32. 185. (b) the date on which the amendment is made. Stopping of sale to facilitate settlement of claims, Delivery to sheriff of documents relating to title, . (4) Order 32 shall apply to the form and service of an application in terms of this rule and to any opposition thereto. (1) Any ground of defence which has arisen after the issue of summons, but before the defendant has delivered his plea, may be raised by the defendant in his plea, either alone or together with other grounds of defence. Provisions consequential on making of order under rule 87, . Effect of failure to reply or refusal to admit facts. 18 specifying separately –. Further particulars after close of pleadings, 148. A defendant against whom provisional sentence has been granted may –, (a) within one month after the attachment made under a writ of execution issued by virtue of such sentence; or. The court may give final judgment against a defendant if –, (a) he appears in court and there acknowledges the claim set forth in the summons; or. (1) Every written application, notice of opposition and supporting and answering affidavit shall –, (b) be divided into paragraphs numbered consecutively, each paragraph containing, wherever possible, a separate allegation; and. (c) specify the manner in which the provisional order is to be published and, where appropriate, the persons on whom copies of the provisional order, together with all supporting documents, are to be served. Proceedings by or against persons under their trade name, 8D. Further application for directions and costs. (8) Any person who is aggrieved by the sheriff’s decision in terms of subrule (7) may, within one month after he was notified of it, apply to the court by way of a court application to have the decision set aside. (1) Subject to section 21 of the Act and subrule (2), the sheriff or his deputy may by virtue of a writ of execution seize all kinds of movable property, including money and bank-notes. In any case under the last two preceding rules, the court shall have power to order the witness to pay any costs occasioned by his refusal or objection. (b) the appointment or substitution of a provisional trustee in insolvency or of a provisional liquidator of a company or of a trustee of other trust funds. (1) The sheriff shall notify the registrar of the appointment and removal of every deputy sheriff and the registrar shall register such appointments and removals in a book kept for the purpose. Service of order or notice for discovery etc. (a) be legibly written on A4 size paper on one side only; and, (b) state the title of the action, the case number, if any, and the description of the pleading; and, (c) contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved; and, (d) be divided into paragraphs numbered consecutively, each paragraph containing wherever possible a separate allegation; and, (e) have each page, including every document annexed to it, numbered consecutively; and, (f) be signed by the party concerned or by his legal practitioner; and. (3) Where the court is of opinion that the defendant has no good grounds for alleging that the action was frivolous or vexatious, it may order that the defendant pay the plaintiff’s costs as between attorney and client. Such undertaking shall be incorporated in the notice of withdrawal. Procedure where sheriff unable to make demand etc. . Application for condonation of failure to apply timeously, 267. Contents of notice and supporting affidavit, 380. (5e) If, on the hearing of an application in terms of subrule (5a), the judge is satisfied –, (a) that the dwelling concerned is occupied by the execution debtor or his family and it is likely that he or they will suffer great hardship if the dwelling is sold or they are evicted from it, as the case may be; and, (i) the execution debtor has made a reasonable offer to settle the judgment debt; or, (ii) the occupants of the dwelling concerned require a reasonable period in which to find other accommodation; or. Two or more orders: imprisonment to be cumulative in effect, 374. It shall not be necessary to obtain an order of court declaring a judgment debtor’s immovable property executable or to sue out a separate writ of execution in order to attach and take in execution the immovable property of any judgment debtor, but where so desired the judgment creditor may sue out one writ of execution for the attachment of both movable and immovable property: Provided that the sheriff or his deputy shall not proceed to attach in execution the immovable property of the judgment debtor unless and until he has by due inquiry and diligent search satisfied himself that there is no or insufficient movable property belonging to the judgment debtor to satisfy the amount due under the writ. Summons claiming provisional sentence, 21. (4) An offer made in terms of this rule, and any indemnity given in terms of subrule (2), shall –, (a) be signed by the person making or giving it or by his legal practitioner; and, (b) set out all the terms and conditions under which it is made or given; and, (c) be served on the person to whom it is made or given; and. A judge before whom any matter is being heard may, with the approval of the Chief Justice