Lecture 3 on Civil Procedure of the Lower Courts Prepared by S.P.

Mamimine

PRELIMINARY ISSUES BEFORE ACTION PROCEDURE

Letter of Demand

It is not in all instances that a demand is necessary before the issuance of summons. A demand
is necessary:-

1. Where the demand is necessary to complete the cause of action. For example it is a
requirement condition precedent when suing the State to give 60 day notice of intention
to institute proceedings. 1
2. A demand is also necessary if the parties have agreed ex contractu that a
demand is a condition precedent before litigating.
3. The demand must also be made if it necessary to put the defendant in mora, for
example, in contractual agreements where the contract places certain obligations on
one party and certain obligations on the other. 2
4. A demand is also vital for purposes of lessening cost of suit, because if a
defendant responds to the letter of demand and settle that means he would have
saved costs.

The form and content of the demand.

(i) It should be in writing.

(ii) It can be by the creditor himself or by someone representing the creditor i.e. a Legal
Practitioner.
(iii) The demand must give sufficient detail to enable the debtor to know the basis upon
which the creditor is making his or her claim.
(iv) The demand must give reasonable time for the debtor to comply. Reasonable time
depends on the circumstances. Usually 7-15 days is given to pay a debt.
(v) It is not necessary to threaten legal action.
(vi) Use simple clear English. Be polite but firm and assertive.

Alternative dispute resolution (ADR) mechanisms

1 See section 6 of State liabilities Act Chapter 8:14.

2 See Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR 326 (S).

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Solving a legal problem should not always culminate into litigation. There are alternative
dispute resolution (ADR) mechanisms which can be utilized. Types of ADR
1) Informal ADR- outside formal courts
2) Formal ADR- attached to the formal litigation route

Basically there are four types of A.D.R

1) Conciliation
2) Mediation
3) Negotiation
4) Arbitration
The subject of alternative dispute resolution is done under module of Alternative Dispute
Resolution.

Whenever a case can be settled reasonably and amicably, there is every reason to first consider
the Alternative Dispute Resolution mechanisms, you should advise and encourage the client to
do so rather than commence or continue legal proceedings. It is the duty of an Advocate to
encourage a settlement and never to undertake the trial of a case for the money there is to be
made in trying it, unless you look upon the law as a trade rather than a profession.

A law-suit is a very unfortunate thing. Ablest lawyers settle more causes than they try, and
often charge more for settling them than they would for trying them. They look upon the trial
of a case as a surgical operation to be avoided, if possible, but when it becomes inevitable then
they cut deep and with a keen blade. Whenever you enter the court-room for the trial, enter
with that comfort and strength that comes from having made a conscientious effort to avoid
bringing the matter before the Court. But when litigation is unavoidable, then the hour for
temporizing is closed. Then insist upon every substantial point in your client's favour.

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 ACTION PROCEDURE

Summons –Order 8

Summons commences action procedure. See O8R1. The summons is supposed to be in form
CIV4 , see Order 1 Rule 4(1). The summons should call upon the defendant to enter
appearance to defend . see Order 8 Rule 1 (1). The Defendant will have 7 days to enter an
appearnce to defend if he/she reides within the jurisidction of the court and 14 days if residing
outside the jurisidiction of the court. See O8R(1) (2) The summons is issued by the clerk of
court and it is mandatory for the summons to bear the date of issue. O8R (1) (3).The original
summon is retained by the office of the clerk of court.O8R(1) (4). Shall be signed by a Legal
Practitioner or the Plaintiff although in the case of Municipality, company, or other
incoporated bodies an officer of such and in the case of partnership or group of persons
associated for a common purpose through a member nominated by others to sign the
summons. See Order 8 Rule 2(1) as read with Order 4 Rule 1

Contents of the summons.

The summons should include the following:
 The particulars of claim. Order 8 Rule 2(1)
 Address for service which is within 15 kilometre radius of the court house from which
it is to be issued and postal address. See Address for service, postal address and
electronic mail address – Order 8 Rule 2 (2) and (3).
 Dies induciae -Order 8 Rule 1(2) as read with Order 1 Rule 5(2)
 The Plaintiff’s Christian name and surname, occupation and residence or place of
business of the Plaintiff. Order 8 Rule 4 (c).
 The particulars of claim shall show the nature and amount of the claim and the rate of
interest and the amount thereof claimed up to the date of the summons.
 Whether or not costs will be claimed, if the action is undefended and any abandonment
or part of the claim and any set off.
 Where the summons contains more than one claim, the particulars of each claim and
the relief sought in respect of each claim shall be stated separately.
 Where the Plaintiff is suing as a cessionary he/she should state its name, address and
description of the cedent, attach the deed of cession and proof of payment. Order 8 Rule
4(d).
 The summons should describe the defendant, the surname and where known his/her
Christian name or initials and occupation which the defendant is known of to the
Plaintiff, the residential address, place of business or employment – O 8 R4
 Where the defendant is being sued as a representative, the capacity which he/she is
being sued.

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  Where the summons are for a claim based on instrument presentment, the fact and date
of presentment.

