Civil Procedure Tutorials

1) Explain the Jurisdiction of the magistrates Court

The jurisdiction of the magistrate’s court can be subdivided into, financial jurisdiction,
jurisdiction on persons and territorial jurisdiction. What informs? Is a creature of
statute hence all is guided by the MCA. Which statutory instrument? Governs
Nature of the claim? Issues regarding cause of action
Jurisdiction in respect of the Causes of action, important to note on cause of action
has cause of action except those listed in section 14
 Ejectment right of occupation should not exceed the monetary jurisdiction
such amount that may be prescribed by the rules
 in actions in which is claimed the delivery or transfer of any property, movable
or immovable, where the value of such property does not exceed such
amount as may be prescribed in rules, whether in lieu of or in addition to any
other claim, which shall include a claim for the cancellation of any agreement
relating to such property;
 liquid document
 marriages in terms of the Customary marriages Act
 General Law and customary law, UCLU provided in terms of section,
 In relation to oral wills, subject to limitations.
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.
Persons: s11(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: in relation to the defendant.
a) resides in province;
b) carries on business in province;
c) is employed in province;
d) any person in respect of any proceedings incidental to any action or
proceedings instituted in the court by such person;
e) 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
a) its business premises are situated in the province; or
b) Any member of the partnership resides in the province.
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
distribution 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
marriages solemnized in terms of the Customary Marriages Act;

General Law Jurisdiction

a) 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)
b) 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)
c) 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)
d) 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)
e) 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)
See section 14 for no jurisdiction aspects

2) Explain the concept of extended jurisdiction. Under what circumstances can

the jurisdiction of the magistrate’s court be extended?

This is power given to a resident magistrate to hear matters that would otherwise fall
in the original jurisdiction of the High Court. Appeal from decision of the RM with
extended Jurisdiction is lodged in the Court of Appeal. Usually for the claims relating
money.

The jurisdiction of the magistrate’s court can be extended in the following

 Jurisdiction through Consentwith regard to all actions, except such as are set
out in section fourteen, if both parties agree by a memorandum signed by
them or their respective legal practitioners that the court named in such
 memorandum shall have power to try such action, such court shall have
jurisdiction to try the same therein;
 in actions wherein the sum claimed, being within the jurisdiction, is the
balance of an account, the court may inquire into and take evidence if
necessary upon the whole account even though such account contains items
and transactions exceeding the amount of the jurisdiction;
 where the amount claimed or other relief sought is within the jurisdiction, such
jurisdiction shall not be ousted merely because it is necessary for the court, in
order to arrive at a decision, to give a finding upon a matter beyond the
jurisdiction, and, in considering whether a claim is or is not within the
jurisdiction, no prayer for interest on the principal sum claimed or for costs or
for general or alternative relief shall be taken into account;

Jurisdiction is extended, by consent of the parties concerned, by abandonment of

part of the plaintiff’s claim, by deduction by the plaintiff of a debt which he admits to
owing the plaintiff.

3) Define and discuss the difference between attachment to found jurisdiction

and attachment to confirm jurisdiction. Briefly explain what type of claim and
for what type of litigants it is available to.

Highlight that the magistrates court has jurisdiction over these,.

13 Attachment to found or confirm jurisdiction

A court may order attachment of person or property to found or confirm jurisdiction

against any person who does not reside in Zimbabwe in respect of an action within
its jurisdiction where the claim or the value of the matter in dispute amounts to such
amount as may be prescribed in rules, exclusive of any costs in respect of the
recovery thereof, and may grant an order allowing service of any process in such
action to be effected in such manner as may be stated in such order.

Attachment to either found jurisdiction (where no ratio jurisdictionis happens to exist)

attachment to found jurisdiction is necessary when the defendant is foreign and no
other jurisdictional basis exists.

Confirmation of jurisdiction is necessary when there is another basis for the court’s
jurisdiction but the defendant is not resident inside the country. In both instances the
purpose. Is to strengthen and make the judgements of the

In both instances the purpose of the attachment of goods is to give effect to the order
of the court. "Where the plaintiff (or applicant) is an incola and the defendant (or
respondent) is a foreign peregrinus (i e a peregrinus of the country as a whole) the
arrest of the defendant or attachment of his or her property is essential. The
corollary of this rule is that the arrest of a peregrinus or the attachment of his or her
property at the suit of an incola establishes jurisdiction even if no other ground to
exercise jurisdiction exists."
Where a plaintiff is resident within the area of jurisdiction of the court, he may attach
D’s property (which property must be within the jurisdiction of the court) in order to
found jurisdiction without there being any other basis of the court’s jurisdiction. This
means the cause of action may have no connection with that area other than the
attachment. Where the plaintiff is not resident within the area of jurisdiction and the
defendant is foreign then both a recognised basis for jurisdiction and an arrest or
attachment are necessary.