or the judge President, order that such matter be referred for hearing or decision by two or more judges. (3) If upon such return day it is proved by affidavit or otherwise that the defendant has failed to comply with the order for restitution of conjugal rights, the court may grant a decree of divorce or make such other order as it may seem fit. A defendant who has failed to enter appearance shall be deemed to be barred. (c) the Ministry, department, force or institution in which he is employed, as appropriate. (1) A writ for the personal attachment of a judgment debtor may be executed at any hour on any day at any place: (a) a member of Parliament or an officer of Parliament as defined in section 2 of the Privileges, Immunities and Powers of Parliament Act [Chapter 10] while such member or officer is in actual attendance on Parliament or any committee thereof; (b) a person entitled to immunity from personal attachment under the Privileges, Immunities and Powers of Parliament Act [Chapter 10] or, [R 374(1) subs by SI 25 of 9; am by SI 251 of 3.]. If in such reply plaintiff’s legal practitioner cites new cases, the court may allow one legal practitioner for the opposite side to observe on those cases. The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. (4) When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively, but shall answer the point of substance. (2) If such taxed costs are not paid within 12 days of demand the defendant may make a chamber application for judgment for his taxed costs. (1) The court may grant the release of a judgment debtor for good cause shown by him in a chamber application. (ii) there is an undertaking from the Secretary that the claim will be settled within three months from the National Housing Fund established by section 14 of the Housing and Building Act [Chapter 22:07]. If a party, having been served with a notice under rule or having been ordered to produce any documents in terms of rule , fails to produce any document as required in terms of the two said rules, the court may dismiss the claim or strike out the defence and may give judgment in default against that party: [R am by SI 25 of 3; proviso ins by SI 101 of 4. Every action shall be commenced by a summons addressed to the defendant and signed by the registrar who issues it. The Attorney General may, within three days of the date of the said service, file with the registrar submissions on both applications. Issue and form of subpoena: number of names which may be included, 429. (2) At a pre-trial conference the parties shall attempt to reach agreement on possible ways of expediting or curtailing the duration of the trial and on the following matters –. Our resources are limited and sometimes it may take longer to publish documents online. The register of judgments ordered to be registered under the Act shall be kept at the office of the registrar of the High Court in Harare. 4. (6) The court hearing an application for the grant of leave under subrule (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried or determined. (1) The party instructing the sheriff to sell immovable property in execution shall provide the sheriff with such deposit on account of costs as the sheriff may require and shall comply with such further requests as the sheriff may make. The defendant shall file his plea, exception or special plea within 10 days of the service of the plaintiff’s declaration: Provided that where the plaintiff has served his declaration with the summons as provided for in rule there shall be added to the period of 10 days above referred to the time allowed a defendant to enter appearance as calculated in terms of rule 17. Court may grant order for examination of witness or for issue of request for commission: forms, . (2) One legal practitioner only on behalf of the plaintiff shall be entitled to open the case. 42. (1) Where numerous persons have the same interest in any proceedings, the proceedings may be begun, and, unless the court orders otherwise, continued, by or against any one or more of them as representing all or as representing all except one or more of them. This Order shall not be construed as affecting –, (a) the entitlement of an associate to institute proceedings on behalf of his association or fellow associates; or. (f) any payments made by the client or respondent, and whether such payments have been appropriated to capital or interest. Taxed costs and expenses of execution a first charge, . [R 348(2) subs by SI of 7; am by SI 80 of 0.]. (5) Except where notice of taxation is unnecessary under this Order, the taxing officer shall not proceed to the taxation of any bill unless he is satisfied that the party liable to pay the same has been given due notice as to the time and place of such taxation and notice that he is entitled to be present thereat. Writ of arrest: conditions precedent to issue, 279. 