court official. After signing and
stamping such documents the court officials keeps one copy and returns the others to the party filing
them for delivery to the messenger of court or the deputy sheriff for service on the other party.

Order 7

Order 7 deals with service of process.

In Order 7 “process” is defined as “any document which is required to be served on any person in
terms of these rules”.

Order 7 applies to the service of all process within Zimbabwe except to the extent that it is inconsistent
with any other provisions of these rules relating to the service of any particular process or any order or
direction given by the court in relation to the service of any particular process: O7 R2.

Order 7 sets out various rules relating to service. These are summarised below:

Persons under legal disability

Where the person is a minor or person under legal disability, service should be on the guardian, tutor,
curator or legal representative of such person: O7 R1(2).

Summons, Warrant and Order of Court

A summons, warrant or order of court must be effected by the messenger of court: O7 R3(1).

Process other than Summons, Warrant or Order of Court

Any process, other than a summons, warrant or order of court, may be effected either by the messenger
of the court or by the party or his legal practitioner or agent: O7 R3(2).

Service by Messenger

Where a party requires the messenger to serve process, he must deliver to the messenger a copy of the
process and enough copies as there are persons to be served: O7 R3(3).

Time of Service

Service of process is invalid if it is done between 10 p.m. and 6 a m. However, process for the arrest of
a person and process served by post, telegraph, telefacsimile or courier is valid whenever it is served: O7
R3(4).

Claim for order affecting liberty of a person

Service of an order affecting the liberty of a person must be effected by delivering a copy of the order to
that person personally: O7 R5(1).

Service on persons [O 7 R5(2)]

Where service does not have to be effected by the messenger, it may be served in these ways:

— by personal delivery to the person or his duly authorised agent;

— delivery to a responsible person at the residence or business or employment place of person on

whom service is to be effected or his chosen address for service;

— delivery to person’s legal practitioner of record (except in respect of summons or order of

court);

Service on organisations [O7 R5(2) & (6)]

Special provision is made for service on various types of organisations.

With these bodies, service may be effected by delivery to a responsible person at the place of business
of the organisation or registered office. If this cannot be done then service can be effected as follows:

— in respect of corporate body , by delivery to a director or to the secretary or public officer of

body;

— in respect of a partnership, by delivery to a partner;

— in respect of clubs and associations, by delivery to chairman, secretary or similar officer.

Where service cannot be effected by delivery at the residence or place of business because these are
kept closed and no responsible person can be found upon whom to serve, despite diligent search,
service can be effected by leaving a copy of the process at places such as in the letter-box or on the
main door.

Service of same process on two or more persons [O7 R7]

Each of these persons must be served except

— in respect of spouses who are not judicially separated and where the process relates to jointly
owned or held property, the process may be served on either spouse;

— in respect of joint trustees of an insolvent estate, liquidators of a company, executors or

guardians, the process may be served on one of these persons.

Service of process for ejectment

If the only relief claimed, apart from costs, is an order for ejectment from premises or judgment for the
rent thereof and service cannot be effected in another valid manner, service may be effected by leaving
a copy of the process in such places as the letter-box or on the main door of the premises in question.
O7 R 7B.

Proof of service [07 R7C]

The proof that service has been effected is as follows:

— service by messenger, return of service or endorsement on process;

— service by legal practitioner or responsible person in his employ, certificate in Form No. CIV 6A;

— service by other persons, by affidavit;

— service by post, by a signed acknowledgement of receipt.

Case Number
Every civil case in the magistrates court has a reference number which is called the case number. When

a plaintiff files his summons the court official who issues it gives it a case number and opens a file for the

case. The official will write the case number on the top right hand corner of each copy of the summons

before he issues it. The plaintiff and defendant must write the case number on the top right hand corner

of the first page of all pleadings and notices which they subsequently file in their case. Section 2

The Pre-Trial Stage

Summary of Procedures

ACTION FROM PLAINTIFF ACTION FROM DEFENDANT

Letter of demand Claim not met

Summons

Ignore summons or
Consent to judgment or
Enter appearance to defend or
Request security for costs from P

If D enters appearance to defend, he may then

— Request further particulars

— Except to summons
— Deliver plea and make any claim in
reconvention

If D enters appearance to defend

then P may then
— before D pleads,

deliver notice to plead or

— Apply for summary judgment or
— Withdraw action

If D pleads P may then

— Request further particulars
— Except to plea
— Reply to plea

Main steps which plaintiff will take to obtain judgment

P sends letter of demand

D ignores

P issues summons

If D consents to judgment then P can obtain judgment

If D ignores summons then P can obtain default judgment

but D may be able to obtain rescission of default judgment

If D enters appearance to defend

If D does not plead

P gives notice to plead

P may apply for summary judgment if the appearance to

defend is entered to delay and D has no genuine defence

The court may grant or refuse summary judgment

D pleads

P excepts to plea
P requests further particulars
P replies to plea

Pre-trial conference

Trial

Court either gives judgment for P or gives

judgment for D or absolution

If judgment for D or absolution P may appeal

Withdrawal of action by plaintiff

Withdrawal

Before summons After summons After appearance

served served to defend entered

Defendant wishing to defend action

When D receives letter of demand

D will respond by denying claim or raising defence

When D receives summons D may

except to summons
request further particulars

D enters appearance to defend

D enters plea setting out defence

Trial

D presents case and argues not liable on claim

Appeal

D goes on appeal if believes magistrate wrongly found for P

Defendant deciding to settle or not to proceed with defence

When D receives letter of demand

D admits liability and pays the debt and the matter is settled

If a summons has been served on D he may

consent to judgment and judgment will be given against him

If D has entered an appearance to defend and has pleaded he may

admit all material facts and admit liability

abandon defence pleaded
 and this will result in judgment being given against him

D may make a payment into court

This may be an unconditional payment of the full amount

of the claim or an offer of settlement

Pre-trial conference

Parties arrive at settlement

If the matter has gone for trial

D may concede that he is liable and that he has no defence

Letter of demand

Most civil claims which go to the magistrates court will have started with a letter of demand.
The plaintiff or his legal representative will usually have sent a letter of demand to the
defendant stating what it is that the plaintiff is claiming from the defendant and warning him
that if the claim is not settled within a certain stated period of time, the plaintiff will issue
summons against the defendant. If the defendant fails to respond to the letter of demand then
a summons will be issued.

Summons commencing action [Order 8]

Nature of
A civil action in the magistrates court is instituted by a summons commencing action. This
summons from the plaintiff calls upon the defendant to answer the plaintiff’s claim within a
certain specified period of time. It does not require the defendant to appear in court.

Details required
In terms of Order 8 a summons must contain the following details:

— The full names, addresses and occupations of the parties to the action.

— The particulars of the claim. Where the summons contains more than one claim, the
particulars of claim and the relief sought in respect of each claim must be stated separately.

— The period within which the defendant must answer the claim. This period is known as the
dies induciae. This period must be not less than 7 days if the defendant is resident within the
province in which the summons is issued, and not less than 14 days if he is not: O8 R1(2).

— An address for service for the plaintiff. For definition of “address for service”, see section 1
of this Guide.

— The postal address of the plaintiff.

— The amount claimed for costs and court fees.

The summons must be signed by the plaintiff or his legal representative: O8 R2(1) as read with
O4 R1(1).

Where the plaintiff acts through a representative, no power of attorney need be filed. However,
the authority of any representative may be challenged by the other party: O4 R2.

In law a partnership is not a legal person and it has no separate legal existence apart from the
individual partners. However, O8 R6 allows a partnership to sue or be sued in the name of the
firm. This provision does not alter the law regarding partnerships nor does it imply recognition
of the partnership as a legal person. It is simply a rule of procedure. The rule goes on to
provide that the other party may by notice require particulars as to who the partners are so
that their names may be placed on record. The identification of the partners is important when
it comes to execution of the judgment because the judgment can only be enforced against the
individuals who make up the partnership and therefore their identities must be known.

The pro-forma summons form is set out in the forms section in this Guide.

Issuing
A summons commencing action must be issued by the Clerk.

Once the summons has been prepared and signed, it must be sent to the Clerk of Court for it
to be issued in terms of O8 R1(3). The summons must be signed and stamped. The original
summons must bear $25 in revenue stamps.

Once issued the Clerk of Court retains the original for his records [O8 R1(4)] and returns the
copies to the plaintiff. As many copies as there are people to be served, plus one, are then
delivered to the messenger of the court for service on the defendant: O7 R1.

Withdrawal before service

A summons may be withdrawn by the plaintiff by notice to the Clerk of Court before it has
been served: O20 R1(a). Such withdrawal will not be a defence to any subsequent action: O33
R5. This notice is not process and does not have to be served by the messenger of the court; it
may be served by the party either by hand or by registered post.

Service
The next step is for the summons to be served on the defendant.

A summons commencing action must be issued by the clerk of the court in terms of O8 R1(3).
It is therefore “process of the court” as defined by O1 R5 and therefore must be served through
the messenger of the court in terms of O2 R1.
The various methods and requirements for service are set out in Order 7. These are matters
which mainly are the concern of the messenger of court. However, the following points need to
be noted:

— Any service on a Sunday or public holiday or any service effected between 10.00
p.m. and 6.00 a.m. is invalid: O7 R4. This does not apply to service by post.

— Service by registered post is permitted in certain circumstances: O7 R7A. This method of

service can effectively reduce costs. The clerk of court may direct that service be by registered
post: O7 R7A(2)(b).

— Substituted service, such as by advertisement, may be ordered by the court on good cause
shown: O7 R8.

— If a summons is not served within 2 years of the date of issue or, having been served, the
plaintiff has not within 2 years taken further steps to prosecute the action, the summons will
lapse: O33 R10. This rule is subject to exceptions. See the proviso to O33 R10.

Proof of service
After the summons has been served, the messenger of the court will send proof of service to the
plaintiff together with one copy of the summons. The pro-forma for the messenger’s return is
set out in the forms section at the end of this Guide.

Against State
Where the action is against the State, O7A as read with the Fourth Schedule lays down upon
whom the notice of the intention to sue as required by the State Liabilities Act and the
summons is to be served.

Withdrawal after service

By notice to the Clerk of Court the plaintiff may withdraw the summons after it has been
served and after the expiry of the period specified within which an appearance to defend may
be entered without the defendant entering an appearance to defend: O20 R1(b). Such
withdrawal is not a defence to any subsequent action: O33 R5. The notice of withdrawal is not
process and does not have to be served by the messenger of the court; it may be served by the
party either by hand or by registered post.

Courses available to defendant after service of summons

After service of the summons on him or her the defendant may:

• consent to judgment; or
• ignore the summons completely; or

• enter an appearance to defend; or

• request the plaintiff to provide security for the costs of the action.
Consent to judgment by defendant [Order 11]

Procedure
The defendant can consent to judgment by filing with the Clerk of Court a written
memorandum setting out his consent and serving a copy on the plaintiff.

In terms of O11 R1 the defendant in an action may consent to judgment for the full amount
claimed or part of the amount claimed. This consent constitutes an admission of liability to pay
to the plaintiff the amount consented to. In order to consent to judgment the defendant must
deliver a memorandum in writing stating his consent to judgment, that is he must file it with
the Clerk of Court and serve a copy on the plaintiff: O11 R1(1). As consent to judgment is not
process it need not be served by the messenger of court; it may be served by the party by hand
or by registered post.

Stage up to which may consent

A defendant may consent to judgment at any time before judgment. If he consents to judgment
before service of the summons, then service of the summons will not be necessary and the
defendant will not have to pay the messenger’s fees for service: O11 R1(2). If he consents to
judgment after service but before the expiration of the period specified for entry of an
appearance to defend, he will not have to pay the judgment costs but he will have to pay the
costs of service: O11 R1(3). If the defendant decides to consent to judgment it is thus best that
he does so as early as possible so as to reduce the amount of costs he will have to pay.

Consent to part of claim

Where the defendant consents to judgment for only part of the amount claimed he may enter
an appearance to defend in respect of the balance: O11 R1(4).

Procedure after consent

Once the consent to judgment is filed of record the clerk of the court enters judgment for the
plaintiff in terms of the consent: O11 R4(1)(a). The clerk may, however, refer to a magistrate
any consent. The magistrate has the power, where there is doubt over this issue, to call for
evidence to be produced by the plaintiff that the consent has been signed by the defendant and
he has consented to the judgment sought: O11 R4(8). Before judgment will be entered where
the action is on a liquid document, the plaintiff must file the original document duly stamped,
or an affidavit setting out the reasons to the satisfaction of the court why the original
document cannot or should not be filed: O11 R4(7).

After judgment has been entered for the plaintiff, he may then enforce the judgment. See below
for how judgments are enforced.
Default judgment [Order 11]

When available
P can apply for default judgment if D neither enters an appearance to defend nor consents to
judgment within the time laid down for entry of the appearance to defend. It is not necessary to
serve a copy of the request for judgment on D.

A “default judgment” is defined in O1 R5(1) as “a judgment given in the absence of the party
against whom it is made”.

If on the expiry of the time specified for entering an appearance to defend, the defendant has
neither consented to judgment nor has entered an appearance to defend, the plaintiff may
lodge with the Clerk of Court a written request for judgment to be entered against the
defendant with costs: O11 R2. A copy of the request need not be served on the defendant.

If the plaintiff issued summons claiming a sum of money, he can request judgment with costs for
an amount not exceeding the amount claimed in the summons: O11 R2(a).

If the plaintiff had sought some form of relief other than damages, he can request that
judgment be entered granting that relief with costs: O11 R2(b).

Interest can also be claimed from the date of the summons. Interest is usually claimed a
tempore morae to the date of judgment at the rate specified in the summons, or, if no rate is so
specified at the rate for the time being prescribed in terms of the Prescribed Rate of Interest Act
[Chapter 8:10]: O11 R2 (25% since 10.9.93).

Entry of
If the conditions for a default judgment have been satisfied, judgment for the plaintiff will be
entered. Generally it is the Clerk of Court who will enter judgment for the plaintiff with costs in
terms of O11 R4(1)(b). However, the matter must be referred to a magistrate for judgment
where:

— The claim is for damages.

If the request is for default judgment on a claim for damages, the request for judgment
must be accompanied with some proof of the damages suffered. The normal practice here is for
the plaintiff to attach an affidavit to the request for judgment containing evidence of the nature
of the claim and the extent of damages suffered by him e.g. in respect of damage to a motor
vehicle an affidavit from a panel-beater setting out the costs of repairs. The plaintiff may also
furnish the court with oral evidence of the nature and extent of his damages. Based upon such
evidence the magistrate will then assess the damages and give judgment accordingly.

— The claim is based on a hire-purchase agreement.

 If the request is for default judgment on a claim founded on any cause of action arising out
of or based on any hire-purchase agreement governed by the Hire Purchase Act [Chapter
14:09], it must be referred to a magistrate.

— Referral to magistrate.

There is also a general provision allowing the clerk to refer any request for judgment to a
magistrate. The magistrate to whom the matter is referred has the power to call upon the
plaintiff to produce written or oral evidence in support of his claim: O11 R4(8).

Additional requirements in certain situations

Action based on liquid document.

Before judgment will be entered where the action is on a liquid document, the plaintiff must
file the original document duly stamped, or an affidavit setting out the reasons to the
satisfaction of the court why the original document cannot or should not be filed: O11 R4(7).

Summons served by registered post.

No judgment will be entered where summons has been served by registered post until the
postmaster’s certificate of delivery is received: O11 R4(4).

Defective appearance to defend entered.