4) Discuss whether there is anything called implied jurisdiction in the magistrates

court

5) What is the difference between “arrest suspectus quantum de fuga” and arrest
to found jurisdiction?

If a debtor tries to leave the country in order to prevent a court from giving judgment
against him, a creditor may apply for an order to satisfy the court’s judgment. If a
judgment has already been granted against a judgment debtor and he thereafter
flees to another country the judgment creditor can then follow him to another country
to enforce that judgment in a foreign country. The fleeing debtor must be physically
within the jurisdiction of the court issuing the order at the time. As per section 12 of
the magistrates court. The person is already within the jurisdiction of the court.

The applicant appears has no security for the debt, the JD is about to flee, the cause
of action is not beyond the jurisdiction of the magistrates court.

When the defendant is foreign and the court has jurisdictional basis but arrests to
found jurisdiction, similar in that the judgement by the court should be effective in its
nature.

6) With the aid of case law, define what is meant by the term cause of action

Cause of action

Every material fact that would allow the plaintiff to succeed in their pleadings
Facta probanda facts in issue and FactaProbantia, facts necessary to prove facts in
issue

Dube v Banana 1998 (2) ZLR 92 (HC)

In D Abrahamse& Sons v SA Railways and Harbours 1933 CPD 626 at 637

WATERMEYER J said:

``The proper legal meaning of the expression `cause of action' is the entire set of
facts which gives rise to an enforceable claim and includes every act which is
material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a
plaintiff must set out in his declaration in order to disclose a cause of action. Such
cause of action does not `arise' or `accrue' until the occurrence of the last of such
facts and consequently the last of such facts is sometimes loosely spoken of as the
cause of action.''

GUBBAY J (as he then was) in Patel v Controller of Customs & Excise 1982 (2) ZLR
82 (H) at 85 where he said:

``In Controller of Customs v Guiffre 1971 (2) SA 81 (R) at 84A, BECK J (as F he then
was) discussed the meaning of the phrase `the cause of the action' and adopted the
definition of LORD ESHER MR in Read v Brown (l888) 22 QBD 131 as being every
fact which it would be necessary for the plaintiff to prove if traversed, in order to
support his right to the judgment of the court. It does not comprise every piece of
evidence which is necessary to prove such fact, but every fact which is necessary to
be proved.''

Generally, the cause of action means the combination of facts that are material for
the plaintiff to prove in order to succeed in his action. The facts must enable the
court to reach a conclusion regarding unlawfulness and fault and also damage. The
occurrence of either patrimonial loss or emotional harm (for example contumelia,
pain or mental illness) completes the delictual cause of action
7) Discuss the various ways which are available to a plaintiff who has a claim
which exceeds the monetary jurisdiction of the magistrates Court to bring
such claim within the jurisdiction of the magistrate’s court.

Abandonment you have to expressly state within the summons, consent the consent
has to be done before the arising of the claim, deduction of amount claimed.
 8) Sally sued her Mutare Legal Practitioners for a refund of a purchase price
deposited in the Legal Practitioners Trust Account. The summons were
served on Mrs. Badza at Crown Plaza where she was staying during her
business visit to Harare. The summons were issued out atGokwe Magistrates
Court. As a legal practitioner practicing in Mutare, Mrs. Badza, who is
returning to Mutare the following day consults you for advice.
What would be your advice to her without going into the merits of claim?

Service on partnerships, at the partners at the place of business but also

Order 7 rule 5(e) delivery to any of the partners. Tawona Investments case
1988 there must be a connection between on the person served, there should
be some degree of answerability. Temporary residence then can’t be served.
Issue of Jurisdiction, Gokwe has no jurisdiction in this issue. As the cause of
action arises out of Gokwe.
Difference between address of service and normal address.
9) On the 7th of January 2013, a summons commencing action was issued out of
Mutare Magistrate court at the instance of the Plaintiff who lives and works in
Mutare for a sum of $10 000 in respect of damages sustained as a result of a
motor collusion which occurred in December 2011. The collusion was
between plaintiff and defendant’s motor vehicle and had occurred in
Bulawayo.
The summons were issued and served on the same day. The summons had
been served on the director Civil Division for and on behalf of the defendant.
The defendant entered an appearance to defend.
Advise the plaintiff on the following issues
i) Whether the Mutare Magistrates Court has jurisdiction to entertain the
matter?
ii) Defendant being the ministry of home affairs who should be served
with the summons

i) Jurisdiction in terms of the cause of action: the Mutare court

If it is in relation to someone in the police, the summons have to be served on the
Commissioner of Police or his private secretary.
Deputy Secretary of finance and administration or his private secretary.
Director of Civil division of the AG’s office at the director’s office.