• Summons with automatic rent interdict – section 38(1) of the Act and Form Civ 8

ISSUING OF PROCESS
Issuing of Process
• Issued by the clerk of court – Order 8 Rule 1(3)
• Issuing involves:
– Allocation of a case number – Order 3 Rule 1(1)
– Signing
– Stamping with the official stamp

SERVICE OF SUMMONS

• Summons must be served by the Messenger of Court or his/her Deputy, or by a person

temporarily appointed as messenger by the magistrate or by a police officer (in cases where
no messenger of court has been appointed) – sections 10 (3) and (5) of the Act and Order
7 Rule 3(1). Failure to comply with this requirement invalidates the service
– Wattle Company (Pvt) Ltd v Inducom (Pvt) Ltd 1993 (2) ZLR 108
• Process is valid throughout Zimbabwe and can be served by any messenger – section
23 of the Act.
• Service of process which does not require service by the messenger of court can be
done by the parties themselves – Order 7 Rule 3(2)

• Messenger of court may call upon any police officer to assist him or her if he or she
meets with resistance in serving process – Order 2 Rule 2
• Police officer must assist if requested – Commissioner of Police v Rensford and
Another 1984 (1) ZLR 202
• Manner of service
• Delivery at physical address – Order 7 Rule 5(2) and Rules 6 and 7
- Service of process affecting liberty must be personal – Order 7 Rule 5(1)
- Postal service – Order 7 Rule 7A
• Proof of service
Order 2 Rule 3, Order 7 Rule 7C and Form CIV 6A
• Return of service by Messenger or Deputy or police officer is prima facie evidence of
facts stated therein – section 24 of the Act, Gundani v Kanyemba 1988 (1) ZLR 226
(S)
• Service of process in proceedings against the state – Order 7A (Rules 1 – 4) as read
with the Fourth Schedule to the Rules
• Substituted service
Order 7 Rule 8

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Amendment of summons

Summons may be amended by the plaintiff as he thinks fit before service to the other party in
terms of Order 8 Rule 7. This amendment may be before the issuance or after issuance but
before service and must be endorsed by the Clerk of Court in the prescribed manner. Without
that any such amendment is invalid see Order 8 Rule 7(2). If the amendment is required after
summons have been served to the other party such amendment maybe done according to
section 66 of the Magistrates Court Act either on application on notice or at the hearing, subject
to such order as to adjournment and costs as the court thinks fit just, and the court shall take
into consideration whether adequate notice of intention to apply for such amendment has been
served upon the other party affected. As long as the amendment is not prejudicial to the other
party amendments may always be allowed except if they are mala fide, but must be through an
application and costs may be at the discretion of the court.

Lapsing of summons

If the summons in an action is not served within two years of the date of its issue or having
been served, the plaintiff has not within that time taken further steps in the prosecution of the
action, the summons shall lapse. However see the proviso or exception in terms of Order 34
Rule 10.

When summons have been issued, the trajectory of the matter is either it is an opposed matter
or an unopposed matter. It becomes unopposed in the sense that either the defendant ignores
the summons or consent to judgment and the matter ends there or the defendant does not enter
appearance to defend within the dies induciae or the defendant enters appearance to defend but
fails to file his or her plea such that the plaintiff prays for default judgment. A contested matter
is one in which the defendant after being served with summons proceeds to enter appearance
to defend and pleads or file any other pleadings which shows a live contest between the parties.

In order to bring this important lecture which forms the crux of our module into perspective. I
have structured ways in which we are going to explore the procedural elements in four options
summarised hereunder:-

(1) Options available to the defendant after being served with summons.
(2) Options available to plaintiff after the defendant has entered appearance to defend.
(3) Options available to the defendant after entry of appearance to defend.
(4) Options available to the plaintiff after the defendant has filed and served his plea and
or with a counterclaim.

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OPTIONS AVAILABLE TO THE DEFENDANT AFTER BEING SERVED WITH
SUMMONS

 Ignoring the summons and risking default judgment being granted with costs. (The
procedure of default judgment and rescission of default judgment shall dealt with under
this option).
 (Try to make use of ADR3 mechanisms within the dies induciae and see if the plaintiff
can withdraw the summons or reach a deed of settlement.
 Enter appearance to defend.
 Consent to judgment.
 Payment into Court, Offers and tenders.

CONSENT TO JUDGMENT

Consent to Judgment
• Consent is in writing – Order 11 Rule 1(1)
• Defendant may consent to part of the claim – Order 11 Rule 1(1)(b)
• If consents to part of the claim, defendant may enter appearance to defend the balance
– Order 11 Rule 1(4)
• Not necessary to serve summons if defendant consents before instructions to serve –
Order 11 Rule 1(2)
• Defendant not liable for judgment costs if consents within the dies induciae – Order
11 Rule 1(3)
• Original liquid document must be filed by plaintiff before judgment by consent is
entered – Order 11 Rule 4(7)
• Requisites of a liquid document:
• Must sound in money
• Must be signed by the debtor or authorised representative or deemed by law to
be acknowledged
• Amount of the debt must be fixed and definite and appear on the face of the
document – no extrinsic evidence allowed
(See section 11(1)(b)(i) of the Act for examples)
• Clerk of court enters judgment by consent – Order 11 Rule 4(1)(a)
• Clerk of may court refer to court if he/she has doubts on consent – Order 11 Rule
4(8)(b)
(See Washaya v Washaya 1989 (2) ZLR 195 (S) on duty of defendant’s legal
practitioner. N.B. Case from High Court where the equivalent provision is worded
differently)
• In cases of multiple defendants, action may proceed against non-consenting
defendant(s) – Order 11 Rule 4(9)
•