Where it appears to the Clerk of Court that the defendant intends to defend the action but
has entered an appearance to defend which is defective, for example, he has omitted to sign it,
the clerk will not enter judgment for the plaintiff but will instead insist that the plaintiff deliver
written notice to the defendant clearly setting out the respects in which the entry of
appearance is defective and notifying him that unless a proper, non-defective appearance to
defend is filed within 48 hours of the defendant’s receipt of such notice, default judgment will
be applied for: O11 R4(2). This notice is not process and may be served by hand or by
registered post. If after the 48 hour period has elapsed, a non-defective appearance to defend
has not been entered, the clerk will enter judgment for the plaintiff.

After judgment has been entered for the plaintiff, he may then enforce the judgment. See below
for how judgments are enforced.

Rescission of default judgment (Order 30, as read with

s 39 of Magistrates Court Act]

D may make an application for rescission within 1 month of acquiring knowledge of the
default judgment and on 7 days written notice to P. The application must be on affidavit
setting out why there was no appearance to defend and what D’s defence is.
Who can apply?
Any party against whom a default judgment has been entered may apply to court for rescission
of that judgment: O30, as read with s 39 of the Magistrates Court Act.

Procedure
The procedure for obtaining rescission is as follows:

— The application must be made within 1 month after the applicant has knowledge of the
judgment: O30 R1(1). But see Du Plessis v Tager 1953 (2) SA 275 (O) and Paruk v Hayne & Co
1906 NLR 382.
There is a rebuttable presumption that the applicant had knowledge of the judgment within
2 days after the date of judgment: O30 R1(4). The applicant can seek condonation if the
application is out of time Mahoqa v Libenberg S-206-91.

— The application must be on 7 days notice to the plaintiff: O30 R1(1) as read with O7 R9(2).
The notice must be written notice as under O1 R5(1) notice means written notice.
— The application must be on affidavit O30 R1(2) and the affidavit must contain the following
details:

• The reasons why the applicant did not enter an appearance to defend: O30 R1(2)(a).
• The grounds of defence: O30 R1(2)(b).

— The notice must contain the following details:

• The date, time and place of hearing: O22 R1(1).

• The terms of the order applied for: O22 R1(1).

Unless the applicant has been given leave to defend as a pauper, the applicant must pay into
court the amount of costs which the the respondent (plaintiff) has incurred in order to obtain
judgment and $10 as security for the costs of the application for rescission: O30 R1(3).

A copy of the application for rescission must be served on the other party O22 R1(1) and on the
Clerk of Court O30 R1(1). An application for rescission is not process and does not have to be
served by the messenger; it may be served by the party by hand or by registered post.

Time limit
The application for rescission must be made within 1 month of acquiring knowledge of the
default judgment and 7 days notice must be given to the plaintiff of the application.

Respondent’s response to application

Does not oppose
If the respondent does not oppose the order sought he may, not later than 48 hours before the
time stated in the application as the time at which the application will be made to the court
and in order to save costs, deliver a statement in writing consenting to the order for rescission:
O22 R2(1)(a). It will then not be necessary for the parties to appear in court as the order will be
deemed to be granted at the time stated in the application: O22 R 2(2)(a). The statement
consenting to the rescission order is not process and does not have to be served by the
messenger of the court and may be served by hand or by registered post.

Opposes
If the respondent opposes the order he may deliver a statement in writing opposing the
granting of the order; this must be delivered not less than 48 hours before the time stated in
the application as the time at which the application will be made to the court: O22 R2(1)(b).
This statement must set out the grounds on which he opposes the order and must set out the
disputed facts and any additional facts on affidavit: O22 R2(3). This statement is not process
and does not have to be served by the messenger of the court and may be served by hand or by
registered post.

Evidence at hearing
At the hearing of this application the court may receive viva voce evidence.

What is wilful default?

In terms of O30 R2(1) no application for rescission of judgment will be granted if the applicant
was in “wilful default”. As to what constitutes wilful default see Neuman (Pvt) Ltd v Marks 1960
R & N 166 (SR) and Simbi v Simbi S-164-90. The word “wilful” in this context implies nothing
blameworthy; it means simply that the defendant knew what he was doing when he defaulted
and intended to default and acted as a free agent.

Appearance to defend [Order 10]

D may enter an appearance to defend within the time period specified in the summons.
This must be in the form of a written memorandum filed with the court and served on P.

Procedure for entering

A defendant who intends to defend the action must enter an appearance to defend by delivery
of a memorandum in writing, stating that he intends to defend the action, that is he must file
the memorandum with the Clerk of Court and serve a copy on the plaintiff: O10 R1. This
memorandum must be delivered within the time period specified in the summons: O10 R1.
However, it is further provided that an appearance to defend will be valid even if the time
period specified in the summons has expired provided no request for default judgment has
yet been made: O10 R2.

Time limit for delivering

The written memorandum containing the appearance to defend must be delivered within the
time limit laid down in the summons for entering the appearance to defend.

Detail required
An appearance to defend must contain the following details:
— It must be signed by the defendant or his representative: O10 R3(1)(a) read with O1 R5(1)
and O4 R1(1).

— It must give the defendant’s postal address: O10 R3(1)(c) and an address for service: O10
R3(1)(b) and R3(2). For definition of “address for service” see section 1 of this Guide.

An appearance to defend is not process and does not have to be served by the messenger of the
court; it may be served by the defendant by hand or by registered post.

Requiring the plaintiff to give security [Order 33 Rule 9]

D can require P to give security if P is not resident in Zimbabwe, P is an unrehabilitated

insolvent or P has no substantial interest in the cause of action.

Circumstances in which request can be made

In certain circumstances a defendant who intends to contest an action may require a plaintiff
to give security for the costs of the action, that is to give security to the satisfaction of the clerk
of the court by giving a security bond: O1 R5(1).

The defendant may not require security to be given by a person who is suing as a pauper: O33
R9(1).

The defendant may, in terms of O33 R9(1), require the plaintiff to give security for the costs of
the action where such plaintiff

— is not resident in Zimbabwe; or

— is an unrehabilitated insolvent; or

— has no substantial interest in the cause of action.

Section 350 of the Companies Act [Chapter 24:03] provides that a company which is a plaintiff
or applicant may be required to furnish security for costs in certain circumstances.

Procedure for making

The request need not be delivered in the sense of being filed of record with the Clerk of Court. It
is not process and does not have to be served by the messenger of the court; it may be served
by the defendant by hand or by registered post.

If the defendant first becomes aware of the fact that the plaintiff is not a resident in Zimbabwe
or is an unrehabilitated insolvent or has no substantial interest in the cause of action after the
close of the pleadings the request for security to be provided may be made within 7 days of the
knowledge of the fact having been acquired: Proviso to R9(1) of O33.

When request can be made

The defendant may make this request at any time between the service of the summons and the
close of the pleadings: O33 R9(1).
Non-compliance
If the request to provided security is not complied with within 48 hours the defendant may
apply to court for an order either dismissing the action or staying the proceedings until the
request is complied with: O33 R9(2). This application must be on 7 days’notice to the plaintiff:
O22 R1(1), as read with O7 R9(2).

The application may be supported by affidavit: O22 R1(2). A copy of the application must be
served on the Clerk of Court as the application is an application to court.

The application to court for an order dismissing the action or staying the proceedings until
security has been given are not process and they do not therefore have to be served by the
messenger of the court; they may be served by the defendant by hand or by registered post.

Consent to application
The respondent may consent to such application not less than 48 hours before the time stated
for the application or he may oppose such application: O22 R2(1). If he consents to the
application O22 R2(2) will apply. If he opposes the application O22 R2(3) will apply.

Courses open to defendant after he has entered appearance to defend

Once the appearance to defend has been properly entered, the defendant may, depending on
the circumstances, adopt one or more of the following courses of action:
— He may request further particulars on the details of claim set out in the summons or
request copies of the documents upon which the claim is founded; or

— He may except to the summons; or

— He may deliver his plea and, if applicable, a claim in reconvention.

Request by defendant for further particulars to the summons

and for copies of documents [Order 12]

D may request further particulars to the summons from P. He does this by filing a
written notice with the court and serving it on P within 7 days of entry of appearance to
defend. This notice does not have to be served by the messenger of the court. D may also
apply to P for copies of any of documents upon which P’s claim is based.

Procedure for making request

In terms of O12 R2(1) the defendant may, by written notice delivered not more than 7 days
after entry of appearance to defend require the plaintiff to deliver such further information
relating to the details contained in the summons as is reasonably necessary to enable such
party to plead. The notice to the plaintiff must be delivered i.e. it must be filed at the court and
a copy served on the plaintiff: O1 R5(1).

In terms of O12 R1 the defendant is entitled, before pleading, to apply to the plaintiff by written
notice for copies of any documents upon which the claim is founded. He is also entitled to ask
the plaintiff to allow him to inspect the original documents. This procedure must not be
confused with the provisions for obtaining discovery and production of documents after the
close of pleadings in terms of O18. Although there is no requirement that the application be
delivered, and thus it is not technically necessary for a copy of the application to be filed with
the Clerk of Court, it would be advisable for a copy of the request to be filed with the clerk.

Neither the request for further particulars nor the request to inspect documents are process
and they need not be served by the messenger of the court; they may be served by the
defendant by hand or by registered post.

Time limit for delivering request

The request for further particulars must be delivered not more than 7 days after the
appearance to defend. In practice, a request for further particulars is effective when made out
of time and even after service of a notice to plead. See O33 R1(1). Requests for further and
better particulars are common.

The request for copies of the documents upon which the claim is based can be made at any
time after service of the summons and before delivery of the plea.

Failure to comply
If the plaintiff fails to comply with these requests the defendant may apply to court, in terms of
O33 R1(2) for an order compelling compliance within a stated period of time. This application
must be on 7 days’ notice to the other party: O22 R1(1) read with O7 R9(2). The application
may be supported by affidavit: O22 R1(2). As this is an application to the court a copy must be
filed of record with the Clerk of Court. But it is not process and does not have to be served by
the messenger of the court; it may be served by hand or by registered post.

The leading case on this order is Timesecurity (Pvt) Ltd v Castle Hotel (Pvt) Ltd 1972 (1) RLR 155
(A); 1972 (3) SA 112 (RA).

On O12 R1 see Estate Late Zagorie v Lategan 1945 CPD 360.

The respondent may consent to such application not less than 48 hours before the time stated
for the application or he may oppose such application: O22 R2(1). If he consents to the
application O22 R2(2) will apply. If he opposes the application O22 R2(3) will apply.

If the plaintiff still fails to comply with the court order compelling compliance, the defendant
may ask the court for judgment to be entered against the plaintiff in terms of O33 R1(3)(a).

What defendant required to do after compliance

Once the plaintiff has complied or the court has refused to order compelling compliance by the
plaintiff, the defendant must either:

— deliver his plea, that is file the plea of record with the Clerk of Court and serve a copy on
the plaintiff: O16 R1(1)(b); or
— except to the plaintiff’s summons within 7 days of compliance or refusal: O14 proviso to
R1(1).

Exception to summons [Order 14]

D may except to the summons within 7 days of entering an appearance to defend by filing the
particulars of the exception with the court and serving it on P. He may only except to the
summons on the grounds that it discloses no cause of action, it is vague and embarrassing, it
has not been properly served or the copy served on D differs materially from the original
summons.

Procedure for excepting

In terms of O14 R1 an exception to a summons is noted by delivery of particulars of the
exception within 7 days after entry of appearance to defend or the delivery of further
particulars to the summons. The particulars of the exception must be filed with the Clerk of
Court and a copy served on the plaintiff. The particulars of exception are not, however, process
and do not have to be served by the messenger of the court; they may be served by hand or by
registered post. The particulars of exception need not be on affidavit.

Time limit delivery of particulars of exception

7 days from the time of entry of appearance to defend or the delivery of further particulars.
This time limit may be extended in terms of O33 R2.

Permissible exceptions
The only exceptions which may be made to a summons are those set out in O14. These are:

— The summons does not disclose a cause of action.

— The summons is vague and embarrassing.

— The summons has not been properly served.

— The copy of the summons served on the defendant differs materially from the original.

Any other complaint than these such as an objection that the court has no jurisdiction must
be raised by means of a plea: O14 R3.

Special provisions relating to exception that summons vague and embarrassing

With an exception that the summons is vague and embarrassing, notice must be delivered to
the plaintiff giving him an opportunity to remove this cause of complaint. Such notice is
necessary because O14 R5(3) provides that an exception on this ground will not be upheld
unless the defendant has previously delivered a notice giving the plaintiff an opportunity to
remove this cause of complaint. This notice should normally be incorporated in the particulars
of the exception. The notice should warn the plaintiff that if the cause of complaint is not
removed the exception will be set down for hearing.
Prejudice to defendant in conduct of defence
No exception to a summons will be upheld unless the defendant will be prejudiced in the
conduct of his defence: O14 R5(1). As to what constitutes prejudice see Van Eck Brothers v Van
der Merwe 1940 CPD 360.

Non-compliance [Order 8]
If it is alleged that the summons does not comply with the requirements set out in O8,
particulars of non-compliance must be set out in the particulars of the exception: O14 R5(2).

Hearing
As regards the hearing of the exception, a set down date will not necessarily be contained in
the particulars of the exception.

If the plaintiff has applied for summary judgment and the particulars of the exception are
lodged before the hearing of the application for summary judgment, then both exception and
the application for summary judgment will be heard at the same time, that is on the date of the
summary judgment hearing: O14 R7(1). Where no application for summary judgment has been
made then either party may set the matter down for hearing at any time before trial, but 7
days’ notice must be given to the other party: O14 R7(2) read with O7 R9(2). The notice of set
down must state the date, time and place of hearing: O22 R1(1).

Decision
If the exception is sustained and no application to amend the summons is made or, if it is
made, is refused, on the application of the defendant the court may dismiss the plaintiff’s
claim: O14 R8.

If the exception is dismissed and the defendant wishes to continue with his defence, he must
deliver his plea within 7 days of the dismissal: O16 R1(1)(e).

Plea [Order 16]

What is a plea?
A plea is a statement in writing which contains the defendant’s answer to the plaintiff’s claim.
Pleas are governed by O16 of the rules. Pleas must be signed either by the defendant or by his
representative: O16 R1(2) read with O1 R5(1) and O4 R1(1). It is not necessary to file a power of
attorney to sign the plea but the authority to act may be challenged: O4 R2.

Time limit for delivering

The plea must be delivered (i.e. filed of record with the Clerk of Court and a copy served on the
plaintiff). It must be delivered within 7 days from:

— the entry of an appearance to defend; or

— the delivery of further particulars or documents in terms of O12 R1 and R2; or

— the dismissal of any application for summary judgment; or

— the making of an order giving leave to defend following the rescission of a judgment in
terms of O30 or the refusal of an application for summary judgment in terms of O15 R3(2); or

— the dismissal of an exception or motion to strike out; or

— any amendment of the summons allowed by the court at the hearing of an exception: O16
R1(a) to (f).

Where an appeal is noted against the decision on an exception the plea shall be delivered
within the time set by the appeal court: O16 R1(1).

In practice, a plea may be delivered at any time prior to a request for default judgment being
delivered: O33 R1.

Service
A plea is not process and it does not have to be served by the messenger of the court; it may be
served by hand or by registered post.

Contents
It is not permitted for the defendant to make a bare denial of liability or to raise a defence of
general issue: O16 R4. The defendant may, however, deny specific allegations in the summons
either as his sole defence or in combination with another defence: O16 R4.

In terms of O16 R2 the defendant in his plea can adopt one of three approaches in relation to
the material facts contained in the plaintiff’s summons. He may

— admit all the material facts; or

— deny all the material facts; or

— confess and avoid all the material facts.

In his plea the defendant must state clearly and concisely the nature of his defence and all the
material facts on which it is based: O16 R2.