25 and these documents shall be filed before trial. Subject to rule 86 two or more persons may be joined together in one action as plaintiffs or defendants whether in convention or in reconvention where –, (a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and. Plaintiff’s replication: confession and avoidance, 127. (See Form No. Limitation of time for application for condonation, 268. A summons for provisional sentence shall be in one of the Forms No. (2) A person who tenders performance of an act in terms of subrule (1) shall execute and deliver to the registrar an irrevocable power of attorney authorizing its performance by the person who claims performance, unless the act is such that it can be performed only by the person making the tender. Thereafter legal practitioner for the defendant shall have a similar right, and finally legal practitioner for the plaintiff shall be entitled to reply to any matters raised by legal practitioner for the defendant. (5) Where the registrar has given notice in terms of subrule (4) to parties who have not yet held a pre-trial conference, it shall not be necessary for them to hold such a conference in terms of subrule (1). Subject to the provisions of rule 263, in a criminal trial in which leave to appeal is necessary, application for leave to appeal shall be made orally immediately after sentence has been passed. (8) For the purpose of calculating any time limit under this Order –, (a) any period during which the sheriff is required by subrule (2), (3) or (5b) to take no steps in regard to the sale of any dwelling; and. Depositions taken before officer of court. 156. The taxing officer shall, unless the court when awarding costs orders otherwise, allow as party and party costs –. (2) Such an application must be supported by an affidavit stating shortly the grounds of the action or defence and that the applicant has insufficient means with which to prosecute or defend the action, as the case may be, and insufficient means to support himself or herself pendente lite, and whatever information is available respecting the spouse’s financial position. Judge may consult counsel in chambers before trial. (3) Subject to any hypothec existing prior to attachment, all writs of execution lodged with the sheriff or his deputy, as the case may be, in accordance with the provisions of subrule (2) of this rule shall rank pro rata in the distribution of the proceeds of the property or goods sold in execution. Time for replying to pleading where application for particulars made, 143. Interpleader notice: conflicting claims, 206. (2) In any application referred to in subrule (1), where the name of any person is to be suggested to the court as curator of the property, such name shall be referred to in the application or otherwise submitted to the Master for his approval. Where by any law a certificate or other document is required to be attached to or filed with any pleading, it shall be sufficient to attach or file a photocopy or other facsimile of the certificate or document: Provided that the original certificate or document shall be produced at the trial if the court or a judge requires the party concerned to do so. (9) Merely formal documents shall be omitted, and no document shall be set forth more than once. (2) No judgment creditor lodging a writ of execution with the sheriff or his deputy, as the case may be, shall be entitled to share in or receive any part of the proceeds levied under any writ or writs of execution previously lodged unless such creditor has lodged his said writ by not later than the day immediately preceding the date of the sale in execution. So help me God.”. If no objection is made to the plan of distribution within the time provided for that purpose, the said plan shall be confirmed by the sheriff. Failure of attorney to give notice to client, 173. 43 or 44, as may be appropriate, and may be served in any of the ways provided in Order 5. When defendant entitled to immediate discharge from arrest, 285. Applications involving Deeds Registry, 256. Review proceedings by notice of motion, 259. If the question in dispute is one of law, and the parties are agreed upon the facts, the facts may be admitted and recorded at the trial and the court may give judgment without hearing any evidence. Notice to admit facts or documents: forms and filing, (1) A party may by notice in writing at any time not later than 10 days before the day for which notice of trial has been given –. (3) Where the judgment is against a firm, the partnership property shall first be exhausted, so far as it is known to the judgment creditor, before the judgment is executed against the separate property of the partners. The court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just. 191. Failure to pay or perform in accordance with offer or tender, 149. Particulars required: misrepresentation, fraud, etc. The party so called upon shall reply thereto within 10 days of delivery of the notice. 202. Where the sheriff or his deputy is in doubt as to the validity of an attachment or contemplated attachment he may require that the party suing out the process shall give him security to indemnify him. Mode of service: judgment debtor: garnishee, . Entry of appearance to defend shall be effected by the defendant or his legal practitioner who shall record in the appearance book at the registry where he has been called upon to enter appearance –. Costs where notice includes unnecessary facts or documents, 192. (5) When a contract, promise or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise or agreement alleged or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise or agreement. Effect of offer or tender on costs in proceedings, 151. Court may give leave to defend unconditionally or on terms, 72. 