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
defence 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 inconconsistent
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 R4.

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.f

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 dependents.

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).