In terms of O16 R7 every allegation of fact made by the plaintiff which is inconsistent with the
plea shall be presumed to be denied by the defendant and every other allegation shall be taken
to be admitted.

As regards pleadings in the magistrates’ court see Ellison’s Electrical Engineers v Barclay 1969
(2) RLR 461 and Humbasha v Chimombe S-2-92.
Abandonment of defence by defendant [Order 20]

A defendant may, by delivery of notice, abandon any defence pleaded by him: O20 R2(3) (i.e.
the notice must be filed of record with the Clerk of Court and a copy of it served on the
plaintiff). As such notice is not process it does not have to be served by the messenger of the
court; it may be served by hand or by registered post.

Claim in reconvention (counterclaim) [Order 9]

What is a claim in reconvention?
It sometimes happens that a defendant also has a claim against the plaintiff. For example a
defendant who is being sued by the plaintiff for $100 also is owed $50 by the plaintiff. In this
situation, the defendant may make a claim in reconvention. This counter claim is usually
delivered with his plea to the plaintiff’s claim.

Procedure for making

The claim in reconvention must be delivered within 7 days of entry of appearance to defend: O9
R2 (i.e. notice must be filed of record with the clerk and copy served on the other party). The
notice must be in writing and must contain the same particulars as are required for a claim in
a summons: O9 R2. Such a claim is not process and does not have to be served by the
messenger of the court; it may be served by hand or by registered post: O7 R7(2) read with
R7(4).

The procedures to be followed in relation to claims in reconvention are the same as those in
relation to claims contained in summonses, except that

— if the plaintiff (the defendant in reconvention) wishes to defend the claim in reconvention, it
is not necessary for him to enter an appearance to defend; and

— the time periods run from the date of delivery of the claim in reconvention: O9 R1.

If the defendant has brought a claim in reconvention, he may withdraw this claim by delivery of
a notice of withdrawal. A notice of withdrawal is not process and it does not have to be served
by the messenger of the court; it may be served by hand or by registered post.

Where the claim in reconvention exceeds the jurisdiction of the magistrates court, the
defendant must comply with the provisions of s 15 of the Magistrates Court Act and O9 R(2),
(3) & (4).

Time limit for delivering

Within 7 days of entry of appearance to defend.

Claims in excess of jurisdiction

See O9 R3(2)-(4).
Courses open to plaintiff after entry of appearance to defend but before
defendant has pleaded

The plaintiff may, if necessary, do any of the following things:

— Deliver a notice to plead; or

— Apply for summary judgment; or

— Withdraw the action.

Notice to plead [Order 11 Rule 3(a)]

Sometimes a defendant who has entered an appearance to defend fails or neglects to deliver his
plea within the time limit set out in the rules. In these circumstances, the plaintiff must take
further action before he can request judgment by default. Before requesting default judgment,
he must deliver a written notice calling upon the defendant to file his plea within 48 hours of
the receipt of such notice: O11 R3(a). Such notice to plead is not process and does not have to
be served by the messenger of the court; it may be served by hand or by registered post.

If after the delivery of the notice to plead the defendant fails to deliver his plea, the plaintiff may
lodge with the Clerk of Court a written request to have judgment entered by default: O11 R3(b).

Summary judgment [Order 15]

P may apply for summary judgment where D has entered appearance to defend to delay
P’s claim and has no genuine defence to claim. Summary judgment can be applied for
only in respect of certain types of claims.

When can be applied for

Summary judgment can be applied for in respect of certain types of claims where the defendant
has entered an appearance to defend simply in order to delay the plaintiff’s claim. Thus when a
defendant who has no bona fide defence, enters an appearance to defend simply in order to
delay the plaintiff’s claim, the plaintiff may apply to the court for summary judgment in terms
of O15.

Both the plaintiff in convention (the plaintiff in the main action) and the plaintiff in
reconvention (the defendant in the main action who is bringing a counter-claim) can apply for
summary judgment if the other party has entered an appearance to defend: O15 R1(1).

The plaintiff, however, can only apply for summary judgment in respect of certain types of
claims.

Claims for which it can be sought

In terms of O15 R1(a)-(e) the only claims in respect of which summary judgment may be sought
are claims:
— on a liquid document; or
— for a liquidated amount of money; or

— for the delivery of specified movable property; or

— for ejectment; or

— for a combination of the any of these.

Procedure for applying

The plaintiff must deliver a notice (i.e. filed of record with the Clerk of Court and a copy served
on the defendant). This notice must be delivered not more than 7 days after the date of the
defendant’s appearance to defend: O15 R1(2). The notice must state the date, time and place of
the hearing: O22 R1(1). As the application for summary judgment is not process the notice
does not have to be served by the messenger of the court; it may be served by hand or by
registered post: O7 R7(2) read with R7(4).

If the claim is based on a liquid document, a copy of such document must be attached to the
notice: O15 R1(2)(b). No affidavit is required or indeed permitted if the claim is based on a
liquid document. See Van Eeden v Sasol Pensionfonds 1975 (2) SA 167 (O).

If the claim is for a liquidated amount in money or for the delivery of a specified movable or for
ejectment, a copy of an affidavit must be attached to the notice. Annexures to the affidavit are
permitted in certain circumstances: See Beresford Land Plan (Pvt) Ltd v Urquhart 1975 (1) RLR
260 (A); 1975 (3) SA 619. This affidavit must be made either by the plaintiff or by any other
person who can swear positively to the facts.

In terms of O15 R1(2) the affidavit must:

— verify the cause of action and the amount claimed, if any; and

— must state that the plaintiff believes that the defendant has no bona fide defence and that
the appearance has been entered solely for the purpose of causing delay.

As to what else the affidavit may contain, see Hughes v Lotriet 1985 (2) ZLR 179 (H).

The verification is done by simply referring to the material facts set out in the summons and
swearing that they are true.

According to the Beresford Landplan case at p 628G, an omission to state specifically in the
affidavit that there is no bona fide defence is not fatal to the claim provided that the plaintiff
has stated his belief that the appearance to defend has been entered solely for the purpose of
delay.

See the pro-forma affidavit included as form Civ 12 in the rules.

Hearing of application
At least 7 days must elapse between the time the defendant receives the notice and the hearing
of the matter in court: O15 R1(2) read with O7 R9(2).

The plaintiff may not adduce any evidence at the hearing other than the affidavit or the liquid
document as set out above.

The defendant, on the other hand, may call witnesses to satisfy the court that he has a good
prima facie defence. This means that he must allege facts which if he succeeded in proving
these at the trial would constitute a valid defence to the action. This evidence must be in
support of the defendant’s affidavit to that effect: O15 R2(1)(c). Any witnesses called by the
defendant may be questioned by the court and re-examined by the defendant but they may not
be cross-examined by the plaintiff: O15 R2(2)(a) & (b).

As an alternative to satisfying the court that he has a good prima facie defence, the defendant
may, in terms of O15 R2(1)(a) & (b) adopt either of these courses of action:

— pay into court the sum sued for together with such costs as may be determined by the
court; or

— give security to satisfy any judgment which may be given against him.

In these circumstances the court will give the defendant leave to defend without delving into
whether he has a good prima facie defence and the action will proceed as if no application for
summary judgment had been made: O15 R3(2).

If the defendant does not satisfy the court that he has a good prima facie defence, make a
payment into court or find security, the court may enter summary judgment in favour of the
plaintiff: O15 R3(1). If summary judgment is granted for the plaintiff, he may then enforce the
judgment. (See below for the procedures to enforce the judgment.) If summary judgment is
refused, the defendant must deliver his plea within 7 days of the dismissal of the application if
he wishes to proceed with his defence to the action: O16 R1(1)(c).

Withdrawal of action after entry of appearance to defend [Order 20]

Procedure
If the plaintiff wishes to withdraw an action after the defendant has entered an appearance to
defend, he must deliver a written notice of withdrawal (i.e. the notice must be filed of record
with the Clerk of Court and a copy of the notice must be served on the defendant): O20 R2(1).
The withdrawal notice is not process and does not have to be served by the messenger of the
court; it may be served by hand or by registered post.

Costs
The plaintiff may incorporate into such withdrawal notice a consent to pay the costs incurred.
Such consent will have the force of an order of court: O20 proviso to R2(2). If the plaintiff does
not consent to pay the costs, the defendant may, within 14 days of the receipt of the notice of
withdrawal, apply to the court for an order compelling the plaintiff to pay the costs: O20 R2(2).
The application for an order for costs is not process and need not be served by the messenger
of the court; it may be served by hand or by registered post: O7 R7(2) read with R7(4). Such an
application must be on 7 days written notice to the other party: O22 R1(1) read with O7 R9(2).

If the plaintiff consents to the order for costs not less than 48 hours before the application is to
be heard the provisions of O22 R2(1)(a) read with R2(2) will apply.

Subsequent action after withdrawal

The withdrawal of the action will not be a defence to any subsequent action: O33 R5(1).

Courses open to plaintiff after plea

Once the defendant’s plea has been delivered to him, the plaintiff may adopt one or more the
following courses of action:

— Request further particulars of the plea; and /or

— Except to the plea; and/ or

— Reply to the plea.

Request by plaintiff for further particulars of

defendant’s plea [Order 12]
Procedure
The plaintiff may require the defendant by delivering written notice to him to furnish further
particulars to enable the plaintiff to plead. (To plead in the context of this rule means to reply
or to except.) This notice must be delivered not more than 7 days after the delivery of the plea
i.e. the written notice must be filed of record with the Clerk of Court and a copy served on the
defendant: O12 R2(1)(b). (Note that in this rule reference is made to “any party”. In terms of O1
R5(1) this includes the plaintiff.)

The request for further particulars is not process and does not have to be served by the
messenger of the court; it may be served by hand or by registered post.

Time limit for delivery of notice requesting further particulars

Not more than 7 days of delivery of defendant’s plea.

Compelling compliance
If the defendant fails to comply with the request, the plaintiff may apply to court on written
notice for an order compelling the defendant to supply the particulars requested within a
stated period of time: O33 R1(2). This application must be on 7 days’ notice to the other party:
O22 R1(1) read with O7 R9(2). The application may be supported by affidavit: O22 R1(2). As
this is an application to the court a copy must be filed of record with the Clerk of Court. But it
is not process and does not have to be served by the messenger of the court; it may be served
by hand or by registered post.

Response of plaintiff after compliance

If the defendant complies with the request, or the court refuses to order compliance the
plaintiff may either;

— reply to the plea in terms of O17; or

— except to the plea in terms of O16 R10 if this is applicable.

Exception to plea [Order 16 Rules 9-16]

Permissible exceptions
The only exceptions which a plaintiff may take to a defendant’s plea are those set out in O16
R11. These are:

— the plea does not disclose a defence to the plaintiff’s claim;

— the plea is vague and embarrassing;

— the plea does not comply with the requirements of O16.

Procedure
An exception to a plea is noted by delivery of particulars of exception within 7 days of the
receipt of the defendant’s plea or receipt of any further particulars to the plea. The delivery is
done by filing the particulars of record with the Clerk of Court and serving a copy on the
defendant. The further particulars may be delivered either before or together with the reply to
the plea: O16 R10.

Time limit
Delivery of particulars of exception to defendant’s plea within 7 days of receipt of defendant’s
plea.

Hearing
As regards the hearing of the exception, a set down date will not necessarily be contained in
the particulars of the exception.

In terms of O16 R15 either party may set the matter down for hearing at any time before trial,
but 7 days’ notice must be given to the other party. Thus, particulars of exception may be
delivered and then a notice of set-down for hearing can be delivered at a later date.

The notice of set down must state the date, time and place of hearing: O22 R1(1).
Where the exception is based on the ground that the plea does not comply with the
requirements of O16, the particulars of the non-compliance must be stated: O16 R12(2).

An affidavit is not necessary.

The document containing particulars of exception is not process and it does not have to be
served by the messenger of the court; it may be served by hand or by registered post: O7 R5(2),
as read with R7(A).

If the exception is based on the ground that the plea is vague and embarrassing it is necessary
for the plaintiff to deliver a written notice (i.e. file of record with Clerk of Court and serve copy
on defendant), giving the defendant an opportunity to remove this ground of complaint: O16
R12(3). This notice is not process and it does not have to be served by the messenger of the
court; it may be served by hand or by registered post: O7 R5(2), as read with R7A. It should,
however, normally be incorporated in the particulars of exception and should warn the
defendant that if he fails to remove the cause of complaint, the matter will be set down for
hearing.

An exception to a plea on any ground will not be upheld by the court unless it is satisfied that
the plaintiff will be prejudiced in the conduct of his case: O16 R12(1).

Outcome
If the exception to the plea is dismissed the plaintiff may file his reply in terms of O17.

If the exception to the plea is sustained by the court and no application is made to amend the
plea or, if made, is refused, the court may give judgment for the plaintiff if the plea then
discloses no defence.

Reply [Order 17]

When need for reply
A reply is the plaintiff’s answer to the defendant’s plea. A reply need only be delivered where
the plea contains something more than a denial of one or more of the particulars contained in
the summons: O17 R1.

The reply must be delivered within 7 days of:

— the delivery of the plea O17 R1(a); or

— the delivery of further particulars to the plea O17 R1(b); or

— the dismissal of an exception to the plea O17 R2 read with O16 R1(1)(e).

A reply is not process and does not have to be served by the messenger of the court but may be
served by hand or by registered post: O7 R5(2), as read with R7A.
Where the plaintiff denies the allegations of fact contained in the defendant’s plea it will not be
necessary for him to deliver a reply, as, in terms of O17 R3 a plaintiff who fails to reply within
the time limit is taken to have denied all such allegations of fact.

Close of pleadings [Order 17 Rule 4]

The pleadings are closed, or are deemed to be closed

— upon the delivery of a reply; or

— where no reply is delivered upon the expiration of the period

set within which to reply.

Procedure after close of pleadings

The steps following on the close of pleadings are these:

— Discovery of documents, if this is applicable.

— Request for further particulars, if this is applicable.

— Pre-trial conference.

— Application for dismissal.

— Trial.

Discovery of documents [Order 18]

Discovery
After the pleadings are closed, either party may apply for discovery of documents held by the
other.

Party seeking
The party requiring discovery must deliver a written notice (i.e. file of record the notice with the
Clerk of Court and serve a copy on the other party). This notice must call upon the other party
to specify the books and documents which he intends to use at the trial: O18 R1(1). There is no
time limit within which the notice must be delivered. As the notice is not process it does not
have to be served by the messenger of the court; it may be served by hand or by registered
post.

Party from whom sought

The party to whom the request is made must deliver (i.e. file of record with the Clerk of Court
and serve a copy on the other party) the schedule of books and/ or documents within 7 days of
the receipt of the request: O18 R1(2). If privilege is claimed for any documents these
documents must be separately listed and the grounds on which privilege is claimed must be
set out: O18 R1(3). The schedule is not process and does not have to be served by the
messenger of the court but may be served by hand or by registered post: O7 R5(2), as read with
R7A.

Non-compliance
If the schedule is not delivered the requesting party must raise the matter at the pre-trial
conference O19 R1(2)(d) or if no agreement is reached he must apply for an order compelling
delivery in terms of O33 R1(2).

A book or document not disclosed on request may not be used at the trial by the party who
failed to disclose it without the leave of the court. The opposite party may, however, call for and
use such book or document in cross-examination of a witness: O18 R1(4).

Inspection and copying of books and documents

In addition to providing for discovery, O18 also permits the parties to inspect and/ or obtain
copies of all books and documents disclosed, and to require their production at the trial: O18
R2 and R3.

A notice requesting inspection or copies of documents is not process and does not have to be
served by the messenger of the court but may be served by hand or by registered post: O7
R5(2), as read with R7A.