3 Alternative Dispute Resolution mechanisms

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PAYMENT INTO COURT, OFFERS AND TENDER (ORDER 13)

Payment into Court

• Defendant can make a payment into court at any time after service of summons
• Payment into court can be unconditional payment of the full claim – Order 13 Rule 1
or payment of part of the claim as an offer of settlement made without prejudice –
Order 13 Rule 2(1)
• Defendant must notify the plaintiff of the payment into court in writing – Order 13
Rule 3
• Unconditional payment into court results in automatic stay of action except for
recovery of costs not included in the payment – Order 13 Rule 1
• Plaintiff can either accept or reject a payment into court in offer of settlement
• Plaintiff accepts payment into court in offer of settlement by a written request to the
clerk of court for payment to him/her of the amount paid into court – Order 13 Rule
2(2)
• Request must be made within 7 days of receipt of notice of payment – Order 13 Rule
2(2)
• Proceedings are stayed upon acceptance of payment by plaintiff except for recovery
of costs not included in the payment – Order 13 Rule 2(2)
• A plaintiff who accepts payment into court is entitled to recover costs incurred up to the
time of payment into court. The same applies where the there is unconditional payment
into court. Exception: Where payment was in offer of settlement and the defendant
indicated that his offer was inclusive of costs – Order 13 Rule 5

Payment into Court (Tender)

• A defendant who pleads tender must pay into court the amount tendered if such
amount has not yet been paid to the plaintiff – Order 13 Rule 7
• Differences between tender and payment into court in offer of settlement include:
• Tender can be made before institution of proceedings
• Tender must be pleaded
• Tender includes admission of liability

Payment into Court

• Amount paid into court as offer of settlement or tender (and not accepted by the
plaintiff) will only be paid out upon:
• Judgment by the court declaring who is entitled to it – Order 13 Rule 8(a); or
• The written consent of the parties – Order 13 Rule 8(b).
• In claims for damages, the fact that there has been payment into court in offer of
settlement or tender (rejected by plaintiff) should not be disclosed to the court until
the court has pronounced judgment on the claim (issue of liability and the amount
due, if any) – Order 13 Rule 9
• Fact will be disclosed before an order of costs is made
• In all cases, plaintiff shall be penalised in costs if he/she fails to recover more than the
amount that was offered in settlement or tendered – Order 13 Rule 6
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 • Unclaimed money paid into court will be returned to the defendant after one (1) year
unless the matter has been set down for trial – Order 13 Rule 10(1)
• Will be paid into the Guardian’s Fund if defendant cannot be found – Order 13 Rule
10(2)

APPEARANCE TO DEFEND

See Order 10 of the rules. A defendant intending to defend shall within seven days after
service of the summons if he or she resides within the jurisdiction of the court from which
the summons was issued or 14 days if he or she does not reside within the jurisdiction of the
court enter an appearance to defend by delivery of a memorandum in writing that he or she
intends to defend. N.B Late appearance to defend is effective of no application for default
judgment has been made by the plaintiff.

DEFAULT JUDGMENT

Default of Appearance or Plea

 In the Magistrate Court there is no automatic bar. if a party fails to furnish or issue or
deliver a particular process eg fails to enter appearance to defend within 7 days from
date of service of summons, fails to enter their plea within 7 days as prescribed in O 16
R1 (i) there are not automatically prohibited from filing such process unless an
application for default judgment has been made.

• Plaintiff may apply for default judgment in default of appearance to defend or of plea

• Where a defendant has failed to enter appearance to defend and has not
consented to judgment, the plaintiff may lodge with the clerk of the court a
written request to have judgment entered with costs against such a defendant
for any sum not exceeding the amount claimed in the summons or other relief
so claimed; together with interest from date of summons to the date of
judgment at the rate specified in the summons and if no rate specified at the
rate for the time being prescribed in terms of the Prescribed Rate of Interest
Act [Chapter 8:10]– See Order 11 Rule 2
• Where there is default of plea, plaintiff must first deliver a written notice calling
upon the defendant to file his or her plea within five days of the receipt of such
notice plead and on failure of the defendant to do so within that period or further
time that may be agreed by the parties whereupon the plaintiff may lodge with
the clerk of court a written request to have judgment entered with costs and
interest. See Order 11 Rule 3.