10)What is the general rule regarding dies induciae after the service of summons
The defendant is called upon in the summons to enter an appearance to defend the
action within the stipulated time. This is provided for as per Order 8 rule 1 subrule
2(a) and (b). This provides that he must enter the appearance to defend within seven
days if the defendant does reside; or fourteen days if the defendant does not reside;
within the jurisdiction of the court from which the summons is issued.

11)With the aid of case law distinguish between place of residence and
domicilium et citandi

The meaning of domiciliumetcitandi is the address nominated by a party in a

legal contract with where legal notices may be sent; the onus thereafter
usually being upon that party to notify the other signatory of any change in
address, but especially to be ready to receive any notice that is delivered to
that address
A person can have numerous places of residence.
Domiciliumcitandi
Central African Building Society v Dube2000 (1) ZLR 50 (HC)the defendant
borrowed money from the plaintiff in order to build a dwelling house on a vacant plot
of land owned by him. The loan was secured by a mortgage bond over the plot. In
the standard form mortgage contract the plot was named as the defendant's
domiciliumcitandietexecutandi. Before any building had been constructed on the
vacant plot, the defendant defaulted on his loan repayment and the plaintiff claimed
the recovery of the loan amount. The Deputy Sheriff went to the defendant's plot to
serve the process. Finding that the plot was vacant, undeveloped and unoccupied,
the Deputy Sheriff purported to serve the process by affixing it to a prominent tree on
the plot.
12)Is a return of service conclusive proof of service? Explain with the aid of case
law
The case raises a presumption Moreover, it does seem to me that the maxim
omniapraesumuntur rite esseacta applies to a return of service effected by the
messenger of the court. Rule 3(a) of Order 2 of the Magistrates Court (Civil) Rules
1980 provides that the return must be in the prescribed form and must state the date
and the manner of service. Where ex facie the return there has been compliance
with this rule (as in this case), the presumption of regularity arises.
When it is done by an officer of the
Does it apply across the board?
 13)Explain the concept of substituted service

The concept denotes that Where service cannot be effected in any manner or on any
day or at any time prescribed, the court may, upon evidence of that fact and that the
action is within the jurisdiction of the court, make an order allowing service to be
effected in such manner or on such day or at such time as may be stated in such
order, including notice by advertisement in substitution for or in addition to service.
Order 7 rule 8
Resorted where the defendant cannot be located by the court and there is resorting
to any other means by any manner that the court sees fit. Meant to effect legal
remedy and not held at ransom by the defendant.

14)Requirements of the plaintiff’s address of service

The summons must contain an address for service within fifteen kilometres of the
court-house from which it is to be issued; and the postal address of the plaintiff.
Where there are fewer than three legal practitioners practising independently of one
another within fifteen kilometres from the court-house from which the summons is to
be issued, the address for service may be one which is farther than fifteen kilometres
from the court-house.
The summons above is not proper because the address that is given is further than
the 15 km, away from the Mbare Magistrates court. This is provided for in terms of