A notice requiring the production of books and documents disclosed has the effect of a
subpoena: O18 R3(2).

Request for further particulars [Order 12]

Further particulars for trial
Either party is entitled to request to be supplied with further particulars which are reasonably
necessary to enable the party to prepare for trial.

Party seeking
The party requiring such further particulars must deliver a written notice requesting the
particulars required O12 R3(1) (ie the notice must be filed of record with the Clerk of Court and
a copy of the notice must be served on the other party).

This notice may only be delivered after the close of the pleadings O12 R 3(1) but there is no
time limit set for the delivery of the notice after the close of pleadings.This notice is not process
and does not have to be served by the messenger of the court; it may be served by hand or by
registered post: O7 R5(2), as read with R7A.

Party from whom sought

The other party must deliver such particulars as soon as reasonably possible (i.e. must file of
record with Clerk of Court and serve copy on other party): O12 R3(2).
The document containing the further particulars is not process and does not have to be served
by the messenger of the court;it can be served by hand or by registered post: O7 R5(2) read
with R7(A).

Failure to supply
If the particulars requested are not delivered the requesting party may either:

— raise the matter at the pre-trial conference O19 R1(2)(e); or

— make application to compel the supply of such particulars in terms of O33 R1(2).

If the court decides that the particulars are not necessary to enable the party concerned to
prepare for trial, that is the end of the matter as regards further particulars.

Pre-trial conference [Order 19(1)]

Date of
After the close of pleadings either party may request the other to attend a pre-trial conference
at a mutually convenient time and place: O19 R1(1).

If the parties agree, the pre-trial conference may be held before a magistrate in chambers at a
date and time fixed by the clerk of court in consultation with the parties: O19 R1(3).

A magistrate may instruct the clerk of court to notify the parties to attend a pre-trial
conference before a magistrate at a specified date and time. The parties must be given
reasonable notice of the pre-trial conference: O19 R1(4). In such a case, it shall not be
necessary for the parties to hold their own pre-trial conference in terms of 019 R1(1): 019
R1(5).

Where there has been no instruction from a magistrate in terms of 019 R1(4) and the parties
cannot agree on the holding of a pre-trial conference either in terms of 019 R1(1) or in terms of
019 R1(3), either party may apply to a magistrate for directions in regard to the matter in
dispute: 019 R1(6).

Pre-trial conference minute

Upon the conclusion of a pre-trial conference, other than a pre-trial conference before a
magistrate, the parties shall draw up a minute of the conference proceedings and such minute
shall be signed by the parties or their legal practitioners: O19 R1(7).

The conference
The object of the pre-trial conference is to explore whether the matter can be settled without
going for trial and, if an out of court settlement is not possible, to try to reach agreement on
possible ways of curtailing the duration of the trial by considering the various matters set out
in O19 R1(2) such as the possibility of obtaining admissions of fact.
The particular matters listed include admissions, inspections, examinations, reports of experts,
discovery of documents, further particulars, plans, diagrams, photographs, models, amount of
damages, preparation of correspondence and documents and defining the real issues for trial.

Non-attendance at conference and failure to comply with directions

If a party fails to comply with the directions given by a magistrate in terms of R1(4), (6), (8) or
(10) or with a notice (to attend a pre-trial conference before a magistrate) in terms of 019 R1(4),
the court may, on application by the other party, dismiss the claim or strike out the defence or
make such other order as may be appropriate: 019 R1(11).

If a default judgment is entered, the party against whom it is made can still apply for rescission
of judgment in terms of O30.

Outcome of pre-trial conference held before a magistrate

At the conclusion of the conference in terms of O19 R1(10)(a) to (d) the magistrate must make
an order in which he or she:

— shall record the decisions taken at the conference;

— shall record any agreement reached by the parties as to the matters to be considered;

— may limit the issues for trial to those not disposed of by admission or agreement;

— may give directions as to any matter referred to in O19 R1(2) upon which the parties have
been unable to agree;

— shall record the refusal of any party to make admission or reach agreement, together with
the reasons therefor.

Applications for dismissal [Order 20]

At this stage of the proceedings, the defendant may make application to the court for the
dismissal of the action for want of prosecution if the plaintiff has not:

— taken any steps for the holding of a pre-trial conference: O20 R3(1); or

— within 14 days after the pre-trial conference given written notice of trial for a day not more
than 21 days thereafter or on the first day obtainable from the Clerk of Court: O20 R3(2) read
with O19 R2(3).

The defendant must give the plaintiff 7 days notice of such application for dismissal [O22
R1(1)] and the application may be supported by affidavit but this is not essential: O22 R1(2).

The plaintiff may consent to or oppose the application, using the procedures therefor set out in
O22 R2 & R3.
A dismissal of the action is not a final judgment.

Payment into court by defendant [Order 13]

Types of payment
The defendant can make a payment into court of an amount of money. The payment may be all
or part of the amount claimed by the plaintiff. The money paid in is put in the safekeeping of
the Clerk of Court.

There are two types of payment which the defendant may make. The first is an unconditional
payment of the amount claimed in the summons. The second is a payment by way of of an offer
of settlement of an amount less than that claimed.

Unconditional payment of amount claimed

In terms of O13 R1 the defendant may at any time pay into court unconditionally the amount
claimed in the summons. When making such payment the defendant must file written notice
with the clerk and serve a copy of this on the plaintiff. This notice must set out the
amount paid into court and that the amount is paid unconditionally: O13 R3.

The effect of such unconditional payment is to stay all further proceedings in the action except
that the plaintiff is still entitled to take action to recover the costs not included in such
payment. (See below.) The Clerk of Court will pay out to the plaintiff the money paid in
unconditionally by the defendant.

Payment as offer of settlement

In terms of O13 R2(1) the defendant may, without prejudice, make a payment into court by
way of offer in settlement of the plaintiff’s claim. When making such payment the defendant
must file written notice with the clerk and serve a copy of this notice on the plaintiff. The notice
must set out the amount paid into court and state whether the amount paid is offered in
settlement of both the claim and the costs: O13 R3.

Such payment in settlement does not stay further proceedings. However in terms of O13 R2(2)
the plaintiff may, within 7 days of receiving the notice from the defendant, deliver a notice to
the clerk and serve a copy on the defendant requesting payment of the amount paid by the
defendant. The clerk will then pay the money to the plaintiff.

If the plaintiff requests such payment further proceedings are stayed except that the plaintiff is
still entitled to take action to recover any costs not included in the payment made by the
defendant. (See below).

Recovery of costs
Where there has been an unconditional payment of the amount claimed the plaintiff is still
entitled to recover from the defendant the costs incurred by him up to the time of payment.
together with the costs of obtaining payment, in the same manner as if the court had made an
order for such costs: O13 R5.
The same applies where there has been a payment by way of an offer of settlement, unless the
defendant has stated in his notice of payment that the payment of that amount was inclusive
of costs and the plaintiff nonetheless requested payment of this amount: O13 R5.

Subsequent effect of rejection of offer

Where the defendant has paid into court an amount by way of offer of settlement and the
matter proceeds to trial and the plaintiff fails to prove that he was owed any more than had
been paid into court, the court will order the payment to the plaintiff of as much as may have
been awarded to him but it will order the plaintiff to pay the costs incurred by the defendant
after he has made the payment into court. The court may make such order as it thinks just in
regard to costs previously incurred: O13 R6.

Disclosure of tender or payment into court

O13 R9 lays down that where the claim is for damages or compensation, the amount of a
tender or payment into court must not be disclosed to the court until until after judgment on
the claim has been given. However, an order for costs must only be made after disclosure of the
amount tendered or paid into court.

Reasons for payments into court

Payments into court are made to try to stop the case from proceeding further. The
unconditional payment of the whole amount of the claim will automatically stay further
proceedings. The offer of settlement will stay further proceedings if it is accepted by the
plaintiff. If it is not, the defendant will still avoid having to pay all the plaintiff’s legal costs if
the court awards the plaintiff no more than the amount paid into court.

It should be noted that making a payment into court is not the same as consenting to
judgment. The court grants judgment to the plaintiff in a case where the defendant consents to
judgment but it does not grant judgment against a defendant who makes a payment into court.

Section 3

The Trial Stage [Order 19]

Set-down [Order 19 Rule 2]

After the pre-trial conference, the plaintiff must obtain a trial date from the Clerk of Court so
that the matter can proceed for trial.

Having obtained a trial date, the plaintiff must then deliver written notice of trial (i.e. file with
clerk and serve defendant). $25 in revenue stamps must be affixed to this notice.
If the plaintiff does not deliver the notice of trial within 14 days of the pre-trial conference, the
defendant may deliver notice of trial to the plaintiff: O19 R2(1).

If a counterclaim is involved, the notice of trial operates as a set down for the trial of the
counterclaim as well as the original trial: O19 R2(2).

The notice of trial must be delivered at least 7 days before the day approved by the Clerk of
Court for the trial: O19 R2(3).

Notice of trial is not process and does not have to be served by the messenger of the court; it
may be served by hand or by registered post: O7 R7(2) read with R7(4).

Place of trial

The trial of the action must take place at the court house from which the summons was
issued, unless an order to the contrary is made by the court: O19 R3. See also s
17 of the Magistrates Court Act.

Non-appearance of parties

If the plaintiff does not appear in court on the trial date, the court may dismiss the action with
costs: O33 R4(1).

If the defendant does not appear in court on the trial date, the court may give judgment (not
exceeding the relief claimed) against the defendant with costs: O33 R4(2). The plaintiff may
then proceed to enforce the judgment.

The party against whom such a judgment was given in his absence may apply for rescission of
that judgment: O30 R1.

Clarifying issues and shortening proceedings

The court is given power to take certain measures to clarify the issues or to shorten the
proceedings.

Short statement of issues

Subject to any order made at the pre-trial conference, the court may require the parties at the
start of the proceedings to state shortly the issues of fact or questions of law in dispute before
the court hears the evidence: O19 R5(1).

Key factual issue

Where from the pre-trial conference order or from the pleadings, the court considers that one of
several factual issues is cardinal and that the determination of this issue would dispose of the
entire case, the court may require the parties to deal with that issue alone. If then the evidence
on that issue does dispose of the case, the court may proceed to give judgment without dealing
with other issues: O19 R5(2).
Argument solely on law
If the parties agree on the facts and the dispute relates to a question of law, the parties may
admit the facts and the judgment may be given after argument on the law without hearing any
evidence: O19 R5(3).

Key legal issue

Where the case involves both a dispute about the facts as well as a legal issue, if the court
considers that the case may be disposed of upon the question of law only, the court may
require the parties to argue first on the question of law only. The court may then proceed to
give its decision on the point of law before hearing any evidence relating to the facts, and if its
decision on the point of law warrants this, the court may give final judgment without dealing at
all with the issues of fact: O19 R5(4).

Sequence of argument

The party upon whom the burden of proof rests on the pleadings is the person who must first
adduce his evidence. The general rule is that the person who is claiming something must prove
that he has a right to claim and this person usually presents his case first.

In most civil cases the plaintiff will be making the claim and the defendant will be defending
the claim. Thus usually it is the plaintiff who presents his case first.

Burden on plaintiff
If the burden of proof on the pleadings is on the plaintiff, he will begin with his evidence: O19
R6(1).

Burden on defendant
If the burden of proof is on the defendant, he will begin with his evidence: O19
R6(2).

Burden on both parties on different issues

If the burden of proof on some issues is on the plaintiff and on others on the defendant, the
plaintiff will first lead evidence on the issues where he has the burden of proof and thereafter
the defendant will lead evidence on all the issues. The plaintiff may then lead evidence, if has
not already done so, on those issues on which the burden of proof is on the defendant: O19
R6(3).

Burden in dispute
Where the burden of proof is disputed, the court must direct which party must first adduce
evidence: O19 R6(4).
Evidence adduced out of proper sequence
It is provided that either party may, with the leave of the court, adduce further evidence at any
time before judgment, but the court shall not grant such leave if it appears to the court that
the evidence was intentionally withheld out of proper order.

O19 R6(5). As to the factors that the court takes into account see Mkwananzi v Van der Merwe
& Anor 1970 (1) SA 609 (A).

Witnesses

Witnesses called by the plaintiff or the defendant will be examined by the party calling the
witness and may then be cross-examined by the other party. Finally, the party calling the
witness may re-examine the witness.

Witnesses may also be examined by the court: O19 R6(7).

The court can recall any witnesses for further examination at any time before judgment and
the parties can apply to have witnesses recalled for further examination before judgment: O19
R6(6). The factors that the court takes into consideration are set out in Pauley v Marine &
Trade Insurance Co Ltd (2) 1964 (3) SA 657.

There is the power to order the taking of evidence from a witness on interrogatories: O19 R7.

The court may order a witness who is not a party to the proceedings to leave the court until his
evidence is required or after his evidence has been given. The court may also order the witness
who has already given his evidence to remain in the court after his evidence has been given
until the trial is terminated or adjourned: O19 R4.

Judgment
Types of judgment
The trial court will give its judgment at the conclusion of the trial. The only judgments which
the court may give are:

— judgment for the plaintiff; or

— judgment for the defendant; or

— absolution from the instance.

Where the magistrates grants absolution from the instance he is deciding that neither party
has won the case. Where the judgment is one of absolution from the instance, the parties
remain in the same position as they were in before the case started. A court usually grants
absolution from the instance in the following two circumstances:

— At the end of the plaintiff’s case. If the plaintiff’s evidence is not strong enough to support
his claim and the magistrate is satisfied that the plaintiff has not proved his case, without
hearing the defendant’s evidence, the magistrate may grant absolution from the instance. The
defendant may apply to the magistrate for absolution from the instance at the conclusion of the
plaintiff’s evidence.

— At the end of both the plaintiff’s and defendant’s cases. If the magistrate cannot decide
what the truth really is after listening to the plaintiff’s evidence, he should grant absolution
from the instance.

A dismissal of the claim amounts to a judgment of absolution from the instance: S & I Import
and Export v Controller of Customs & Excise 1981 ZLR 284.

The court may also give judgment as to the matter of costs. See below.

Costs
The court may also give judgments as to costs on a party and party basis or on a legal
practitioner and client basis: section 18 of the Magistrates Court Act; O32 R1(1). An order of
costs on the higher legal practitioner and client scale will normally only be made if the other
side has sought such an award; before any such award is made the parties should be given the
opportunity to advance arguments as to whether the higher scale of costs is called for in the
circumstances. Mariyapera v Marizani S-111-90.

Enforcement of judgment

The judgment can be enforced in three different ways, namely

— by a warrant of execution against property;

— by a garnishee order;

— by civil imprisonment.

Warrant of execution against property [s 20-s 25 of the Magistrates Court Act as

read with Order 26 of the Rules]
The warrant
A warrant of execution may be issued against property if the judgment is not satisfied, stayed
or suspended: O26 R1(2).

A pro-forma warrant is to be found in the rules as CIV. 31.

The property can be movable or immovable property but immovable property may only be
atttached if there is insufficient movable property to satisfy the judgment: s 20(1) of the
Magistrates Court Act. An attachment in contravention of s 20(1) of the Magistrates Court Act
entitled the debtor to a setting aside of the sale in execution: Manyonda v Mazhawidza & Ors
S-29-92.
Soonest the warrant may be issued
No warrant may be issued until the day following that on which the judgment was given.
However, the plaintiff may apply for special leave of the court to execute immediately. The court
can give such leave at the time it gives judgment. This restriction on execution does not apply
to judgements by consent or in default: O26 R1(7).

Latest the warrant may be issued

No warrant may be issued after two years from the date on which the judgment was given,
unless the judgment has been revived in terms of s 20(4) of the Magistrates Court Act. Once
issued, however, a warrant remains in force until the judgment is satisfied: s 20(4) of the
Magistrates Court Act.