170. Undertaking by debtor to produce property on day of sale, 337. Service of process shall not be valid if served between 10 p.m. and 6 a.m.: (a) process for the arrest of any person; and. At any stage of the proceedings the court may –. (3) If he is already in possession of the property, the sheriff may make a chamber application for an order ejecting him or any person claiming to hold under him therefrom. (2) An application shall not be made as a chamber application unless –, (a) the matter is urgent and cannot wait to be resolved through a court application; or, (b) these rules or any other enactment so provide; or, (c) the relief sought is procedural or for a provisional order where no interim relief is sought only; or, (d) the relief sought is for a default judgment or a final order where –, (i) the defendant or respondent, as the case may be, has previously had due notice that the order will be sought, and is in default; or, (ii) there is no other interested party to the application; or, (iii) every interested party is a party to the application; or. (2) As soon as possible after filing an answering affidavit in terms of subrule (1), the applicant shall serve a copy of it upon the respondent and, as soon as possible thereafter, shall file with the registrar proof of such service in accordance with rule 41. Consideration of application and submissions by presiding judge, 266. (1) If on the calling of any case the plaintiff or the plaintiff in reconvention appears in court personally, or by his counsel, and the other party is in default, the court may, subject to rule 60, grant judgment or make such order as it considers the plaintiff or the plaintiff in reconvention, as the case may be, is entitled to upon the summons, declaration or claim in reconvention, as the case may be. (a) eject a judgment debtor from any premises pursuant to a writ of execution; or. The burden of proof and the right or duty to begin, 438. (4) Nothing herein contained shall prejudice the rights of the plaintiff against any defendant to the action. (3) If the sheriff finds that a caveat has been lodged in respect of the immovable property concerned, he shall notify the person at whose instance it was lodged that the immovable property has been attached: Provided that the sheriff may require the party at whose instance the property was attached to give the notification required by this subrule. (3) Every document afterwards served, delivered or filed in such matter shall be marked with such number by the party delivering it, and shall not be received by the registrar until so marked. Facts and allegations already set forth in the plea, or in the declaration and admitted in the plea, may be incorporated in the claim in reconvention by reference to the relevant paragraphs of the plea or declaration as the case may be. Effect of interpleader notice issued by defendant in action, 213. 410. (2) A person who receives a notice in terms of subrule (1) shall, within five days after receiving it –, (a) furnish the party concerned with a written statement containing the required information; and. (2) A party who pleads over may be allowed the costs of such plea to the merits even where the case is disposed of without going into such merits. The sheriff or his deputy shall upon any arrest made by virtue of any such writ serve on the defendant a true copy thereof and of the documents on which the claim is founded. Judge may consult counsel in chambers before trial, 184. (1) In every case where the plaintiff’s claim is for a decree of divorce and adultery or other misconduct is alleged and the name of the person with whom the defendant is alleged to have committed adultery or the misconduct is given in the summons or declaration, whether or not such person is joined in the suit as a co-defendant, a copy of such summons or declaration shall be served on such person in the manner prescribed in Order 5. Procedure where co-defendants are opposed in interest to each other, . (3) Where the burden of proving one or more of the issues is on the plaintiff and that of proving others is on the defendant, the plaintiff shall first call his evidence on any issues proof whereof is upon him, and may then close his case, and the defendant shall then call his evidence on all the issues. (3) Where a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or other legal representative may, by notice filed with the registrar and served on all other parties to the proceedings, state that he wishes to be substituted for that party, and thereupon, subject to subrule (4), he shall be deemed to have been so substituted in his capacity as curator, trustee or legal representative, as the case may be. Where application has not been made in terms of rule 262, an application in writing may in special circumstances be filed with the registrar within 12 days of the date of the sentence. A joinder of issue shall operate as a denial of every material allegation of fact in the