• The procedure for requesting default judgment involves the following:

• Written request for default judgment – Form CIV 9

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 • Original liquid document required – Order 11 Rule 4(7)

• Claims for damages require evidence. Plaintiff may file affidavit and

Supporting documents – Order 11 Rule 4(5)

In cases of defective appearance to defend, the clerk of court will require the plaintiff to
give the defendant written notice to rectify the defect within 48hrs – Order 11 Rule 4(2) and
(3)

• No judgment in default of appearance in cases where summons was served by

registered post unless there is proof of delivery – Order 11 Rule 4(4)

• Default judgment entered by clerk of court (Order 11 Rule 4(1)(b) or matter referred
to the court

• Referred to court in the following circumstances:

• Where claim is for damages – Order 11 Rule 4(5)

• Where claim is based on a hire-purchase agreement – Order 11 Rule 4(6)

• Where clerk of court uses his/her discretion to refer – Order 11 Rule 4(8)(a)

• In cases of multiple defendants, action may proceed against non-defaulting

defendant(s) – Order 11 Rule 4(9)

APPLICATION FOR RESCISSION OF DEFAULT JUDGMENT

Rescission of Default Judgment
• Circumstances in which default judgment may be granted:
– In default of appearance to defend – Order 11 Rule 4
– In default of plea – Order 11 Rule 4
– Upon default at pre-trial conference – Order 19 Rule 1(11)
– Upon default at trial
– Upon failure to comply with a procedural order of the court e.g. Order
compelling delivery of further particulars – Order 33 Rule 1(3)(a)
– Upon failure to respond to an application
• Rescission will not be granted if Applicant was in wilful default – Order 30 Rule 2(1)
• Meaning of ‘wilful default:
– Whether Applicant chose default whilst aware of what he/she was required to
do and the risk of default – Neuman (Pvt) Ltd v Marks 1960 R & N 166;1960
(2) SA 170 (R)

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 • Applicant will not be excused if default was a result of the negligence of his/her legal
practitioner but the legal practitioner may be penalised in costs and the matter may be
referred to the Law Society of Zimbabwe for disciplinary proceedings against the legal
practitioner .
– Ndebele v Ncube 1992 (1) ZLR 288 (SC)
– Masama v Borehole Drilling (Pvt) Ltd 1993 (1) ZLR 116 (S)

Is default judgment appealable?

The case of Sibanda & Ors v Nkayi Rural District Council4 , is an authority for the
proposition that a default judgment cannot be appealed against albeit subject to exception.
Rather the proper procedure is for the aggrieved party to seek rescission of the judgment. In
Guoxing Gong –v- Mayor Logistics (Pvt) Ltd5 it was submitted that,

“It is trite that save in special circumstances …, no appeal lies to this court against a
default judgment which is normally reversed by rescission of judgment or a declaration
of nullity. It therefore, follows that in the absence of special circumstances, no valid
ground of appeal can be laid at the door of this court concerning the propriety or
otherwise of a default judgment. Whether or not there was non-joinder or any other
irregularity pertaining to the default judgment that is a complaint to be laid at the court
a quo’s door and not this court. There being no special circumstances pleaded in this
case, this court will not entertain any argument calculated to impugn the validity of the
default judgment at hand.”

A special circumstance where a default judgment can be appealed against is where a court acts
outside its jurisdiction and grants an order outside its powers, in this case, the default judgment
is appealable or reviewable.6 If an application for rescission of default judgment has been
dismissed on the basis that it was not made within one month of knowledge of judgment. One
need not to appeal against that judgment but to file a condonation for late filing of rescission
of default judgment.7 Where fresh evidence emerges after granting of default judgment, the
correct procedure is to apply for rescission of the default judgment before seeking to introduce
the new evidence.8

Condonation application Order 34 rule 2 of the Magistrate Court Civil Rules

4
1991 (1) ZLR 32.
5
SC 2/17, See also the case of Zvinavashe –v- Ndhlovu SC 40/06.
6
See Folly Cornishe (pvt) ltd and anor –v- Shingirai Tapomwa & ors SC 26/14.
7
see Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S).
8
City of Mutare v Mawoyo 1995 (1) ZLR 258 (HC).

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Order 34 rule 2 of the Magistrate Court Civil Rules provides that any time prescribed in the
rules other than the period within which an appeal must be noted, may be extended by any
party with the written consent of the opposite party or by the court on application and on such
terms as to costs and otherwise as it thinks just.

So if a party fails to make an application say for rescission later than one month after he has
had knowledge of the judgment, a party can seek condonation for the late filing of the
application. A litigant should give an acceptable explanation, not only for the delay in making
the application for rescission but also for the delay in seeking condonation – there are thus two
hurdles to overcome. If a litigant proceeds to file rescission without seeking condonation when
it is clear that the one month period has expired, the other party may raise a point in limine that
the application for rescission has been made out of time and therefore the party applying must
first obtain condonation. Without such condonation the application for rescission is fatally
flawed and should be dismissed.9

It is trite that the factors which court takes into account in such applications are10:
(a) the degree of non-compliance with the Rules;
(b) the explanation therefor
(c) prospects of success on the merits
(d) the importance of the case
(e) the convenience of the court, and
(f) the avoidance of unnecessary delay in the administration of justice –

The words of Nestadt JA in Tshivhase Royal Council & Anor v Tshivhase & Anor;
Tshivhase & Anor v Tshivhase & Anor11 are pertinent. At p 859E-F, the learned Judge of
Appeal said:

“This court has often said that in cases of flagrant breaches of the Rules, especially
where there is no acceptable explanation therefor, the indulgence of condonation may
be refused whatever the merits of the appeal are; this applies even where the blame
lies solely with the attorney (see e.g. P E Bosman Transport Works Committee & Ors
v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) D at 799D-H).''