Issuing of
The Clerk of Court must sign and issue the warrant: O26 R1(1).

Warrant in respect of immovable property

Immovable property may not be attached unless there is insufficient movable property to
satisfy the judgment: s 20(1) of the Magistrates Court Act.

If the property to be attached is immovable property the warrant must sate the nature and
situation of the property sufficiently to enable it to be identified: O26 R7(1).

Execution of
Once the warrant has been issued by the Clerk of Court, it is sent by the judgment creditor to
the messenger of the court for execution.

Upon receiving the warrant the messenger must, within 24 hours or as soon as circumstances
permit, go to the house or place of business of the judgment debtor and deliver to him or leave
at his house or place or business a notice warning him of the date of the proposed execution of
the warrant. The date in the notice must not be less than 48 hours after the notice was
delivered or left. However, the messenger does not have to deliver or leave such a notice to the
judgment debtor if he has reasonable grounds for believing that immediate execution of the
warrant is necessary in order to prevent the debtor from concealing or disposing of any
property to avoid its attachment: O26 R4A.

The judgment creditor may issue the messenger with an instruction for the immediate service
of process in Form CIV. 41A.

Property which cannot be attached

Certain property may not be attached: s 25 of the Magistrates Court Act. This property is
basically furniture, clothing, food, tools and implements of trade or professional books and
documents which are necessary to enable the judgment debtor and his family to live and work.
Security
A judgment creditor may be required to furnish security to the messenger before he executes
where

— the messenger is in doubt as to the validity of any attachment or contemplated attachment:

O26 R2(1);

— the summons has not been served personally and no appearance to defend has been
entered: O26 R2(2)(a);

— moneys are received by the messenger in execution: O26 R2(2)(b).

Claims to property by other people

Where a person other than the judgment debtor claims any property taken in execution as his
and the judgment creditor accepts this claim, he should within 7 days after the receipt of the
notice from the messenger give written notice to the messenger of such acceptance. If he gives
such notice, he will not thereafter be liable to any costs in this respect: O26 R3(7).

Sale of attached movable goods

The sale of attached movable goods shall be by public auction and shall not be less than 14
days after the attachment. However, in the case of perishables, the court may, on application,
reduce this period: O26 R5(14) & (15).

Sale of immovable property

026 R7.

Attachment of dwelling
There are special procedures to be followed in cases where the immovable property attached is
a dwelling: 026 R8.

Garnishee order [s 33 of the Magistrates Court Act

and Order 29 of Rules]

When available
A garnishee order may be made in respect of any debt due or to become due to the judgment
debtor by the garnishee, including salaries or wages: s 33(1) & (2) of the Magistrates Court Act.

If, for example, the judgment debtor was being paid monthly wages by his employer, the
employer (the garnishee) can be required under a garnishee order to pay a portion of these
wages every month to the judgment creditor until the judgment debtor’s judgment debt has
been paid off.
The amount of wages or salary left over after the amount deducted under a garnishee order
must be sufficient to enable the judgment debtor to maintain himself and his dependents: s
33(6)of the Magistrates Court Act and O29 R3(1)((b) and R3(3).

No garnishee order may be granted in respect of a judgment which includes any amount for
liquor supplied: s 83(2) of the Liquor Act [Chapter 14:12].

Procedure for applying

An application for a garnishee order is made ex parte by lodging such application with the
Clerk of Court: O29 R1(1).

Supporting affidavit
The application must be supported by an affidavit. In terms of s 33(1) of the Magistrates Court
Act read with O29(1)(2)(a)-(d) of the Rules the affidavit must contain the following information:

Information in relation to the judgment debt:

— a statement that the applicant has obtained judgment against the judgment debtor in the
magistrates court;

— a statement that the judgment is still unsatisfied;

— a statement giving the amount still due including costs.

Information in relation to the garnishee:

— a statement that the garnishee resides, carries on business or is employed within the
province;

— a statement that the garnishee is indebted or will become indebted to the judgment debtor
and a statement of the cause of that debt;

— whether the garnishee’s debt is for salary or wages (if it is, this must be stated, otherwise
the court will not be able to comply with the provisions of s 33(6) of the Magistrates Court Act).

Where the garnishee order is in respect of salary or wages.

Where the garnishee order is sought in respect of salary or wages there must be a statement
that upon the facts known to the applicant, which must be stated, the judgment debtor will
still have sufficient income to maintain himself and his dependants.

For a pro-forma of the affidavit see CIV 39.

4 copies of the order sought must be lodged with the application.

Against the State
The procedure for applying for a garnishee order against the State is set out in O29 R1(1a),
(1b), (1c) and (3a).

Processing of application
On receipt of the application the Clerk of Court lays the papers before a magistrate in
chambers. The magistrate may grant a provisional order for the whole or part of the amount
applied for or may refuse the order: O29 R1(4). See CIV 40 for a draft garnishee order.

The magistrate has the right to require the applicant to appear in open court to support his
application: Proviso to R1(4) of O29.

The order granted by the magistrate is that the garnishee pay to the messenger or to the
judgment creditor or his agent or legal practitioner that portion of the debt due by him to the
judgment debtor, or failing such payment to appear before the court on the return day
mentioned in the order to show cause why he should not do so: s 33(1) of the Magistrates
Court Act.

Once the magistrate has granted the provisional order, it is signed by the clerk of the court and
must be sent to the messenger for service on the judgment debtor and garnishee: s 33(2) of the
Magistrates Court Act. The return day must be at least 7 days if the person to be served resides
within the province, or 14 days if he resides outside the province at the time of service: O7
R9(1)(d).

The provisional order must be served on the garnishee and the judgment debtor personally, or
in such other manner as the court directs: s 33(2) of the Magistrates Court Act.

The service of the order on the garnishee operates as an interdict restraining him from
alienating such debt: s 33(2) of the Magistrates Court Act. This does not apply where the
garnishee is that State: proviso to O29 R1(4).

Opposition to confirmation of order

On the return day both the judgment debtor and the garnishee may appear in court and have
the right to be heard: s 33(2) of the Magistrates Court Act read with O29 R3.

In terms of O29 R2(1) the order must bear on its face in bold type the following:

TO THE ABOVE-NAMED GARNISHEE. If the debt due by you to the [above-mentioned]

judgment debtor was not owing both at the day and hour abovementioned and at the time
when this order was served upon you, or if the debt is alleged to be in respect of future
salary or wages and such debt will not become due or is subject to any set off or lien of
some other person, you should appear in court and prove the facts. If you do not appear,
you may be compelled to pay the debt twice over.
TO THE ABOVE-NAMED JUDGMENT DEBTOR. If the judgment against you has been
satisfied, or is, for any reason, no longer operative against you, or if the debt is due to you
or to become due to you for salary or wages and its attachment will not leave you sufficient
means to enable you to maintain yourself and those dependent on you, you should appear
in court and prove the facts; but you cannot be heard on any other point.

Opposition from judgment debtor

The only grounds on which the judgment debtor may oppose the confirmation order are:

— that the judgment has already been satisfied or is for some other reason not operative
against him: O29 R3(1)(a); or

— where the debt being attached is for salary or wages, its attachment will not leave the
judgment debtor a sufficient amount to maintain himself and his dependents: O29 R3(1)(b).

Opposition from garnishee

In terms of s 33(3) of the Magistrates Court Act the garnishee may oppose the confirmation of
the order on the following grounds:

— that the debt is not due by him to the judgment debtor;

— that he has a set-off against the judgment debtor in respect of the debt due;

— that the debt sought to be attached is the subject of a lien by some other person.

Confirmation of provisional order

If, on the return day neither the garnishee not the judgment debtor appear in court, the court
may confirm the provisional order if it is satisfied that the provisional order was properly
served.

Safeguards in respect of salary and wages

Whether or not the parties appear on the return date, where the garnishee order is in respect of
salary or wages, the court confirming the order must be satisfied that after attachment the
judgment debtor will have sufficient to maintain himself and his dependents: proviso (i) to s
33(6) of the Magistrates Court Act.

It is therefore necessary that the judgment creditor supply the court with the necessary
information relating to the amount of monthly wage or salary being received by the judgment
debtor.

Variation and setting aside of provisional order

If the provisions of proviso (i) to s 33(6) of the Act are not satisfied, the court must reduce the
amounts set out in the provisional order accordingly, or set aside the order: O29 R3(3).
If, on the return day, the judgment debtor satisfies the court that the judgment was not
operative against him the provisional order must be set aside: O29 R3(2).

If, on the return day, the garnishee disputes his liability the court must proceed to hear and
determine the question of such liability: s 33(4) of the Magistrates Court Act. Having done this,
it must then either confirm or set aside the order, or make such order as it thinks fit: O29
R5(2).

A garnishee, in respect of whom an order has been confirmed in relation to salary and wages,
must inform the judgment creditor or his legal practitioner immediately the judgment debtor
ceases to be employed by him: O29 R6.

Civil imprisonment [ss 26-32 of the Magistrates Court Act and

Order 28 of Rules]

Purpose of
Civil imprisoment is intended as a means of compelling a debtor, who is financially able to do
so, to satisfy the judgment; it is not a means of punishing a debtor who does not have the
financial means to pay: s 27 of the Magistrates Court Act.

When civil imprisonment proceedings available

According to s 26(1) of the Magistrates Court Act civil imprisonment proceedings can only be
instituted:

— if the judgment has remained unsatisfied for 7 clear days; or

— the judgment debtor has admitted either in open court or in writing that he has insufficient
property to satisfy the judgment debt and costs; or

— the messenger of the court has reported on his return of service of a warrant of execution
that the debtor has insufficient property to satisfy the judgment debt and costs.

Procedure
Civil imprisonment proceedings are instituted by means of a summons for civil imprisonment.
This summons must call upon the debtor to appear in court on a specific date to show cause
why a decree of civil imprisoment should not be made against him: s 26(1) of the Magistrates
Court Act. A pro-forma of such a summons appears in the rules as CIV 37.

A summons for civil imprisonment must be signed by the plaintiff or his representative: O28
R1(1). It must also be signed and issued by the clerk of the court: O28 R1(1). It is therefore
process and must be served by the messenger of the court: O2 R1 read with O1 R5(1).

The judgment creditor must send to the messenger of the court a copy of the summons for civil
imprisonment, together with as many copies of it as there are persons to be served: O7 R3(3).
As a summons for civil imprisonment is an application for an order affecting the liberty of the
judgment debtor it must be served on the debtor personally unless the court, on application
and on good cause shown, authorises it to be served in some other specified manner: O7 R5(1).

This summons must be served on the debtor at least 7 days before the date on which he must
appear if he resides within the court’s jurisdiction and at least 14 days before the date on
which he must appear if he resides outside the court’s jurisdiction:
O7 R9(1)(a).

If the service of the summons for civil imprisonment is effected outside the province of the
court from which it was issued, the messenger of the court should tender to the debtor, at the
time of service, the sum which would have been payable to him if he had been subpoenaed as a
witness: s 26(3) of the Magistrates Court Act. If this is not done and he does not appear the
court will not consider the application.

Where the debtor has not paid the amount due on the return day of the summons, the court
must inquire into the reasons for the debtor’s failure to pay the amount due and may only
issue a decree of civil imprisonment if it is satisfied that the debtor has the ability to pay the
debt and that his failure or refusal to satisfy the judgment debt is wilful. If the debtor is in
court on the return day the court will call upon him to give evidence on these matters. If the
debtor fails to appear in court on the return day, the court can still issue a decree of civil
imprisonment against him if it is satisfied that the summons has been served upon him and
that the failure to pay is wilful: O28 R1A
and 1B.

On the return day and on proof of satisfactory service, the court may award a decree of civil
imprisonment against the debtor, whether he is present or not: s 27 of the Magistrates Court
Act.

Such order will authorise the issue of the warrant for the arrest and detention of the debtor.

Maximum periods
The maximum periods of civil imprisonment which may be awarded against a debtor are set
out in s 31 of the Magistrates Court Act. No matter how large the debt, the maximum period is
3 months. Where the debt and costs amount to less than $10 the maximum period is 1 month.
In practice, the courts will make an order commensurate with the outstanding balance of the
debt and costs.

When will not be awarded

In terms of provisos (ii)(a),(b) & (c) to s 27 to the Magistrates Court Act, no decree of civil
imprisonment can be awarded if the judgment debtor proves to the court that he is unable to
satisfy the debt either wholly or in part, unless such inability is due to the judgment debtor

— having wilfully disposed of his property in order to defeat or delay payment of the debt; or
— wilfully refusing to work, when he is able to do so, in order to defeat or delay payment of the
debt; or

— squandering his money or living beyond his means.

In terms of s 83(2) of the Liquor Act [Chapter 14:12], no order of civil imprisonment shall be
granted in respect of any judgment or debt when such judgment or debt includes any amount
due in respect of liquor supplied.

Suspension of decree
The court may suspend any decree of civil imprisonment upon such terms as it considers to be
fair and reasonable: proviso (i) to s 27 of the Magistrates Court Act.

Costs
The court may order the judgment creditor to pay the civil imprisonment costs where a
judgment debtor proves that within 7 days of his having notice of the original judgment he:

— had made a bona fide offer to satisfy the debt and costs by fair instalments; or

— had notified the judgment creditor that he was unable to make any offer, and the court
accepts that this is true.

See section 28(1) of the Magistrates Court Act.

Enforcement
A decree of civil imprisonment is enforced by the issue of a warrant for civil imprisonment: s 30
of the Magistrates Court Act. See form CIV 38 of the Rules.

The warrant must be signed and issued by the clerk of the court: O28 R2(1).

Where the decree of civil imprisonment was suspended on condition that certain instalments
were paid, the clerk of the court may require the judgment creditor to satisfy him that the
debtor has failed to make due payment before he will issue the warrant: O28 R3.

The warrant must bear on its face the date of the decree and the date of the last payment, if
any, made in terms of the order: O28 R2(2).

No warrant may be issued if the decree has become superannuated, unless it has first been
revived. In terms of s 29 of the Magistrates Court Act a decree becomes superannuated

— within 2 years of the date of the decree if no payments have been made thereunder; or

— if payments have been made, within 2 years of the date of the last payment.

The warrant must be executed by the messenger of the court because it is process and because
it must be addressed to the messenger: O28 R2(1) read with O2 R1.
A warrant of civil imprisonment lapses with the decree in terms of which it is issued.
R v Chakanetsa 1968 (2) RLR 182.

The warrant authorises

— the messenger to arrest the debtor and to lodge him in prison; and

— the keeper of the prison to detain the debtor.

See O28 R2(1), as read with s 32 of the Magistrates Court Act.

In terms of O28 R5 a warrant may be executed

— at any hour on any day except a Sunday, Christmas Day or Good Friday;

— at any place except within the residence or the precincts thereof of the debtor.

Thus not all the provisions of O7 R5 apply to execution of warrants of civil imprisonment.

However, under the proviso to O28 R5 the court may on application and on good cause shown
grant leave to execute the warrant on the days or at the places prohibited by O28 R5.

The cost of maintaining the debtor in prison must be borne by the judgment creditor: proviso (i)
to s 32 of the Magistrates Court Act. If these charges are not paid to the prison authorities, the
debtor may be discharged from prison forthwith: proviso (ii) to s 32 of the Magistrates Court
Act.

A debtor must be released from prison

— immediately the judgment and debt are paid: proviso (ii) to s 31 of the Magistrates Court
Act; or

— on the written consent of the judgment creditor.