pleadings upon which issue is joined except any facts which the party may be willing to admit. (2) Such notice shall be given not less than three days before the hearing but may, if the court so allows, be given during the course of the hearing. Magistrate a commissioner of court for examining witnesses, 423. In an inquiry in terms of rule 369, the court shall –, (a) call upon the judgment debtor to adduce evidence as to his financial position; and, (b) receive any evidence that may be adduced by or on behalf of the judgment debtor or the judgment creditor in regard to the judgment debtor’s financial position and his ability to pay the amount due, whether such evidence is adduced orally or by affidavit or in any other manner that the court considers appropriate; and. Discharge from arrest: where judgment given against defendant, . The nature of the security and the amount thereof shall be fixed by the registrar with leave to either party to appeal against his decision to the court. (5a) Without derogation from subrules (3) to (5), where the dwelling that has been attached is occupied by the execution debtor or members of his family, the execution debtor may, within 10 days after the service upon him of the notice in terms of rule 347, make a chamber application in accordance with subrule (5b) for the postponement or suspension of –, (a) the sale of the dwelling concerned; or. (1) In any action after pleadings are closed, or by leave of a judge after appearance has been entered, either party may make a chamber application for directions in respect of any interlocutory matter on which a decision may be required. For the purpose of issuing summonses and subpoenas and writs of arrest under Order 36 in districts other than Harare or Bulawayo, magistrates shall within their respective districts be district registrars of the High Court. Judgment or order which court may give, 97. The court may, during the course of any action or proceedings, order the production by any party thereto under oath of such documents in his power or control relating to any matter in question in such action or proceedings as the court may think just, and the court may deal with such documents, when produced, as it thinks just. (2) If the party receiving the notice states that the documents are not admitted as aforesaid, such documents shall be proved by the party giving the notice before he is entitled to use them at the trial but the party not admitting them may be ordered to pay the costs of their proof. (a) permit evidence to be led in respect of any reduction of the plaintiff’s claim; (b) put to any person who gives oral evidence questions –. Service where person to be served prevents service or cannot be found, 42A. Registrar may release debtor from prison in certain circumstances, 377. (1) In the case of failure to reply to the notice to admit any facts within 10 days of delivery the party called upon therein shall be taken as having admitted all such facts for the purposes of the cause, matter or issue only. Immediately on the delivery of such writ the sheriff or his deputy shall execute the same in terms thereof. Effect of service on garnishee in regard to debt due or becoming due, 385. Amendment in declaration of claim stated in summons, 117. There shall be delivered together with the interpleader notice an affidavit stating that the applicant –. Unless the court or a judge otherwise directs, or the parties agree to the contrary, any movable property sold in execution shall be sold publicly and for ready money by the sheriff or his deputy to the highest bidder at or near to the place where the same was taken or to which the same has been removed as aforesaid as may be advantageous for the sale thereof; and the said sheriff or his deputy shall publish notice of the sale in a newspaper circulating in the district. (2) Where the defendant remains in default the plaintiff may after the expiry of 10 days from the date of service of the declaration set down the case for judgment on an appropriate day specified in subrule (1) of rule 223 without notice to the defendant, and thereupon, subject to rule 60, the court may grant judgment or make such order as it considers the plaintiff is entitled to upon the summons or declaration. (2) A copy of the proposed interrogatories in Form No. Transmission of telegraphic or faxed copies of process, SERVICE OF PROCESS IN PROCEEDINGS AGAINST STATE, 43B. (1) In cases where the plaintiff’s claim is not for a debt or liquidated demand only, and the defendant has failed to enter appearance after the period prescribed in the summons for entering appearance, the plaintiff shall file and serve his declaration if he desires to obtain judgment. Such application shall be supported by affidavit setting forth the particular circumstances in which the application is made. Court may order plaintiff’s claim and claim in reconvention to be tried separately, 125. Party bill of costs, 185 ( i ) and ( 3 a... Of paragraph ( b ) gives oral evidence unnecessary, 278 each year to! Filing and it shall also be filed before trial made under the other Useful tab! Want of Form, 109 R 269A ins by SI of 5 ; am SI! 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