15)Explain the significance and meaning of a counterclaim. Where a counter

claim exceeds the monetary jurisdiction of the Magistrates court, what action
should be taken?
Is when a defendant makes a claim in reconvention against the other, these are in
general treated as claims in reconvention. If the court is satisfied that the defendant
has a prima facie reasonable prospect on his counterclaim of obtaining a judgement
in excess of its jurisdiction, stay the proceedings for a reasonable period in order to
enable him to institute an action in a competent court, if the period expires and the
defendant has failed to issue and serve summons in a competent court in relation to
matters and the subject the court shall on application either stay the action for
further period or dismiss the CC whether or not D reduces the CC to an amount
within the jurisdiction of the court.
The defendant may abandon that part of the claim, which exceeds the jurisdiction of
the court. Or he may apply to the court that the CC be adjudicated in another court.
The defendant who institutes the action is known as the plaintiff in reconvention
while the plaintiff in the main claim is known as the defendant in reconvention. The
magistrate’s court can try these separately but judgment has to be given
simultaneously.
16)The plaintiffs claim is against the defendant for damages of 800.00 arising out
of a collusion which occurred between a motor vehicle Reg. no ACB223
driven by the plaintiff and motor vehicle Reg. no ABB234 driven by the plaintiff
on the 12th of June 2013 at the corner of Samora Machel and 2 nd Street,
Harare.
a) In what respects is the particulars of claim defective?
b) What procedures would you use to object to the defect?
a) In the particulars of claim the basis of the action and the relief sought by the
plaintiff are set out. The plaintiff gives a description of the facts that gave rise
to the claim. The prayer forms particulars of the claim the plaintiff says such
and such happened, the defendant is consequently legally liable to me for
damages and so I am going to ask the court to grant me the relief sought in
the prayer.
The particulars of claim do not set out how the plaintiff arrives at such a
quantum of damages, also the cause of action is not established, that is how
the defendant is at fault in this accident. That is whether he was negligent or
driving at an excessive speed, what makes the defendant liable.
b) The exception is used to object to the plaintiffs summons, the defendant avers
in his defence that the plaintiffs claim as set out in the summons is defective
and that the plaintiff ought to not to succeed in his claim. An exception is
granted where it is proved that the summons do not disclose the cause of
action, that the summons are vague and embarrassing.
The summons must disclose the facta probanda that is the facts in dispute.
Where a plaintiff summonses a defendant on the basis of damage sustained
as a result of a motor collusion by the alleged negligence of the defendant the
facts that the plaintiff must allege in order to disclose a cause of action are
i) That he has suffered harm
ii) As a result a collusion with a vehicle driven by the defendant
iii) That the collusion was caused by the negligence of the defendant.
The request furnished by the plaintiff in response to a ROP also forms part of
the particulars of claim disclosed in the summons, the exception may thus be
taken after the plaintiff has furnished his FPOC. The defect goes to the root of
the matter. Should set out how he arrives to the quantum of damages
The exception is taken by way of notice of motion without an affidavit
17)What do you understand by the term confession and avoidance? Give two
examples of pleas of confession and avoidance.
The defendant may admit to the facts pleaded by the plaintiff but aver fresh
facts which avoid the normal legal consequences of the facts upon which the
plaintiff relies. The defendant may admit that he borrowed money from the
plaintiff as alleged but he may aver that the amount has been repaid in full to
the plaintiff. Usually get the onus to aver the evidence.
Confession and avoidance will be typical in the following instances payment,
discharge, necessity, tender and payment into court. The defendant will
usually assume the duty to place before the court evidence to substantiate his
avoidance. E.g. In a claim of defamation and raise a defence of truth. Claims
sounding in money. Defences of necessity.

18)On the 10th of February 2014, the defendant removed (20) pigs, the property
of the plaintiff form the plaintiffs farm. The defendant sells the pigs and is
unable to return them to the plaintiff. The value of the pigs was $500.00 the
defendant pleas as follows
“The defendant denies being indebted to the plaintiff as alleged. Wherefore
the plaintiffs claim should be dismissed with costs.”
a) How would you categorise this plea?
b) Discuss giving reasons, whether it is an acceptable plea or not?
a) This plea can be categorised as a bare denial, the defendant is expected to
deal to deal with the averments that are made by the plaintiff in his particulars
of claim. In this case it is thus not clear as to what the defendant is denying. In
effect this will be vague and embarrassing as the plaintiff is not informed as to
the basis of the defendants defence.(need to set out facts in pleadings)

b) This is not acceptable as it is vague and embarrassing as it leaves the plaintiff

not sure and clear as to what the defendant’s defence lies. This also is vague
and embarrassing. Seeking to gain time. It’s not about ambushing each other
and the plaintiff must be placed in a position to prepare and informed of the
case he is facing. Then go to the rationale.

19)On the 4th of March 2014, Mucha was served with summons commencing
action on 7days notice, claiming payement of monies due on a “refer to
 drawer” Cheque. He entered an appearance to defend on the 11 th of March
2013 and filed his plea simultaneously.
a) What is your comment on Mucha’s conduct?
b) What recourse is open to Mucha’s creditor as a consequence?
c) In fact, Mucha does not dispute the claim and upon receipt of the
summons (although she had entered an appearance to defend) consults
the quickest way to resolve the matter. What would you advise him?
a) This is a liquid document, a claim based on a liquid document but it is
just for the purposes of buying time.
b) The recourse that is open to Mucha’s creditor is that of summary
Judgement. The entering of a plea has no effect on the application of
summary judgement. Where the person has no bona fide defence.
Requirements of Summary Judgment. Order 15(2) on notice within 7
days after AD has been filed. The plaintiff can attach the Liquid
document only and not any other document.
You can apply by way of attaching affidavit
Know the position of the law in regard to illiquid claims
c) Payment into court there is judgement entered against the defendant
it’s the quickest way (payment in full and final settlement) payment
without prejudice, payment by way of tender.