The effect of the debtor serving the full term of imprisonment specified is that he may not again
be imprisoned for the same debt and costs: s 31 of the Magistrates Court Act. However, his
obligation to satisfy the original judgment debt is not discharged; the judgment creditor may
still issue a warrant of execution against property or apply for a garnishee order: proviso (i) to s
31 of the Magistrates Court Act.

Section 4

Appeals [Order 31]

Right of appeal

At the end of the trial, if the plaintiff or the defendant believes that the magistrate’s decision
was wrong on the facts or the law or both, he can appeal against that decision to the High
Court. The appellant must act quickly to do two things. Firstly, he must write to the clerk of
the civil court asking for a written judgment. Secondly, he must note an appeal.

Request for judgment

Within 7 days from the date of the judgment, the appellant must deliver a letter to the clerk of
the civil court stating that he wishes to appeal against the judgment and that he therefore
needs the written judgment. In this letter the case number for the case must be given. When he
delivers the letter the appellant will have to pay a court fee of $10 in revenue stamps: O31
R1(1).

The magistrate will then have to prepare the judgment within 14 days and deliver it to the
Clerk of Court. In practice this takes months or even years. The judgment must set out the
facts found to be proved and the reasons for judgment: O31 R1(1).

The Clerk of Court must immediately notify the appellant when the judgment is ready: O31
R1(2).

Noting of appeal
Time period for noting
After the appellant has requested the written judgment he must then note his appeal. The time
period within which the appeal must be noted is whichever is the longer of these two periods:

— 21 days from the date of the judgment; or

— 14 days from the delivery of the the magistrate’s written judgment to the Clerk of Court.

Procedure for noting

An appeal is noted by delivering a notice of appeal, that is the notice must be filed with the
clerk of civil court and a copy must be served on the other party. Unless the court otherwise
directs, the appellant must also give security for the respondent’s costs in an amount not
exceeding $100 and security for the estimated costs of the preparation of a copy of the record:
O31 R2(2).

Details in notice
In terms of O31 R2(4) the notice of appeal must state the following:

— whether the appeal is against the whole or a part only of the judgment or order and, if it is
against a part only, then what part; and

— the grounds of appeal, specifying the findings of fact or rulings of law appealed against.
Further statement from magistrate

If the magistrate deems it necessary, he will, within 14 days of the noting of an appeal, give a
further statement dealing specifically with the points raised in the notice of appeal: O31 R3(1)
& (2).

He must deliver such a statement if matters not dealt with in the written judgment are raised
in the notice of appeal. Munatsi v Munatsi S-93-86 at 1-2.

Abandonment of judgment by respondent

Respondent may abandon the whole or part of the judgment in his favour (except if the
judgment is for defamation or seduction damages): s 41 of the Magistrates Court Act as read
with O31 R6(1).

Prior agreement that decision not appealable

Parties to an action may agree in writing and prior to the hearing that the decision shall not be
appealable: s 40(1) of the Magistrates Court Act as read with O31 R7.

Execution of judgment pending appeal

The party in whose favour the judgment was granted can apply for execution of the judgment
pending appeal. He must show special reasons why execution should be allowed: s 40(3) of the
Magistrates Court Act. The factors that the court takes into account in exercising its discretion
in this regard are set out in Dabengwa & Ors v Minister of Home Affairs 1982 (1) ZLR 223.

Application for set down of appeal

Within 8 weeks of noting an appeal the appellant must apply to the Registrar of the High Court
for a date of hearing, failing which the appeal lapses: rule 55 Rules of the Supreme Court RGN
380/64 (the Rules continue to apply mutatis mutandis to appeals the High Court).

Check list of time limits for various procedures

Dies induciae At least 7 days if D resident in province in which

summons issued

At least 14 days if D not so resident

Rescission of default judgment Within 1 month of awareness of judgment

Appearance to defend Within time limit specified in summons

 D’s request for further particulars Within 7 days from entry of appearance
to summons to defend

Exception to summons Within 7 days from entry of appearance to defend or

provision of further particulars

Counter claim Within 7 days of entry of appearance to defend

P’s request for further particulars Within 7 days from receipt of D’s plea

P’s exception to D’s plea Within 7 days from receipt of D’s plea

P’s reply to D’s plea Within 7 days of delivery of plea or delivery of

further particulars to the plea or dismissal of
exception to plea

P’s application for pre-trial conference P must apply for conference within 14 days of close
of pleadings

D’s application for dismissal
If P has not applied for pre-trial conference within
14 days of close of pleadings or within 14 days of
pre-trial conference not given notice of trial for date
not more than 21 days thereafter or first obtainable
day

Warrant of execution against property Soonest can be issued is day after judgment given
unless court granted permission to execute
immediately

Table of prescription periods for different types of debt

Kind of debt Period of prescription Legislation governing

Summary of State Liabilities Act

State may be sued

A person may bring an action in court in respect of contracts lawfully entered into on behalf of
State or any wrong committed by officer of employee of State acting in his capacity and within
scope of authority as officer or employee of State: (s 2).
Other laws limiting liability or imposing conditions

Under s 9 provisions in any other laws still apply which:

— limit the liability of the State or a department for act or omission of its officers or
employees; or

— lay down periods within which claims are to be brought; or

— lay down conditions for bringing actions still apply.

Therefore the legal practitioner should make a point of checking the legislative provisions
pertaining to that sphere of government activity to ascertain whether any such limitations are
imposed in this legislation.

Some examples of limitations imposed by other legislative provisions are these:

• in terms of s 70 of the Postal and Telecommunications Services Act [Chapter 12:02] there is
an immunity from liability for negligent delays in the delivery of postal items.

• claims against the police and against the Director of Customs and Excise must be brought
within 8 months (s 70 of the Police Act [Chapter 11:10] and s 196(1) and (3) of the Customs and
Excise Act [Chapter 23:02]).

It is further provided in s 9 that the Act does not affect the operation of any other law which:

— limits the liability of the State or the President, the Vice-President or any Minister or Deputy
Minister, or any officer or employee of the State; or

— prescribes a specific period within which a claim in respect of any liability shall be made; or

— imposes conditions on the institution of any proceedings.

Citing of Minister

The Minister or Vice-President who is in charge of the Ministry or Department may be made
nominal defendant or respondent: (s 3).

Minister must be cited by his official title and not by his name: (s 4).

Execution against or attachment of State property

The claimant may not execute against State property and no State property can be attached.
However, the nominal defendant or respondent may cause payment in respect of the judgment
to be paid out of Consolidated Revenue Fund: (s 5(1)). The use of the word “may” seems to leave
it to the discretion of the responsible Minister to cause the payment of the judgment debt out of
the Consolidated Revenue Fund. However, in Mhora & Anor v Minister of Home Affairs & Anor
1990 (2) ZLR 236 (H) the High Court ruled that s 5 (formerly s 4) in fact imposes a mandatory
duty on the Minister concerned to honour the court’s judgment out of the Consolidated
Revenue Fund. The word “may” in the section had to be construed as “shall” or “must”. If the
section were to be construed as to give the Minister a discretion whether or not to satisfy a
judgment debt against the State, the section would be unconstitutional, in that it would permit
the extinction of debts in contravention of s 16 of the Constitution. If the Minister refused to
comply the judgment creditor could seek a mandamus to ensure payment. In any event, the
court ruled, even if s 5 of the Act merely conferred a discretion on the Minister to satisfy the
judgment, a refusal to exercise his discretion to pay the judgment debt was no excuse in law
where the refusal was solely based on directions given by the President and the court was
bound to order compliance with its order.

Notice

Written notice

The person instituting legal proceedings against the State for damages in contract or delict or
otherwise or for the delivery of goods must give notice in writing of the intention to bring the
claim: (s 6(1)).

Period of notice

The written notice must be served at least 60 before claim brought: (s 6(1)).

Persons to whom notice must be given

Notice must be given to each person upon whom it is required to serve process: (s 6(2)).

Details which must be given in notice

— the grounds of the claim;

— if a contract of sale, the date and place of the sale;

— if a contract of services, when and where the services were rendered;

— if the claim is in respect of an act or omission of an officer or arises out of such an act or
omission, the name and official post, rank or number and place of employment or station or
the officer or employee, if known: (s 6(2)).

The Rules of the High Court and of the Magistrates Court set out

— the persons upon whom the preliminary notice of intention to sue and the process against
the State must be served;
 (These Rules also lay down that a copy of the preliminary notice of intention to bring the
proceedings must be a attached to any process.)

— the persons upon whom copies of such documents are to be served for information (the
Director of the Civil Division of the Attorney-General’s Office in all cases and, in some
cases, other officials as well);

See Order 5A of the High Court of Zimbabwe Rules SI 1047 of 1971 and Order 7A as read with
4th Schedule of the Magistrates Court (Civil) Rules SI 290 of 1980.

When notice not required

The requirement of 60 days notice does not apply

— where there has been an express, written admission of liability; or

— to a counter-claim; or

— to a claim determined by the court to be urgent; or

— where the defendant has expressly waived in writing the notice.

Condonation of failure to give at least 60 days written notice

The court hearing the case may condone the failure to comply with these requirements where it
is satisfied that

— there has been substantial compliance or

— the failure to comply will not unduly prejudice the defendant.

Court not entitled to note failure to give notice

The court dealing with the case is not entitled of its own motion to take notice of the failure to
give the notice required: (s 8). Thus only the State representative may raise the issue of failure
to give notice.

Garnishee orders

Where debt owed by State officer or State employee may obtain garnishee order against State
ordering payment of debt to judgment creditor: (s 5(3)).

The Rules of the High Court and the Magistrates Court have specific provisions relating to the
garnisheeing of the salaries of State employees.

See Order 42 Rule 377A of the High Court of Zimbabwe Rules SI 1047 of 1971 and Order 29
Rule 1(1a), (1b) and (1c) of the Magistrates Court (Civil) Rules SI 290 of 1980.
Case law

Condonation of failure to give notice

Walenn Construction (Pvt) Ltd v Minister of State Security in the President’s Office
HH-37-92
In bringing a claim against a Government Ministry arising out of a motor accident caused by
the negligent driving of an employee in the Ministry in the course of his employment, the
plaintiff had failed to comply with s 5(1) of the State Liabilities Act, in that as he had failed to
give written notice of the intention to bring the action, giving the required details, 60 days
before starting the proceedings.

However the judge used the power under s 5(3) to condone the non-compliance because in the
circumstances there had been substantial compliance with the requirements in the
correspondence sent to the Ministry, even though no formal written notice of the intention to
sue had been given and the failure to give the required written notice had not unduly
prejudiced the defendant.

Contracts with State

Minister of Natural Resources & Tourism v FC Hume (Pvt) Ltd 1989 (3) ZLR 55 (S)
In terms of s 2 of the State Liabilities Act the State may be sued for specific performance of a
contract. The court could order the State to carry out its legally binding obligations under an
agreement of sale. The State does not have the option to pay damages for its breach: the right
of election as to whether to claim damages lay with the person seeking a remedy for breach.

Tanaka Power (Pvt) Ltd v Acting Minister of Industry & Technology & Anor 1990 (2) ZLR 208 (S)
Where the Government enters into an ordinary commercial contract it is obliged to carry out its
contractual obligations. But where a Government Ministry promises that funds will be made
available for a certain transaction which can only be carried out if the required foreign
exchange funds are made available, this promise is not binding on the Ministry responsible for
the actual allocation of foreign exchange funds as the latter Ministry must make its decisions
based upon priority areas for the allocation of limited foreign exchange funds so as to serve
best the overall national economic interests. In the present case, the well-established principle
enunciated in the case of Murray v McLean NO 1969 (2) RLR 541 at 550F applied, namely that
the Executive must decide on the allocation of public funds in the interests of the community
and was not bound by a prior undertaking by a Ministry as to how such funds would be
allocated in the future.

Attorney-General — whether State liable for actions

Nyakabambo v Minister of Justice, Legal & Parliamentary Affairs & Anor 1989 (1)
ZLR 96 (H)
The State cannot be vicariously liable for the actions of the Attorney-General as the
Constitution guarantees the Attorney-General independence from control. (The Attorney-
General himself has a qualified immunity for his official actions under the Constitution.)
Judicial officer — whether State liable for delict committed by:

Boyd v Minister of Justice, Legal & Parliamentary Affairs 1990 (2) ZLR 364 (H)
As the State cannot direct or control a magistrate in the exercise of his judicial functions, it
cannot be vicariously liable for a delict committed by the magistrate during the exercise of his
judicial functions.

Personal responsibility of State employees:

Mhora & Anor v Minister of Home Affairs & Anor 1990 (2) ZLR 236 (H)
Section 2 of the State Liabilities Act, which renders the State vicariously liable for the acts of
its employees committed in the course of their employment, does not serve to relieve the
employees concerned of liability for their acts.

Check list of time limits for various procedures

Dies induciae At least 7 days if D resident in province in which

summons issued

At least 14 days if D not so resident

Rescission of default judgment Within 1 month of awareness of judgment

Appearance to defend Within time limit specified in summons

D’s request for further particulars Within 7 days from entry of appearance
to summons to defend

Exception to summons Within 7 days from entry of appearance to defend or

provision of further particulars

Counter claim Within 7 days of entry of appearance to defend

P’s request for further particulars Within 7 days from receipt of D’s plea

P’s exception to D’s plea Within 7 days from receipt of D’s plea

P’s reply to D’s plea Within 7 days of delivery of plea or delivery of

further particulars to the plea or dismissal of
exception to plea

P’s application for pre-trial conference P must apply for conference within 14 days of close
of pleadings
 D’s application for dismissal If P has not applied for pre-trial conference within
14 days of close of pleadings or within 14 days of
pre-trial conference not given notice of trial for date
not more than 21 days thereafter or first obtainable
day

Warrant of execution against property Soonest can be issued is day after judgment given
unless court granted permission to execute
immediately

Table of prescription periods for different types of debt

Kind of debt Period of prescription Legislation governing

Judgement debt

Mortgage

Income tax

Other taxes payable to State

Debt owed to State from loan of money by State or purchase or lease of land from State

Bill of exchange

Negotiable instrument

Notarial agreement

Debt owed to State apart from debts to State listed above

Any other debt arising out of contract or delict or statute

Right to recover directly against insurance company for statutory third party claims arising out
of motor accidents

Third party claim against Insurance Council of Zimbabwe under “yellow card” third party
scheme covering use of motor vehicles in PTA countries

Application for compensation from Motor Insurance Bureau

Claim against Director of Customs and Excise

Claim against member of police or State vicariously

30 years

15 years

6 years

3 years

2 years from date on which claim arose

2 years from date upon which claim arose

2 years from date upon which claim arose

8 months from date on which cause arose under s 196(2) of Customs & Excise Act [Chapter
23:02]

60 days written notice of claim

8 months from date of cause of action

60 days written notice of claim

Prescription Act [Chapter 8:11] (s 15)

Prescription Act (s 15)

Prescription Act (s 15)

Prescription Act (s 15)

Road Traffic Act [Chapter 13:11] (s 25(1)(a)(ii)

Road Traffic Act (proviso to s 36(1)(a))

Under terms of scheme

Customs & Excise Act [Chapter 23:02] (s 196)

State Liabilities Act [Chapter 8:14] (s 6) and Customs & Excise Act (s 196(1)

Police Act [Chapter 11:10] (s 70)

State Liabilities Act (s 6) and Police Act (s 70)

 Summary of State Liabilities Act

State may be sued

A person may bring an action in court in respect of contracts lawfully entered into on behalf of
State or any wrong committed by officer of employee of State acting in his capacity and within
scope of authority as officer or employee of State: (s 2).

Other laws limiting liability or imposing conditions

Under s 9 provisions in any other laws still apply which:

— limit the liability of the State or a department for act or omission of its officers or
employees; or

— lay down periods within which claims are to be brought; or

— lay down conditions for bringing actions still apply.