9See the case of Theunissen v Payne 1940 TPD 680 at 685,Tatenda Mukudu –v- Andrew Malete HB 22/14,
Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1988 (2) ZLR 249 (S), Murwara v Valeta 1996(1)
ZLR 67 (S), Forestry Commission Co v Moyo 1997(1) ZLR 254(S) at 260, Talbert v Jeoman Products P/L SC
111-99, Sibanda v Ntini 2002 (1) ZLR 264 (S);) and Highline Motor Spares (1933) (Pvt) Ltd & Ors v Zimbabwe
Corporation Ltd 2002 (1) ZLR 514 (S).

10 See Bishi v Secretary for Education 1989 (2) ZLR 240 (H) at 243B-C; V Saitis & Co (Pvt) Ltd v Fenlake (Pvt)
Ltd 2002 (1) ZLR 378 (H) and Challenge Auto (Pvt) Ltd & Ors v Standard Chartered Bank Zimbabwe Ltd 2003
(1) ZLR 17 (H) at 19.
11 1992 (4) SA 852 (A).

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OPTIONS AVAILABLE TO PLAINTIFF AFTER THE DEFENDANT HAS ENTERED
APPEARANCE TO DEFEND

 Apply for summary judgment on seven (7) days’ notice delivered at any time before
the holding of a pre-trial conference.
 File and serve Notice to plead if defendant fails to plead with seven days of entering
appearance to defend, or if summary judgment application has been dismissed and the
defendant has been granted leave to defend, or if exception to summons or motion to
strike out applications have dealt with in terms of the rules or after delivery of further
particulars if there have been requested by the defendant.

 Apply for default judgment after expiry of the five day period or expiry of the date
agreed between the parties in terms of Order 11 (3).

Summary Judgment

This is a procedure which allows the plaintiff who feels that the defendant has no bona fide
defence and has entered appearance to defend to delay proceedings to apply to court for
judgment at any time before a pre-trial conference is held for what is claimed in the summons
and costs. The remedy of summary judgment is a drastic one as it in fact negates a fundamental
principle in the administration of justice, audi alteram partem. 12 It is a remedy intended to be
applied to cases of bogus defences and defences that are bad in law.

• Purpose is to enable a plaintiff with a clear and unanswerable claim to obtain

judgment without the expense of a trial – Beresford Land Plan v Urquhart 1975(1)
RLR 260 or 1975 (3) SA 619.

In Jena v Nechipote13 at p 30 D-E it was held that-

"All the defendant has to establish in order to succeed in having an application for
Summary judgment dismissed is that 'there is a mere possibility of success', he has a
plausible case'.
There is a real possibility that an injustice may be done if summary judgment is
granted".

12
Shingadia v Shingadia 1966 RLR 285, Eisenberg's v O.F.S. Textile Distribution (Pty) Ltd 1949 (3) SA 1047.
13
1986 (1) ZLR 29, See also Rex v Rhodesia InvestmentsTrust (Pvt) Ltd 1957 R & N, 723 1957 (4) SA 631 (SR)
where at p 633 G MURRAY CJ put the defendants' summons at no more than-

"-----that the defendant must allege facts which if he can succeed in proving them at the trial, would entitle him
to succeed in his defence at the trial".

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It is well established that it is only when all the proposed defences to the plaintiff’s claim are
clearly inarguable both in fact and in law that this drastic relief will be afforded to the plaintiff.14
Good prima facie defence means that the defendant must allege facts which if he can succeed
in establishing them at the trial would entitle him to succeed in his defence.15

• Available for any one or combination of the following claims:

• Claim based on a liquid document
• Claim for a liquidated amount
• Claim for specified movable property
• Claim for ejectment

• Procedure for applying for summary judgment involves

– Written application on seven (7) days’ notice delivered at any time before the
holding of a pre-trial conference – Order 15 Rule 1(2)
– Order 15 Rule 1(2)(a). If the claim is illiquid, a copy of an affidavit is required
made by the applicant or by any other person who can swear positively to the facts
verifying the cause of action and the amount claimed, if any and stating that in his
or her belief there is not a bonafide defence to the action and that appearance has
been entered solely for the purpose of delay.
– Copy of liquid document required if claim is based on a liquid document
supported by an affidavit – Order 15 Rule 1(2)(b).