20)Outline the considerations a party takes into account in deciding whether to

proceed by way of action procedure or application procedure.
The considerations that a party takes into account are that, whether it is a
material dispute of fact, application where you anticipate no material dispute
of fact. Action where you anticipate a material dispute of fact.
Also depends on the type of relief that is sought.
Whether it is urgent or not.
Specifically provides, except where otherwise provided, an application to the
court for an order of arrest, interdict or attachment or for a mandament van
spolie under section 12 of the Act may be made ex parte. It is a creature of
statute

21)What are the essential differences between application and trail procedure?
The differences are that application procedure is quicker than the action
The app-notice of motion, and action by way of commencing action
Defendant and respondent applicant
Nature of documents
No distinction between the two
 22)Discuss the circumstance
(1) Where a defendant—
(a) Consents to judgment in terms of rule 1; or
(b) Has failed to enter an appearance to defend and the plaintiff has
requested judgment in terms of rule 2; or
(c) Has failed to deliver a plea as provided by Order 16 and the plaintiff has
requested judgment in terms of rule

Civil Procedure Tutorial 2

1) Discuss the circumstances when default Judgement may be entered against a
defendant or plaintiff
Where a defendant has failed to enter an appearance to defend and has not
consented to Judgement is entered in the absence of the person of whom the
judgement is made against.
Where the defendant enters an AD but thereafter fails to deliver a plea within the
time limited
If the plaintiff or applicant does not appear at the time set down for the hearing in the
trail of the action or the application Judgement will be granted
If a party fails to comply with an order of the court as provided for by the rules eg
ROFP on notice to opponent

2) Is there difference between unconditional payment into court, payment into

court without prejudice and tender
Unconditional Payment :A defendant may at any time pay into court
unconditionally the amount claimed in the summons, and thereupon all further
proceedings in the action shall be stayed, save as hereinafter provided for the
recovery of any costs not included in such payment: admission of liability,
Def. can make unconditional payment into court with admission of liability
-- Matter then terminates
-- Plaintiff only entitled to costs up to that point
-- Defendant is not a judgment debtor
Can be used for claims sounding in money
Payment without Prejudice: to do so without admitting liability the advantage
lies in the final adjudication of the costs. If a D makes a PWP for a portion of
 the claim and the matter goes to trial and the D is found liable only for that or
for a lessor amount then the plaintiff will not be able to recover cost of the trial
this is not disclosed until the court decides liability.

A defendant may, without prejudice (without admitting liability), pay an amount into
court by way of offer in settlement of the plaintiff’s claim.

3) Recession of Judgement is granted to the applicant when they satisfy a

certain threshold of requirements Outline and explain these requirements.

4) What is the difference between consent to judgement and unconditional

payment into court
The difference lies in that with CTJ there is judgment that is entered against
the defendant whereas with the UPC there is no judgment entered against
UPC is done prior to judgement and the defendants name will not appear on
the list of JD’s

5) Describe the order in which proceedings in a straightforward civil action

procedure may take in the magistrates court up to the trial stage

6) What is the difference between an exception and a special plea

The exception is used in order to object to the plaintiffs summons it is possible
for a plaintiff to except to the defendant’s plea the purpose of the exception is
to have plaintiffs summons dismissed by the court on the basis that of some
formal defect in the summons itself cheap quick way to settle the dispute
a) The basis of the exception must appear ex facie the pleading to which the
exception is taken. The exception rests upon a legal argument and no new
facts apart from those mentioned in the pleadings may be placed. It is
assumed the facts in the pleadings are true. Whereas with a plea the basis
of the defence does not appear form the pleadings but rather there is
averring of new facts. Evidence may be led in SP and not in Exceptions
 b) The exception is taken to a pleading as a whole and not to a portion of the
pleadings unless such portion gives a separate cause of action or defence.
While SP is defence to averments made in the pleading.
c) Exception can be raised by the plaintiff as well as the defendant while the
SP may be raised only by the Defendant. E.g. res judicata

7) What is the difference between an exception and a motion to strike out

The purpose of the application to strike out differs from the purpose of the
exception. The exception is used inorder to note an objection to the pleading
as a whole while the SO is used to raise objections to portions of the
pleadings. An exception goes to the root of the P of Claim or defence
contained in the pleading whereas an application to strike out attacks
individual paragraphs.

8) With the aid of case authority, critically compare and contrast the request for
further particulars to be supplied in terms of order 12 rule 2 and order 12 rule
3 of the magistrates court civil rules.
TIMSECURITY (PVT) LTD v CASTLE HOTEL (PVT) LTD 1972 (3) SA 112
A litigant is entitled to know the case or defence he has to meet; not only to
know whether he should admit or deny the particular allegation. He must not
be put in the embarrassing position of being forced to resort to a bare denial
by the lack of particularity; a denial which, in the light of particulars supplied at
a later stage, he might well be obliged to withdraw, or qualify. He should be in
a position honestly to deal with the matter and either to admit or deny an
allegation in the light of the particulars furnished.