Therefore the legal practitioner should make a point of checking the legislative provisions
pertaining to that sphere of government activity to ascertain whether any such limitations are
imposed in this legislation.

Some examples of limitations imposed by other legislative provisions are these:

• in terms of s 70 of the Postal and Telecommunications Services Act [Chapter 12:02] there is
an immunity from liability for negligent delays in the delivery of postal items.

• claims against the police and against the Director of Customs and Excise must be brought
within 8 months (s 70 of the Police Act [Chapter 11:10] and s 196(1) and (3) of the Customs and
Excise Act [Chapter 23:02]).

It is further provided in s 9 that the Act does not affect the operation of any other law which:

— limits the liability of the State or the President, the Vice-President or any Minister or Deputy
Minister, or any officer or employee of the State; or

— prescribes a specific period within which a claim in respect of any liability shall be made; or

— imposes conditions on the institution of any proceedings.

Citing of Minister

The Minister or Vice-President who is in charge of the Ministry or Department may be made
nominal defendant or respondent: (s 3).

Minister must be cited by his official title and not by his name: (s 4).
Execution against or attachment of State property

The claimant may not execute against State property and no State property can be attached.
However, the nominal defendant or respondent may cause payment in respect of the judgment
to be paid out of Consolidated Revenue Fund: (s 5(1)). The use of the word “may” seems to leave
it to the discretion of the responsible Minister to cause the payment of the judgment debt out of
the Consolidated Revenue Fund. However, in Mhora & Anor v Minister of Home Affairs & Anor
1990 (2) ZLR 236 (H) the High Court ruled that s 5 (formerly s 4) in fact imposes a mandatory
duty on the Minister concerned to honour the court’s judgment out of the Consolidated
Revenue Fund. The word “may” in the section had to be construed as “shall” or “must”. If the
section were to be construed as to give the Minister a discretion whether or not to satisfy a
judgment debt against the State, the section would be unconstitutional, in that it would permit
the extinction of debts in contravention of s 16 of the Constitution. If the Minister refused to
comply the judgment creditor could seek a mandamus to ensure payment. In any event, the
court ruled, even if s 5 of the Act merely conferred a discretion on the Minister to satisfy the
judgment, a refusal to exercise his discretion to pay the judgment debt was no excuse in law
where the refusal was solely based on directions given by the President and the court was
bound to order compliance with its order.

Notice

Written notice

The person instituting legal proceedings against the State for damages in contract or delict or
otherwise or for the delivery of goods must give notice in writing of the intention to bring the
claim: (s 6(1)).

Period of notice

The written notice must be served at least 60 before claim brought: (s 6(1)).

Persons to whom notice must be given

Notice must be given to each person upon whom it is required to serve process: (s 6(2)).

Details which must be given in notice

— the grounds of the claim;

— if a contract of sale, the date and place of the sale;

— if a contract of services, when and where the services were rendered;

— if the claim is in respect of an act or omission of an officer or arises out of such an act or
omission, the name and official post, rank or number and place of employment or station or
the officer or employee, if known: (s 6(2)).

The Rules of the High Court and of the Magistrates Court set out

— the persons upon whom the preliminary notice of intention to sue and the process against
the State must be served;

(These Rules also lay down that a copy of the preliminary notice of intention to bring the
proceedings must be a attached to any process.)

— the persons upon whom copies of such documents are to be served for information (the
Director of the Civil Division of the Attorney-General’s Office in all cases and, in some
cases, other officials as well);

See Order 5A of the High Court of Zimbabwe Rules SI 1047 of 1971 and Order 7A as read with
4th Schedule of the Magistrates Court (Civil) Rules SI 290 of 1980.

When notice not required

The requirement of 60 days notice does not apply

— where there has been an express, written admission of liability; or

— to a counter-claim; or

— to a claim determined by the court to be urgent; or

— where the defendant has expressly waived in writing the notice.

Condonation of failure to give at least 60 days written notice

The court hearing the case may condone the failure to comply with these requirements where it
is satisfied that

— there has been substantial compliance or

— the failure to comply will not unduly prejudice the defendant.

Court not entitled to note failure to give notice

The court dealing with the case is not entitled of its own motion to take notice of the failure to
give the notice required: (s 8). Thus only the State representative may raise the issue of failure
to give notice.
Garnishee orders

Where debt owed by State officer or State employee may obtain garnishee order against State
ordering payment of debt to judgment creditor: (s 5(3)).

The Rules of the High Court and the Magistrates Court have specific provisions relating to the
garnisheeing of the salaries of State employees.

See Order 42 Rule 377A of the High Court of Zimbabwe Rules SI 1047 of 1971 and Order 29
Rule 1(1a), (1b) and (1c) of the Magistrates Court (Civil) Rules SI 290 of 1980.

Case law

Condonation of failure to give notice

Walenn Construction (Pvt) Ltd v Minister of State Security in the President’s Office
HH-37-92
In bringing a claim against a Government Ministry arising out of a motor accident caused by
the negligent driving of an employee in the Ministry in the course of his employment, the
plaintiff had failed to comply with s 5(1) of the State Liabilities Act, in that as he had failed to
give written notice of the intention to bring the action, giving the required details, 60 days
before starting the proceedings.

However the judge used the power under s 5(3) to condone the non-compliance because in the
circumstances there had been substantial compliance with the requirements in the
correspondence sent to the Ministry, even though no formal written notice of the intention to
sue had been given and the failure to give the required written notice had not unduly
prejudiced the defendant.

Contracts with State

Minister of Natural Resources & Tourism v FC Hume (Pvt) Ltd 1989 (3) ZLR 55 (S)
In terms of s 2 of the State Liabilities Act the State may be sued for specific performance of a
contract. The court could order the State to carry out its legally binding obligations under an
agreement of sale. The State does not have the option to pay damages for its breach: the right
of election as to whether to claim damages lay with the person seeking a remedy for breach.

Tanaka Power (Pvt) Ltd v Acting Minister of Industry & Technology & Anor 1990 (2) ZLR 208 (S)
Where the Government enters into an ordinary commercial contract it is obliged to carry out its
contractual obligations. But where a Government Ministry promises that funds will be made
available for a certain transaction which can only be carried out if the required foreign
exchange funds are made available, this promise is not binding on the Ministry responsible for
the actual allocation of foreign exchange funds as the latter Ministry must make its decisions
based upon priority areas for the allocation of limited foreign exchange funds so as to serve
best the overall national economic interests. In the present case, the well-established principle
enunciated in the case of Murray v McLean NO 1969 (2) RLR 541 at 550F applied, namely that
the Executive must decide on the allocation of public funds in the interests of the community
 and was not bound by a prior undertaking by a Ministry as to how such funds would be
allocated in the future.

Attorney-General — whether State liable for actions

Nyakabambo v Minister of Justice, Legal & Parliamentary Affairs & Anor 1989 (1)
ZLR 96 (H)
The State cannot be vicariously liable for the actions of the Attorney-General as the
Constitution guarantees the Attorney-General independence from control. (The Attorney-
General himself has a qualified immunity for his official actions under the Constitution.)

Judicial officer — whether State liable for delict committed by:

Boyd v Minister of Justice, Legal & Parliamentary Affairs 1990 (2) ZLR 364 (H)
As the State cannot direct or control a magistrate in the exercise of his judicial functions, it
cannot be vicariously liable for a delict committed by the magistrate during the exercise of his
judicial functions.

Personal responsibility of State employees:

Mhora & Anor v Minister of Home Affairs & Anor 1990 (2) ZLR 236 (H)
Section 2 of the State Liabilities Act, which renders the State vicariously liable for the acts of
its employees committed in the course of their employment, does not serve to relieve the
employees concerned of liability for their acts.

SUMMONS COMMENCING ACTION CASE No. 019957/98

Issued by CLERK OF THE COURT $25.00 Revenue Stamp(s)

AGISTRATE’S COURT: PROVINCE OF MATABELELAND: HELD AT BULAWAYO

AINTIFF: CENTRE (PVT) LTD a company duly incorporated with limited liability according to the
laws of Zimbabwe and carrying on business as THE SUPERMARKET, Stand
714, Belmont South, Bulawayo.
FENDANT: L C NDLOVU whose full and further names are unknown to the Plaintiff.
DDRESS: 178, Ullswater Drive, Morningside, BULAWAYO.

You are hereby summoned that you do within seven days after the service of this Summons upon you, enter or cause
to be entered with me and also the plaintiff or his legal practitioners at the address specified herein an Appearance
(ie file notice of intention to defend) to answer the claim of CENTRE (PVT) LTD t/a THE SUPERMARKET the
plaintiff herein for $130.00 and costs particulars thereof endorsed hereon/attached hereto.

TAKE NOTICE THAT

1. In default of your doing so you will be held to have to admitted the said claim and the Plaintiff may proceed
herein and judgment may be given against you in your absence, but that on payment of the said claim and costs to
me within said time, judgment will not be given against you herein, and that if, before the expiration of the said time
you so pay or lodge with me and the Plaintiff or his legal practitioner a consent to judgment, you will save Judgment
charges.
2. If you allege any exception, defence or counter-claim you must within seven days after appearance, deliver to me
and to the said plaintiff or his legal practitioners a statement in writing of the nature and grounds thereof.

PARTICULARS OF CLAIM
Plaintiff’s claim is in respect of a certain cheque in the sum of $130.00 dated 3 September 1987 No. 987654
drawn by Defendant in favour of Plaintiff which is the legal holder for value thereof payable at Zimbabwe
Banking Corporation Limited, Samora Machel Avenue Branch, Harare which cheque when presented for
payment on 10 September 1987 was returned by the Bank endorsed “Refer to Drawer”. Despite our letter of
demand, defendant has failed and/or neglected to pay.

WHEREFORE plaintiff hereby prays for judgment against defendant in the said sum of $130.00, interest tempore
morae and costs of suit.

COSTS if the action is undefended:

Letter of demand $A
Legal practitioners summons charges $B
Court fees $C
Messenger fees on re-issue $D SUB TOTAL $ST
Legal practitioners judgment charges $E TOTAL $T

DATE: 23 October _____

SIBANDA, MPUNDU & ASSOCIATES
Plaintiff’s legal practitioners
125 Fort Street, P O Box 5432
BULAWAYO
Telephone: 723456
 Appearance to Defend
[in terms of O 10 R 1]
[this appears on the reverse of the Summons]

Enter an appearance for the defendant who intends to defend the action.

DATED this 23rd day of FEBRUARY, ______

CUM LAUDE
Defendant’s Legal Practitioners
27 Rich Street
HARARE
Address for service:
c/o Cum Laude
27 Rich Street
HARARE

Postal address:
PO Box 1796
HARARE

To: (1) The Clerk of the Civil Court,

Rotten Row
HARARE

(2) Moyo and Moyo

Plaintiff’s Legal Practitioners
Brightlight House
29 Rich Street
HARARE

Note 1: In terms of the Rules where defendant wishes to consent to judgment or to enter an Appearance to
Defend, a notice in the appropriate form shown above must be filed of record with the Clerk of Court and
a copy served on the Plaintiff.

Note 2: In terms of the rules, the plaintiff and the defendant are required to give an address for service within
fifteen kilometres of the court-house from which the summons is issue.
 Request for Default Judgment
[in terms of O 11 R 2]
Form Civ 9 Case No. 1234 / 1998
Request for Default Judgment
AGISTRATE’S COURT: PROVINCE OF MATABELELAND: HELD AT BULAWAYO

AINTIFF: CENTRE (PVT) LTD a company duly incorporated with limited liability according to the
laws of Zimbabwe and carrying on business as THE SUPERMARKET, Stand
714, Belmont South, Bulawayo.
FENDANT: L C NDLOVU whose full and further names are unknown to the Plaintiff.
DDRESS: 178, Ullswater Drive, Morningside, BULAWAYO.

e plaintiff hereby applies that

(1) the defendant having been duly served; and

(2) the time for appearance by the defendant having expired; and

(3) the defendant not having entered an appearance to defend;

judgment may be entered against the defendant as claimed in the summons, together with $102 for interest at 25 per
cent from the date of summons, and costs.

Dated at HARARE this 23rd day of FEBRUARY, 1998

PETERS AND PARTNERS

Plaintiff’s Legal Practitioners
420 Rich Street
HARARE

Capital $A
Summons Costs $B
Judgment Costs $C
TOTAL $T

To: The Clerk of the Civil Court

Rotten Row
HARARE
 Notice of Application for Rescission of Judgment
[in terms of O 30 as read with s 40 of the Magistrates Court Act]
he Magistrates Court for the Province of Matabeleland held at Bulawayo
Case No. 1234 of 1998
he matter of the application of
John Jones, Applicant
against
CD, Respondent
I, JOHN JONES, an engineer of 401 Gurgling Streams Drive, BULAWAYO, hereby make oath and say:
1. I am the Applicant (Defendant) in this action.
2. Application will be made to this Court on TUESDAY the 4th day of MARCH 1998 at 8.30 am or as soon
thereafter as the matter may be heard for an order rescinding the judgment granted by this Court in this action on
the 27th day of DECEMBER 1997.
3. The sum of $26.41 is hereby paid into court in terms of Order 30 Rule 1(3)(a) and 1(3)(b).
4. I first had knowledge of the judgment in this action on WEDNESDAY the 8th day of FEBRUARY 1998.
5. Service of the summons commencing action was effected on the 9th day of DECEMBER 1997, by affixing a
copy thereof to the outer or principal door of my residence at 401 Gurgling Streams Drive, BULAWAYO.
6. I proceeded to South Africa on holiday on WEDNESDAY the 9th day of NOVEMBER 1997, on AIR
ZIMBABWE, Flight UM 270.
7 In consequence I was unaware of the issue or service of the summons commencing action until WEDNESDAY
the 8th day of February 1998, and was, therefore, unable to enter an appearance to defend.
8. I wish to enter an appearance to defend this action on the grounds that on THURSDAY the 9th day of JUNE
1997, the date of the alleged collision, I was neither the owner nor the driver of Rolls Royce motorcar
registration No. 444-666 R, the said vehicle having been sold to BILLY BUNTER of 102 Luckless Street,
BULAWAYO, on TUESDAY the 24th day of May 1987.

JOHN JONES

SWORN TO BEFORE ME, DAVID NCUBE, at BULAWAYO this 27th day of FEBRUARY 1998

COMMISSIONER OF OATHS

RICHARDS AND BROWN

Defendant’s Legal Practitioners
7012 Rich Street
BULAWAYO

TO: (1) THE CLERK OF THE CIVIL COURT

Bulawayo
(2) VOET AND GROTIUS
Plaintiff’s Legal Practitioners
1 Rich Street
BULAWAYO
 Notice of Consent
[in terms of O 30 R 2(1)(a)]

he Magistrates Court for the Province of Matabeleland held at Bulawayo

Case No. 1234 of 1998
he matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that Respondent (Plaintiff) consents to the making of an order rescinding the judgment granted by
this Court in this action on the 27th day of DECEMBER 1997.

DATED at HARARE this 7th day of MARCH 1998.

VOET AND GROTIUS

Plaintiff’s Legal Practitioners
1 Rich Street,
HARARE

TO: (1) THE CLERK OF THE CIVIL COURT

BULAWAYO

(2) RICHARDS AND BROWN

Defendant’s Legal Practitioners
7012 Rich Street
BULAWAYO
 Notice to Oppose Application
[in terms of O22 R 2(1)(b)]

In the Magistrates Court for the Province of Matabeleland held at Bulawayo

Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that respondent (plaintiff) will oppose applicant’s (defendant’s) application for rescission of
judgment set down for 8.30 am on TUESDAY the 14th day of MARCH 1998.