• Options available to defendant upon application for summary judgment:

– Pay into court – Order 15 Rule 2(1)(a)
– Give security – Order 15 Rule 2(1)(b)
– Satisfy the court by affidavit that he/she has a good prima facie defence
• Meaning of good prima facie defence:
– Triable issue of fact – must allege facts which would constitute a valid defence to
the claim if he succeeded in proving them at trial – Rex v Rhodian Investments
Trust (Pvt) Ltd 1957 (4) SA 632 (SR)
– Triable (arguable) issue of law – Shingadia v Shingadia 1966 RLR 285
• Application of good prima facie defence requirement:
– Jena v Nechipote 1986 (1) ZLR 29
– Dickson v Addison S160/87
• Summary judgment will be entered (in default) if the defendant does not respond to
the application for summary judgment – Order 15 Rule 3(1)
• No evidence may be adduced by the plaintiff at the hearing of the application for
summary judgment. The plaintiff’s case will rest on the affidavit filed in support of

14
Chrismar Pvt Ltd v Stutchbury & Anor 1973 (1) RLR 277, See also G D Haulage (Pvt) Ltd v Mumurgwi Bus
Svs (Pvt) Ltd 1979 RLR 447, A question of law can be a good prima facie defence See Shingadia v Shingadia
(supra).
15
Rex v Rhodian Investment Trust (Pvt) 1957 R & N 723 1957 (4) SA 631.

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 the application for summary judgment or the liquid document sued upon – Order 15
Rule 2(2)(a)
• The plaintiff may cross-examine the defendant’s witness(es) if the defendant gives
oral evidence – Order 15 Rule 2(2)(b)
• Court will give leave to defend if defendant pays into court or gives security or
satisfies the court that he/she has a good prima facie defence to the claim – Order 15
Rule 3(2)
• Leave to defend part of the claim may be granted where the defendant satisfies the
court that he/she is entitled to defend part only – Order 15 Rule 5(b)
• In cases of multiple defendants, leave to defend may be granted to one and not the
other(s) – Order 15 Rule 5(a)

OPTIONS AVAILABLE TO THE DEFENDANT AFTER ENTRY OF APPEARANCE

TO DEFEND

 Plead to the summons (file Plea) (Plea on the merits or special plea) or make a
counterclaim.
 Except to the summons.
 Apply for motion to strike out.
 Request for further particulars.
Request for further particulars
A defendant whether in the main claim or counterclaim may at any time after service of
summons or counterclaim and before delivery of plea, apply to the plaintiff or plaintiff in
reconvention requesting further particulars which would enable him or her to plead within
seven days after receipt of such notice.

The information sought must be such that it enables the Defendant to plead. It must not be for
purpose of embarrassing the Plaintiff or to buy time. Information must be reasonably necessary
to enable the party to plead and if such particulars are sought they must be supplied unless they
are reasons for the party’s inability to provide them.

After entry of appearance to defend, a party may request for further particulars.
The further particulars is basically an avenue that enables a litigant to obtain certain
information.

Circumstances in which request for further particulars can be made

1) After issuance of summons or declaration which cause of action is not sufficient or

clear for the defendant to plead.

2) When Plaintiff does not clearly understand defendant’s in reconvention nature of

counterclaim, the plaintiff can request for further particulars.

3) Request for further particulars for the preparation of the trial.

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What is the degree of particularity?

Particulars are intended to define the issues and prevent a party from being taken by surprise
at the trial. Only those particulars which are strictly necessary will be supplied and not where
disclosure of evidence is sought, or where the request is fishing expedition or to gain time or
to assemble material for cross-examination or where particulars relate to a statement of law.
The particulars to which a litigant is entitled are particulars of matters in respect of which the
onus is on the opponent. However, there is no hard and fast rule to be laid down regarding the
particularity required, each case must be judged on its own merits.16

A defendant is not entitled to request further particulars for the purpose of enabling him to
ascertain whether he has a defence or to formulate such a defence. Applications for particulars
should not amount to a series of interrogatories to the other party.17 When asking for further
particulars, the applicant is required to show that without such requested particulars he will be
embarrassed in attempting to plead and that he must make plain to the court the precise
embarrassment which he alleges he will suffer.18 Lastly and more importantly, a request for
further particulars cannot be made after the Plaintiff has filed a notice plead.19

• What happens if request for further particulars is not complied with?

– Total non-compliance – application for an order compelling delivery of further
particulars (Order 33 Rule 1(2)
– Inadequate particulars – request for further and better particulars
• Consequence of failure to comply with an order compelling delivery of further
particulars:
– Dismissal of plaintiff’s claim
– Default judgment against defendant
(Order 33 Rule 1(3)(a))

Plea

Plea – Time for delivery

• Defendant must deliver plea within 7 days after:
(a) entry of appearance; or

16
Zimbabwe Online (Pvt) Ltd v Telecontract (Pvt) Ltd HH-206-12, See Also Citizen Pvt Ltd v Art Printing Work
1957 (3) SA 383, Time Security Pvt Ltd v Castle Hotel Pvt Ltd 1972 (3) SA 112.
17
Trinity Engineering (Pvt) Ltd v CBZ 1999 (2) ZLR 417.
18
Carlo Franchi vs Dixon A. Mohammed HB-17-05.
19
See Russell Noach (Pvt) Ltd v Midsec North (Pvt) Ltd 1999 (2) ZLR 8 (HC), See also Wadzanai Memory
Azangwe (nee Chikomo) –v- Godfrey Azangwe HB 53/17.