9) What is the effect of an admission to plea

10)What amounts to a valid plea at law

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.
11)How is a plea amended? What are the considerations that a court takes into
account before they allow a plea to be amended

It is clear that the Court has a discretion to grant or refuse an application for
amendment of pleadings. The tendency of the decisions has been towards
allowing amendments where this could be done without prejudice to the other
party. (Moolman v. Estate Moolman and Another, 1927 CPD 27 at p. 29). On
the other hand if the application to amend is mala fide or if the amendment
causes an injustice to the other side which cannot be compensated by costs,
or, in other words, if the parties cannot be put back for the purposes of justice
in the same position as they were in when the pleading it is sought to amend
was filed, the application will be refused I consider that the true position in the
case of the withdrawal of an admission is as follows. The Court has a
discretion but will require a reasonable explanation both of the circumstances
under which the admission was made and of the reasons why it is sought to
withdraw it. In addition, the Court must also consider the question of prejudice
to the other party. If the result of allowing the admission to be withdrawn will
cause prejudice or injustice to the other party to the extent that a special order
as to costs will not compensate him then the application to amend will be
refused

12)State four ways in which a pre-trialconference can be held in the magistrates

court
In the presence of the Magistrate, Meromuto by the court 019 R3 SR
Between the parties them at their own time O19 R 1 SR 1
SR 6
SR4

Civil Procedure tutorial 3

1) Under what circumstances would a court grant absolution from the
instance?
A defendant is entitled in cases in which the plaintiff bears the onus to proof to
apply at the close of the plaintiff’s case for an order of AF instance. The
defendant submits that the plaintiff has not made out a case for the relief he
seeks and that in consequence there is no case for the defendant to answer.
He avers that no purpose would be served in proceeding with the trial. Criteria
is to determine whether the evidence adduced by the plaintiff is such that a
reasonable person might be able to reach a finding in the plaintiffs favour on
the strength of the evidence. Part of the onus rests on the defendant there is
 no room for application since it is not yet clearly precise which facts will be
ultimately proved.
AF instance is also granted at the close of the case. If it appears to the court
that the evidence does not justify it granting in favour of the plaintiff or the
defendant. The court cannot determine which side has spoken the truth. If the
onus rests on the defendant and he fails to prove such the court will grant
judgement in favour of the plaintiff.

2) Advice to Mr Moyo would be to apply for a review as this pertains to

procedural irregularities in the case this is provided for in terms of S26 of
the high court Act. This states the grounds of review issues of natural
jsutice
(a) absence of jurisdiction on the part of the court, tribunal or authority
concerned;
(b) interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or
tribunal concerned or on the part of the authority concerned, as the case
may be;
(c) gross irregularity in the proceedings or the decision.

3) Advise Mrs Small House on whether she can recover costs incurred in
defending the matter and inclusion in the taxation of costs on a party to
party scale.
Where an action is defended and it is impossible for a party to obtain the services of
a local legal practitioner, he may employ the nearest available or some other legal
practitioner, and upon proof thereof the court may, if costs are awarded to him, order
that such costs shall include—
(a) The reasonable travelling expenses of such legal practitioner; and
(b) A special allowance not exceeding ten dollars for each day’s absence from such
legal practitioner’s usual place of business: Provided that if the legal practitioner
employed is not the nearest available legal practitioner, the travelling expenses and
special allowance so allowed shall not exceed the expenses and allowance which
would have been allowed if the nearest available legal practitioner had been
employed
S43 (3) she can claim taxation on a party to party scale. These can be taxed order
32 rule 2(4)
S43 on issues of costs. Payment of tax by the other paying the costs and the
taxation.
 4) After trial Ben is granted an order in his favour against mark. Before he
executes the judgement a notice of appeal is served to Ben from Mark’s
Lawyers. Ben feels strongly that the appeal has no merit. Advise Ben
The party in whose favor 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&Orsv Minister of Home Affairs 1982
(1) ZLR 223
S40 Where an appeal has been noted the court may direct either that the judgment
shall be carried into execution or that execution thereof shall be suspended pending
the decision upon the appeal or application
(1) The potentiality of irreparable harm or prejudice being sustained by the
respondent if leave to proceed in terms of the order were granted;
(2) The potentiality of irreparable harm or prejudice being sustained by the
applicants if leave were refused;
(3) The prospects of success of appeal, in particular, whether the appeal is
frivolous or vexatious or has been noted mala fide;
(4) If there is potential harm or prejudice to both parties, the balance of
hardship or convenience (South Cape Corporation (Pty.) Ltd v Engineering
Management Services (Pty.) Ltd., 1977 (3) SA 534 (AD) at 545, followed).
The balance must be in the applicants favour for execution to be granted.