FURTHER TAKE NOTICE that the affidavit of SALLY SLOUCH of which a copy is served herewith will then be
used in support of such application.

AND FURTHER TAKE NOTICE that respondent (plaintiff) will apply for applicant (defendant) to pay the costs of
this application.

DATED at HARARE this 7th day of MARCH 1998

VOET AND GROTIUS

Plaintiff’s Legal Practitioners
1 Rich Street
Harare

TO: (1) THE CLERK OF THE CIVIL COURT

BULAWAYO

(2) RICHARDS AND BROWN

Defendant’s Legal Practitioners
7012 Rich Street
BULAWAYO

NOTE: In the case of service by hand, in order to prove service on the defendant, it is advisable to
type onto the bottom of your copy of the notice words to the following effect.

Received copy of this notice at …… am/pm

on the .……… day of ………… 1998

Richards and Brown
Defendant’s Legal Practitioners
 Request for Further Particulars of Summons
[in terms of O 12 R 2(1)(a)]

In the Magistrates Court for the Province of Matabeleland held at Bulawayo

Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

To enable defendant to plead to plaintiff’s particulars of claim, the following further particulars are required:

Ad Para 1

(a) Where was the agreement of sale concluded?

(b) Was the agreement verbal or in writing? If in writing a copy of the agreement is required. If verbal the full
terms and conditions of the agreement are required.

Ad Para 2

In what way is it alleged that defendant breached the terms of the agreement?

Ad Para 3

How is defendant now indebted for the full amount?

DATED at HARARE this 24th day of FEBRUARY 1998.

SIBANDA AND MPUNDU

Defendant’s Legal Practitioners
127 Rich Street
HARARE

TO: (1) THE CLERK OF THE CIVIL COURT

BULAWAYO

(2) DONDO AND PARTNERS

Plaintiff’s Legal Practitioners
102 Rich Street
BULAWAYO
 Notice of Application for an
Order to Compel the Delivery of Further Particulars
[ in terms of O 33 R 1(2)]

In the Magistrates Court for the Province of Mashonaland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that application will be made to this Court on TUESDAY the 4th day of APRIL 1998 at 8.30 am or
as soon thereafter as the matter may be heard for an order compelling the plaintiff to deliver the further particulars
requested on the 24th day of FEBRUARY 1998, within seven days of the said order.

FURTHER TAKE NOTICE that the applicant (defendant) will apply for an order that respondent (plaintiff) pay the
costs of this application.

DATED at HARARE this 21st day of MARCH 1998.

HIGH AND LOUW

Defendant’s Legal Practitioners
701 Rich Street
HARARE

To: (1) THE CLERK OF THE CIVIL COURT,

ROTTEN ROW
HARARE

(2) HUBERT AND PARTNERS

Plaintiff’s Legal Practitioners
207 Rich Street
HARARE
 Notice of Application for Judgment
[in terms of O 33 R 1(3)]

In the Magistrates Court for the Province of Mashonaland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that application will be made to this Court on TUESDAY the 2nd day of MAY 1998 at 8.30 am or
as soon thereafter as the matter may be heard for an order granting judgment for the applicant (defendant) with costs
by reason of respondent’s (plaintiff’s) failure to deliver the further particulars ordered by this Court on the 4th day of
April 1998.

DATED at HARARE this 14th day of APRIL 1998.

GRUB AND GRAB

Defendant’s Legal Practitioners
127 Rich Street
Harare

To: (1) THE CLERK OF THE CIVIL COURT,

ROTTEN ROW
HARARE

(2) HUBERT AND PARTNERS

Plaintiff’s Legal Practitioners
207 Rich Street
HARARE
 Particulars of Exception to Summons
[in terms of O 14 R 1(1) and 2(a) or 2(b) or 2(c)]

In the Magistrates Court for the Province of Mashonaland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that Defendant excepts to plaintiff’s summons on the grounds that it does not disclose a cause of
action.

[OR]

that it is vague and embarrassing, in that the month for which rent is allegedly due in respect of the premises situate
at 1027 Willows Avenue, HARARE, has not been specified.

FURTHER TAKE NOTICE that the plaintiff is required to remove the cause of complaint within forty-eight hours
(or seven days) of receipt of this notice failing which it is the defendant’s intention to set the matter down for
hearing.

DATED at HARARE this 7th day of MARCH 1998.

JUSTINIAN AND HADRIAN

Defendant’s Legal Practitioners
1700 Rich Street,
P O Box 1234
Harare

To: (1) THE CLERK OF THE CIVIL COURT,

ROTTEN ROW
HARARE

(2) HUBERT AND PARTNERS

Plaintiff’s Legal Practitioners
207 Rich Street
HARARE
 Notice of Set Down of Exception
[in terms of O 14 R 7(2)]

In the Magistrates Court for the Province of Mashonaland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that defendant’s exception to plaintiff’s summons particulars of which were filed of record on the
7th day of MARCH 1998 at 8.30 am or as soon thereafter as the matter may be heard.

FURTHER TAKE NOTICE that defendant will make application for plaintiff to pay the costs of the exception.

DATED at HARARE this 14th day of MARCH 1998.

JUSTINIAN AND HADRIAN

Defendant’s Legal Practitioners
1700 Rich Street
P O Box 1234
HARARE

To: (1) THE CLERK OF THE CIVIL COURT,

ROTTEN ROW
HARARE

(2) HUBERT AND PARTNERS

Plaintiff’s Legal Practitioners
207 Rich Street
HARARE
 Notice to Plead
[in terms of O 11 R 3]

In the Magistrates Court for the Province of Matabeleland held at Bulawayo

Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that the defendant is required to file and deliver his plea or other answer to the plaintiff’s claim
within forty-eight hours of the receipt of this notice, failing which it is the plaintiff’s intention to apply for judgment
in default.

DATED at HARARE this 20th day of FEBRUARY 1998.

VOET AND FOOT

Plaintiff’s Legal Practitioners
1202 Rich Street
HARARE

To: (1) THE CLERK OF THE CIVIL COURT,

BULAWAYO

(2) HUBERT AND PARTNERS

Plaintiff’s Legal Practitioners
207 Rich Street
BULAWAYO
 Request for Judgment in Default of Plea
[in terms of O 11 R 3]

In the Magistrates Court for the Province of Matabeleland held at Bulawayo

Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

The plaintiff hereby applies that —

(1) Summons having been issued and duly served;

(2) Appearance to defend having been entered;
(3) No plea having been delivered as provided by Order XV;
(4) Notice in terms of Order 11 rule 3 having been served at 3.00 pm on the 21st day of February 1998. (Proof of
service attached);
(5) Defendant having failed to deliver his plea within forty-eight hours of the receipt of such notice;

judgment may be entered against the defendant as claimed in the summons with costs together with $_________
for interest at __________ per cent from the date of summons.

DATED at HARARE this 24th day of FEBRUARY 1998

VOET AND FOOT

Plaintiff’s Legal Practitioners
1202 Rich Street
HARARE
Capital $A
Summons Costs $B
Notice to plead $C
Judgment Costs $D
TOTAL $T

To: (1) THE CLERK OF THE CIVIL COURT,

ROTTEN ROW
HARARE

(2) HUBERT AND PARTNERS

Defendant’s Legal Practitioners
207 Rich Street
HARARE
 Notice of Application for Summary Judgment
[in terms of O 14]

Form Civ 11

In the Magistrates Court for the Province of Mashonaland Central held at Harare
No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

TAKE NOTICE that application will be made to this Honourable Court on TUESDAY the 14th day of MARCH
1998 at 8.30 am or as soon thereafter as the matter may be heard, for leave to enter judgment against you in this
action for the sum of $1000 and costs.

FURTHER TAKE NOTICE that the affidavit of PETER PRIDE relating to dishonoured cheque No 456789, dated
the 4th day of November 1997 for $1000, of which a copy is served therewith, will then be used in support of such
application and that you may reply thereto by affidavit.

DATED at HARARE this 27th day of FEBRUARY 1998.

HOW AND WHY

Plaintiff’s Legal Practitioners
1001 Rich Street
Harare

To: (1) THE CLERK OF THE CIVIL COURT,

ROTTEN ROW
HARARE

(2) HUBERT AND PARTNERS

Plaintiff’s Legal Practitioners
207 Rich Street
HARARE
 Affidavit in Support of Application for Summary Judgment
[in terms of O 14 R 1(2)(a)]

I, PETER PRIDE of 727 Greentrees Drive, Harare, a surgeon, hereby make oath and say:-

1. I am the plaintiff in this action. The facts herein stated are within my own knowledge, and I am duly authorized
to make this affidavit.

2. The defendant is indebted to the plaintiff in the sum of $1000 on the grounds stated in the summons.

3. I verily believe that the defendant has not a bona fide defence to this action and that appearance has been entered
solely for the purposes of delay.

SWORN TO BEFORE ME at HARARE this 27th day of FEBRUARY 1998

COMMISSIONER OF OATHS
 Application for a Garnishee Order
[in terms of O 28 as read with s 34 of the Magistrates Court Act]

In the Magistrates Court for the Province of Mashonaland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

APPLICATION is hereby made for a Garnishee order to be granted in this matter. Four copies of the draft order are
attached.

DATED at HARARE this 16th day of MARCH 1997

HISLOP AND MUCHEMWA

Judgment Creditor’s Legal Practitioners
1777 Rich Street
HARARE

To: THE CLERK OF THE CIVIL COURT

ROTTEN ROW
HARARE
 Supporting Affidavit
[in terms of O 28 R 1(2)]

Form Civ 37
Affidavit in Support of Application for Garnishee Order

In the Magistrates Court for the Province of Matabeleland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of
AB, Applicant
against
CD, Respondent

I, [Name] of 47 Long Avenue, HARARE, make oath and state:

1. That I am the judgment creditor in this matter

[OR]
That I am employed as a professional assistant by Muchemwa and Mutasa the judgment creditor’s legal
practitioners and am authorized to act on behalf of the judgment creditor in this matter.

2. That I obtained judgment.

[OR]
That the judgment creditor obtained judgment against the judgment debtor in this action in this Court on the 14th
day of MARCH 1998, for the sum of $5 000 and costs.

3. That the judgment is still unsatisfied to an amount of $3 500.

4. That the garnishee carries on business at 427 Jason Moyo Avenue, Harare, within the province of this Court
and is and will be indebted to the judgment debt or for salary or wages in an amount of $5 000 per
month.

5. That to the best of my knowledge and belief the judgment debtor will, after the execution of the order sought,
have a sufficient balance of income arising from the source set out above to maintain himself and those dependent
upon him, ie his wife and 3 minor children.
(Signature of Deponent]
SWORN before me [Name] at HARARE this 16th day of MARCH 1998.

COMMISSIONER OF OATHS
 Garnishee Order
[in terms of O 28 R 1(4) as read with s 34(6) of the
Magistrates Court Act]

Form Civ 38
Garnishee Order

In the Magistrates Court for the Province of Mashonaland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of

AB, Applicant
against
CD, Respondent

WHEREAS it has been made to appear to the above court that the garnishee is indebted to the judgment debtor and
that the debt is now due and is not for salary or wages (or, that the debt is now due and that the judgment debtor
will, after the execution of this order, have a sufficient balance of income to maintain himself and those dependent
on him):

It is ordered:
That all debts owing by the garnishee to the judgment debtor to an amount not exceeding $240 be attached to answer
a judgment recovered against the judgment debtor by the judgment debtor by the judgment creditor in the High
Court on the 14th day of MARCH 1998, for the sum of $200 and costs, on which judgment the sum of $240
remains due and unpaid.

That the garnishee do pay to the messenger of this court the said sum of $240 together with $350, the cost hereof
(but not exceeding in all the sum of $590), out of his said debts to the judgment debtor, or, failing such payment,
that the garnishee appear before this court on the 31st day of MARCH 1998, at 8.00 am, then and there to show
cause why he should not pay the same.
Dated at Harare this 1st day of April, 1998, at 10 hours 30 minutes in the fore noon.
By Order of the Court.
………………………………
Clerk of the Court
……………………………………………
Legal practitioner for Judgment Creditor

To the above-named Garnishee:

If the debt due by you to the above-named judgment debtor was not owing both at the day and hour above
mentioned and at the time when this order was served upon you, or if the debt is alleged to be in respect of future
salary or wages and such debt will not become due or is subject to any set off or lien of some other person, you
should appear at the court and prove the facts. If you do not appear, you may be compelled to pay the debt twice
over.

To the above-named Judgment Creditor:

If the judgment against you has been satisfied, or is for any reason no longer operative against you, or if the debt is
due to you or to become due to you to maintain yourself and those dependent on you, you should appear at the court
and prove the facts; but you cannot be heard on any other point.

/over
 Summons for Civil Imprisonment
[in terms of O 28 R 1]

Form CIV 35
SUMMONS FOR CIVIL IMPRISONMENT

In the Magistrates Court for the Province of Mashonaland Central held at Harare
Case No. 1234 of 1998
In the matter of the application of

AB, Applicant
against
CD, Respondent
I: NOTICE TO DEFENDANT
You, the defendant, are called upon to pay to [the judgment creditor] the sum of ............................., with interest
thereon at the rate of ................, per cent per annum from the ......................................., 19............., to the date of
payment. You are required to pay this sum by virtue of a judgment obtained against you in the Magistrates Court at
....................................... on the ............................... 19............., under which you were ordered to pay the sum of
....................................... You were also ordered to pay the costs of that case, which amount to
.........................................

II: WHAT DEFENDANT MUST DO

If you fail to pay the sum specified above, you must appear before the Magistrates Court at ..............
........................................ on the ............................ 19............, at ...............a.m./p.m. to explain why you have not
paid it and to show cause why an order for your imprisonment should not be made on account of your failure to pay.
You should bring with you evidence of your financial position, and it will be in your own interests to give the court
evidence of —
(a) your income from wages, salary or other earnings and any other income you may receive from any other
source (you should bring wage slips or other proof of your income(;
(b) your expenses for yourself and any dependants (bring documentary proof such as rent receipts, water and
light accounts, accounts for school fees, insurances policies, etc.);
(c) any other liabilities to which you may be subject.

The court will conduct an inquiry into your financial position and, depending on the circumstances, it may not
comit you to prison but instead give you further time to pay the sum due or direct you to pay it in instalments over a
specified period.

You are at liberty to approach the judgment creditor before the date of the hearing and make an offer of
settlement of the sum due.
III: FAILURE TO ATTEND
Unless you pay the judgment creditor the sum specified in section I above, or unless the judgment creditor accepts
an offer of settlement which you have made to him, you must appear before the Magistrates Court on the date and at
the time specified above in section II. If you do not do so, a warrant for your arrest may be issued and you may be
committed to prison.
Form CIV 29
Warrant of execution against property

(Heading)
To the Messenger of the Court.

Amounts to be levied
(with costs of execution)
Judgment debt
Costs
Costs of issuing warrant
Costs of appeal
Total

This is therefore to authorize and require you that you cause to be levied from the property of the said defendant the
said sums set out in the margin hereof together with your costs of this execution any pay the said sum to the said
plaintiff for which this shall be your warrant.

(Conclusion)

Note —

(1) If the judgment debtor pays the amounts specified in the margin hereof with the messenger’s charges of
$…………… within half an hour after the entry of the messenger, he will be not be required to pay any further costs
of execution.

(2) This execution may be paid out before sale, subject to the payment of the messenger’s fees and charges of
execution, which may be required to be taxed.

(3) The only immovable property upon which this warrant may be executed is (set out its situation and nature
sufficiently to enable it to be identified).

(4) Security for restitution to be required unless it is dispensed with the judgment debtor or notice of attachment is
given to him personally.