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 (b) delivery of documents or particulars in terms of rule 1 or 2 of Order 12; or
(c) if application for summary judgment is made, the dismissal of such
application; or
(d) the making of an order giving leave to defend; or
(e) if exception or motion to strike out is set down for hearing in terms of rule
7 of Order 14, the dismissal of such exception or motion; or

(f) any amendment of the summons allowed by the court at the hearing of such
exception or motion;

(Order 16 Rule 1(1))

Plea – Form and Content

• Must be dated and signed by the defendant or his legal representative – Order 16 Rule
1(2)
• Must not be a bare denial – Order 16 Rule 4
• Plea of tender must comply with Order 16 Rule 5
• Plea must admit or deny or confess and avoid all the material facts alleged in the
summons – Order 16 Rule 2(a)
• Examples of confession and avoidance:
• Plea of tender
• Set – off
• Nature of defence and material facts on which it is based must be stated – Order 16
Rule 2(b)
• Presumptions in relation to admission and denial of facts – Order 16 Rule 7.

Effect of admission in a Plea

The effect of an admission is that the defendant is bound by his admission to the extent of the
necessary implication of the admission and it can only be withdrawn with the leave of the
court.20

Amendment of plea of admission

An amendment which involves the withdrawal of an admission will not be granted by the
court simply for the asking, for it is an indulgence and not a right.21 Before the court will
exercise its discretion in favour of the desired amendment it will require: -

(a) A reasonable explanation, of the circumstances under which the pleader came to make
the admission.

20 See Section 36 of The Civil Evidence Act [Cap. 8.01] and the case of Mashangwa & Anor –v- Makandiwa
& Anor HH 40/19, Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd 2012 (2) ZLR 132 (S) at p
133D-F, DD Transport (Pvt) Ltd v Abbort 1988 (2) ZLR 92 (SC); Moresby – White v Moresby 1972 (3) SA 222
(RA).
21 See Zarug v Paravathie NO 1962 (3) SA 872 (D) at 876C.

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 (b) And the reasons why it seeks to resile from it.
(c) If persuaded that to allow the admission to be withdrawn will cause prejudice or
injustice to the other party to the extent that a special order for costs will not
compensate him, it will refuse the application.

The invariable consequence of an admission is that, the aspect that has been admitted is
removed from the issues that are going to be referred to the trial and a litigant therefore would
not need to lead evidence on an aspect that has been admitted.22

At the stage of drafting the plea, there is need to take care of the safeguards. It will not be a
convincing ground to say the defendant made a mistake and forgot to deal with a certain aspect.
The magistrate may cause the defendant to be bound by the admission. Also, when drafting a
plea, the golden rule is that the opposite party that is the plaintiff must be appraised of the case
which is being raised against him or her and denials must be accordingly be pleaded with such
certainty that he may definitely know what facts are being put in issue. The plaintiff must be
left with no doubt of the nature of the defence or the issues that are being admitted and issues
that are being put. Where the defendant is raising several grounds of defence which defences
are based on separate facts then each defence must be separately stated and this ordinarily
happens in circumstances where the defendant has more than one defence to the plaintiffs claim
as put in the declaration or summons.

N.B Swift –v- West &Another23 it was clearly stated therein that: -

“A plea is a defence and as such can be likened to a shield. It is not a weapon or a

sword. No relief can attach to a party through a plea.”
A party has to claim a relief in a plea through a counter claim which also the counterclaim
must be in consonant with the rules.

Special Plea

• Special Plea

– Definition: Plea that does not raise a defence on the merits but sets out some special or
technical defence

– Purpose: To delay proceedings (dilatory/plea in abatement) OR To put an end to (quash)

proceedings (declinatory/ plea in bar)

• Essential difference between special and exception:

22 See Musadzikwa v Min of Home Affairs & Anor 2000 (1) ZLR 405 (HC).
23 HH 221/17.

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– Defence raised by special plea may be established by evidence outside the summons; On
exception the defence raised must appear ex facie the summons i.e. no extrinsic evidence
allowed

• Examples of special pleas

– Declinatory

• Lack of jurisdiction

 Res judicata (Mvaami (Pvt) Ltd v Standard Finance Ltd 1976 (2) RLR 257; Flood v
Taylor 1978 RLR 230; Owen-Smith v Owen-Smith 1981 ZLR 514; Kawondera v
Mandebvu S-12-2006

 Prescription (Prescription Act, Chapter 8:11)

 Examples of special pleas

– Dilatory
• Lis alibi pendens
• Lack of locus standi in judicio i.e. legal capacity to institute
proceedings (Edward v Woodnnutt NO 1968 (4) SA 184 (R)
• Procedure
– Must be delivered within same time frame as ordinary plea
– Set down for hearing - Order 16 Rule 9

CLAIM IN RECONVENTION (COUNTERCLAIM)