5) The messenger of court arrives at Mark’s house and attaches property

which belongs to Mary what remedy does Mary have?
The remedy that Mary will have is that of interpleader this is done when
the property that does not belong to the JDebtor is attached this is in terms
of Order 27 of the MC rules. The claimant must notify the messenger of
court immediately of the claim she has to the property and the Messenger
must notify the execution creditor of the claim. The property remains
attached pending the outcome. If the Execution Creditor admits he will not
be held liable for any costs. If the claim is not admitted to the MC must
draw up interpleader and sue them. In these summons the execution
creditor and the claimant are called upon to appear in court on the date
specified in the summons and have the claim adjudicated.
 6) What are costs de bonis a propii? And in what circumstances can these
costs be awarded?
These are costs of suit which the court directs are to be paid by the unsuccessful
party out of his own pocket where he instituted proceedings or defended the matter
in a representative capacity. This only in special circumstances. In order to justify a
personal order for costs against a litigant occupying a fiduciary capacity his conduct
in connection to the litigation. Punitive in nature.
The court may make an order of CDAP against an attorney but it will only do so if the
attorney has been guilty of unprofessional conduct and not merely because the
attorney has conducted the case ineptly
An order for costs de bonis propriis is intended to indemnify a party against an
account (for costs) from his own representative, whether the representative is an
attorney or not, or, put another way, to compel the representative of a party to pay
the costs himself. It does not result in the condemnation of the opposing party and it
does not influence the extent of the award of costs which has to be obeyed. An
attorney and client costs order, on the other hand, is not intended to compel one of
the litigating parties' attorney (or other representative) to payment (of the costs) and
indeed does have an influence on the extent of the award of costs which the one
party has to pay the other party. The object thereof is then that the party who is
penalised with costs must pay so much that it will settle what the opposing party
owes to his attorney. An order for attorney and client costs cannot be imposed
merely by reason of a decision or desire to indemnify the other side for disbursed
costs. Before such an order can be made, there must be exceptional circumstances
which demands an additional penalisation in regard to costs of the party against
whom the order is made. It is an unusual order and ought not to be reduced to an
everyday order by it being too readily made
A court may also order costs de bonispropiis against a person who acts in a
representative capacity, such as an executor of a deceased estate, or a trustee of an
insolvent estate. Such costs are usually granted if there is a substantial deviation
from the responsibilities of the person’s office—where, for example, the person has
acted mala fide, negligently or unreasonably

7) Define the following terms

i) Wasted costs
Costs are “wasted” when the services for which those costs are charged are of no
use to the parties to the action. Where, for example, a party sets a matter down for
trial, and then postpones the matter, the relevant notice of set-down is a useless
procedure, and the costs related to it are wasted costs. Unnecessarily incurred costs
e.g. bringing a legal practitioner to court and the other party fails to attend leading to
a postponement
ii) Costs of appeal
Issues of security, expenses incurred by notice of appeal in litigation

iii) Costs in the cause

This means that the costs of preliminary or interlocutory proceedings are included in
the total costs of the court case. The party who must pay the costs in respect of the
main case then also carries the costs of the preliminary or interlocutory procedure in
respect of which costs were made costs in the cause. They are paid ultimately to the
successful party at the end of the proceedings. The loser pays the costs

8) What is the role of the magistrate in a trial?

Adjudicate in trial and sits acts as an arbiter, only calls witnesses in maintenance
issues. Can he descend into the arena? Read cases in what circumstances can he
recall witnesses?

9) Discuss the various ways in which judgement sounding in money can be

enforced
This can be enforced by attachment of debts that is garnishee order. In
respect of any judgments of a debt that is due or may become due in the
future. If the JD is being paid monthly wages order 20 and S23 of MCA the
employer will be made directly to the J creditor and should leave enough
money for sustenance
Can also be enforced by attachment of property that is execution against
property of the party should not include bedding, groceries movable
property is attached 1st, and this is extinguished, were JD has raised the
money needed, when the amount has been satisfied.

Can be enforced by Civil Imprisonment as a last option where he wilfully

defaults in payment when he has the means. The cost of the sustenance
should be met by the JD. The effect? Is to coerce him to pay the debt. Not
allowed to send him back after the 3months of civil imprisonment. Can you
 have other recourse? O38 and S 27-32. After a 7 clear days after
Judgement has been given

10)What are the essential differences between an appeal and a review

Based on the record/ extrinsic evidence
On the results/ on the manner used to obtain the results
Any other person can appear in review and appeal only affected person
Review by way of application and an appeal is by way of notice has to set
out the reasons
Appeal on ground of law and a ground of fact
Specific time periods and review its within reasonable time