Claim in Reconvention
Definition: Defendant’s claim against the plaintiff
• Rules on claim in convention apply mutatis mutandis except:
– Not necessary for plaintiff to enter appearance – delivers plea if intends to
defend the claim in reconvention
– Times that run from appearance run from date of delivery of claim
(Order 9 Rule 1)
• Defendant may make any claim in reconvention whether:
(a) liquid or illiquid; or
(b) liquidated or unliquidated; or
(c) it arises out of or is connected with the subject-matter of the claim in
convention or not;
• Claim in reconvention must be delivered within 7 days after appearance and provide
the same particulars as summons – Order 9 Rule 2
• Claim in reconvention shall not prejudice the plaintiff’s right to apply for summary
judgment – Order 9 Rule 4
• Claim in reconvention within the jurisdiction will be treated as a cross-action and the
court will pronounce judgment on both in the same action – Order 9 Rule 3(1)
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 • Claim in reconvention and claim in convention may be tried separately but judgment
must be given pari passu

Claim in Reconvention in Excess of Jurisdiction

• Procedure to be followed:
• Defendant applies for claim to be pronounced in excess of jurisdiction and for
stay of action – Order 9 Rule 3(2) as read with section 15(1) of the Act
• Court orders stay of the action if satisfied that the claim exceeds its
jurisdiction – Order 9 Rule 3(3) as read with section 15(1) of the Act
• If no application for stay is made, or application is dismissed and there is no
abandonment, claim in excess of jurisdiction is dismissed – Order 9 Rule 3(4)
• Upon stay, defendant must institute proceedings in court of competent jurisdiction
within the period stipulated by the court – section 15(1) of the Act
• Plaintiff will transfer his/her claim to the competent court as a counterclaim – section
15(1) of the Act
• Magistrates Court may grant an extension of the period of stay of action – section
15(2) of the Act
• Magistrates Court will dismiss the counterclaim (claim in reconvention) and proceed
to determine the claim in convention if defendant fails to institute proceedings in the
competent court or the proceedings in the competent court are discontinued – section
15(3) of the Act

Motion to strike out

A motion to strike out is a procedural request made to the court, asking it to remove certain
parts of the opposing party's pleadings (such as claims, defenses, or specific allegations) on the
grounds that they are legally deficient, irrelevant, or otherwise improper. This motion can be
used in various legal contexts, including civil litigation, to streamline the issues before the court
and ensure that only valid and pertinent matters are considered.

Defendant may apply to strike out a portion of the summons, specifically:

(a) any of two or more claims in a summons which, not being in the alternative, are
mutually inconsistent or are based on inconsistent averments of fact;
(b) any argumentative, irrelevant, superfluous or contradictory matter contained in the
summons.

(Order 14 Rule 6(1); Green v Lutz 1966 RLR 633)

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OPTIONS AVAILABLE TO THE PLAINTIFF AFTER THE DEFENDANT HAS
FILED AND SERVED HIS PLEA AND OR WITH A COUNTERCLAIM

 File replication
 Except to the plea
 Motion to strike out plea
 Request for further particulars (in relation to defendant’s counterclaim)
 Apply for summary judgment.(if the defendant has no bonafide defence if you had not
yet applied for such immediately when the defendant entered appearance to defend)
N.B. Claim in reconvention does not prejudice the plaintiff’s right to apply for summary
judgment – Order 9 Rule 4.
 File plea in response to defendant’s claim in reconvention (if there is a counterclaim by
the defendant)
Except to the plea
A plaintiff may within seven days of the delivery of the defendant’s plea deliver particulars of
an exception to the plea, or motion to strike out in terms of Order 16 rule 9.

A plaintiff may except to the plea on one or more of the following grounds only

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

(b) That it is vague and embarrassing

(c) That it does not comply with the requirements of Order 16

A plaintiff raising an exception that a plea does not comply with the requirements of this order
shall set out the particulars of the alleged non-compliance.

Before filing a formal exception to a plea, a party must first deliver a letter in accordance with
rule 4 Order 14 to give opportunity to the defendant to remove the cause of compliant first.

Either party may on seven days’ notice, set down such exception for hearing before the trial

Motion to strike out plea

• Plaintiff may apply to strike out a portion of the defendant’s plea, specifically:

(a) any of two or more defences which, not being pleaded in the alternative,
are mutually inconsistent;

(b) any argumentative, irrelevant, superfluous or contradictory matter which

may be stated in a plea.

• Procedure on exception to summons applies mutatis mutandis to application to strike

out from the summons – Order 14 Rule 6(2)

Replication

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 • Definition: Plaintiff’s response to the allegations of fact contained in the defendant’s
plea.
• Not necessary unless the defendant raises new facts in his/her plea
Reply (Procedure)
• Must be delivered within 7 days after delivery of the plea or further particulars to the
plea – Order 17 Rule 1
• Presumption of denial of facts alleged in the plea if plaintiff does not deliver reply
timeously – Order 17 Rule 3
• Rules on plea apply mutatis mutandis to reply – Order 17 Rule 2

CLOSE OF PLEADINGS
Close of Pleadings
• Pleadings closed upon delivery of reply or 7 days after delivery of plea if no reply –
Order 17 Rule 4

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