11)How does the court proceed against a debtor who is capable but is
unwilling to abide by the court order?
The court proceeds by way of civil imprisonment in terms of S27 of the
MCA this procedure is intended to force a JD who has got the means but
not willing to pay. This is not meant to punish but to enforce. If the
judgement has remained unsatisfied for 7 clear days or if the JD has
admitted in open court that he has insufficient funds to meet the [Link] a
nulla bona return of service. Is by way of issuance of summons and call
upon the JD to appear at a specified date. And the Jd is to show cause as
to why the decree should not be made against him

12)What are the essential differences between civil imprisonment and

arrestussuspectustanquam de fuga ?
ASDF is available to a creditor who fears that the debtor is about to leave
the country in order to avoid payment of debts. The arrest prevents the
debtor form leaving the country. This remains only in force until the
Judgement is given. This is an arrest to abide by the judgement of the
court. Evasion of trial
 While civil imprisonment is use to enforce the payment of debt in order to
force him to pay the debt. The debtor has means to pay but refuses to pay
the debt. After judgment

13)Distinguish between attachment in terms of S13 of the MCA and execution

against property
Attachment to found or confirm jurisdiction
A court may order attachment of person or property to found or confirm jurisdiction
against any person who does not reside in Zimbabwe in respect of an action within
its jurisdiction where the claim or the value of the
matter in dispute amounts to such amount as may be prescribed in rules, exclusive
of any costs in respect of the recovery thereof, and may grant an order allowing
service of any process in such action to be effected in such manner as may be
stated in such order

Execution against property is attachment of property in order to satisfy the judgment

debt used to enforce judgements of payment of money or the return of goods
authorises the seizure of the Judgement Debtors property and then sell the property
to settle the debt.
S20 of the MCA When a court gives judgment for the payment of money the amount
shall be recoverable, in case of failure to pay the same forthwith or at the time or
times and in the manner ordered by the court, by execution against the movable
property and, if there is not found sufficient movable property to satisfy the judgment,
then against the immovable property of the party against whom such judgment has
been given.
Looking for jurisdiction basis and trying to enforce judgement, ensure enforcement is
done, security, holding to render judgement.

14)Explain the requirements and circumstances under which a spoliation

order may be granted
The spoliation remedy is a summary remedy issued upon urgent
application aimed at restoring control of property to the applicant to the
applicant form which it was unlawful [Link] interdict.
 a) Proof that the applicant was in peaceful and undisturbed control of the
property
b) Proof that the respondent took or destroyed that the control by means
of unlawful self-help or spoliation.
DAVIS v DAVIS 1990 (2) ZLR 136 (HC)
it is my view that a spoliation order is available at least to any person
who is (a) making physical use of property to the extent that he derives
a benefit from such use; (b) Intends by such use to secure the benefit
to himself; and (c) is deprived of such use and benefit by a third
person."
Manga v Manga
c) No consent passive or express, showing resistance

15)The requirement for the right to cliam an interdict are well known, with the
aid of case law
a) Critically discuss the requirements of an interdict
The necessary requirements for an interim interdict are set out in Hix
Networking Technologies v System Publishers (Pty) Ltd & Anor 1997
(1) SA 391 (A) at 398I-399A as: G
"(a) a prima facie right;
(b) A well-grounded apprehension of irreparable harm if the relief is
not granted;
(c) That the balance of convenience favours the granting of an
interim interdict; (pending final) prospects of success should weigh in
favour of applicant) safeguard rightsdisposition of property
(d) That the applicant has no other satisfactory remedy.
To these must be added the fact that the remedy is a discretionary
remedy and that the court has a wide discretion.
The requirements for a final interdict are a clear right, an injury actually
committed or reasonably apprehended and the absence of similar
protection by any other remedy
Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt)
Ltd & Anor 1980 ZLR 378 (G).
In an application for a temporary interdict pendentelite, the applicant
must show: D (i) a clear right on his part; (ii) actual or reasonably
apprehended injury; and :(iii) no other ordinary remedy by which he can
be protected with the same result. (Setlogelo v Setlogelo, 1914 AD 221

In considering the application the Court will consider the prejudice to

the applicant if the interdict is withheld, against the prejudice to the
respondent if it is granted. This is called the balance of convenience.
(EriksenMotors F (Welkom) Ltd v Protea Motors and Anor, 1973 (3)
SA 685 (AD) followed.) If there is any clear balance of convenience in
the respondent's favour, it should form part of the pleadings.
A clear right that kind of entitltlment not contestable at law either ownership or lawful
possession / potential harm suffered if interdict is not granted/ no other remedy
satisfactory (setlegelo v Setlegelo)
b) Discus the difference between an interim and a final interdict

Request for further particulars: Russell Noach Case

Review is set out in S57 of the MCA and its by way of court application