FACULTY OF LAW

GROUP MEMBERS

RHODA MAFA R227232X

TRIVONNE CHISHANO R227419F

ROBIN MAKAZA R227322W

GRACIOUS OBERT R227241Y

MOLYN KATIZA R2111203T

LINDIWE R MHANGARA R208122B

DERLIN ZIBOTCHWA R2011508W

GAMUCHIRAI ZIYAMBI R227517V

COURTNEY KAMPOTA R227331C

KUNDAI L MADONDO R217295E

MODULE: ADVANCED CIVIL PROCEDURE LB50

YEAR: 2024

QUESTION: WHAT ARE THE REQUIREMENTS AND PROCEDURES FOR THE

FOLLOWING:

1.1 Application for a default Judgement

What is default judgement

A default judgment occurs when the defendant in a legal case fails to respond to a
court summons or does not appear in court. If this occurs, a court may rule in favor
of the plaintiff by default. If damages were included in the complaint, the default
judgment will take those into consideration unless proof of those damages is
required.1The onlt recourse a defendant has is to apply for rescission of a default
judgement. This was illustrated in the case of Zvivanashe v Ndlovu where Gwaunza
JA as he then was aptly noted that “ counsel for the respondent contends correctly
that a default judgement can only be set aside by a successful application for
rescission for the judgement under the rules of the relevant court. The application
must be made by the defaulting party himself, as indicated by the expression,
‘purging his default.’2 The application for default judgement can also be made when
the defendant is present but does not make a defence, that defendant id dement to
be absent.3

Where there is a claim for a debt or liquidated demand and there is no appearance
to defend entered, the plaintiff can make a chamber application for the judgement in
terms of Rule 57. Where the claim is on an unliquidated demand then the procedure
is set out in R58. The requirements to make a default judgement are as follows, the
defendant must have had due notice that such an order will be sought and that they
are in default, this is usually in the form of a declaration, there must be no other

1
https://www.investopedia.com/terms/d/default-judgment.asp
2
Zvinashe v Ndlovu 2006 (2) ZLR
3
Katristis v De Macedo 1966 (1) SA
interested party and every interested party must be a party to the application. 4If the
defendant is served with the summons and the dice induce lapses then the party will
be in default. This was illustrated in the case of Rydale Ridge Park (Pvt) Ltd v Ruth
Muridzo , in this case the defendant was served with the summons and failed to
apply for appearance to defend then the applicant applied for a default judgement
against the defendant.5

The procedure is as follows:

1. The plaintiff must file and serve the declaration which serves as a reminder to
the defendant that they have not entered appearance to defend or rendered
any form of response and that they are in default

2. If the defendant remains in default after service of the declaration then the
plaintiff may proceed to make a court application for default judgement by
setting the matter down for hearing in terms of rule 223(1).

3. The court will then consider the matter except where it is a claim for damages
,the court will require evidence as to the quantum of damages R60.

4. The evidence to be quantumed should be filed within a specified time limit e.g.
if a matter is set down for hearing in Harare then the affidavit must be filed by
10 a.m on the Friday immediately preceeding the Wednesday on which the
case is set down

1.2 SUMMARY JUDGEMENT

WHAT IS SUMMARY JUDGEMNT

Beresford Land Plan (pvt) Ltd v Urquart 1975 (1)

It was observed that summary judgment is a legal process that ensures that the legal
process in civil cases is not abused by unscrupulous litigants who have no defence
to the claim but may be tempted to delay its smooth conclusion on flimsy grounds.

A summary judgement is a procedure that protects a plaintiff against an ill-disposed

defendant who defends the matter purely to delay its finalization, it is a remedy that
4
Rule 57(2)
5
Rydale Ridge (Pvt) Ltd v Muridzo NO SC226/22
may be deployed to prevent an abuse of the court procedure by a recalcitrant
defendant.

REQUIREMENTS OF SUMMARY JUDGEMENT

Tavenhave and Machingauta Legal Practitioners and the Messenger of Court S

53/14

The court elucidated the requirements when it made the following pronouncement,

Summary judgement is a drastic remedy which will only be granted where the
defendant has no bona fide defence and has entered appearance to defend solely
for the purpose of delay. Because of the drastic nature of the remedy a court will not
grant it if there is any possibility that the defence raised on papers might
succeed .Thus it has been held that a mere possibility of success will suffice to avoid
an order of summary judgment and that all that a defendant has to establish in order
to succeed in having an application of summary of judgment dismissed is that there
is a mere possibility of success , he has a plausible case , there is a triable issue or
there is a reasonable possibility that an injustice may be done if summary judgment
is granted .

From the above it is indicated that the basis of granting the claim is to allude to the
fact that the plaintiffs is unimpeachable and that the defendants defence is not bona
fide or is bad at law. Summary judgment is a remedy that may be deployed to
prevent an abuse of the court procedure by a recalcitrant defendant

PROCEDURE FOR SUMMARY JUDGMENT

This is formulated in terms of rule 30(1), where the defendant has entered an
appearance to defend, the plaintiff may at any time before the pretrial conference is
held make a court application in terms of the rule for the court to enter summary
judgment for what is claimed in the summons and costs. The onus to satisfy the
court that good prima facie defence exists is on the respondent. Hales v Doverick
Investments (pvt) ltd 1998(2) ZLR235 (H) it was held that, where a plaintiff applies
for summary of judgment against the defended the defended raises a defence, the
onus is on the defendant to satisfy the court that he has good prima facie defence
Rule 30(2) provides that a court application in terms of subrule (1) shall be supported
by an affidavit made by the plaintiff or by any other person who can swear positively
to the facts set out therein, verifying the cause of action and the amount claimed, if
any, and stating that in his or her belief there is no genuine and sincere defence to
the action and that appearance to defend has been entered solely for purposes of
delay. (3) A deponent may attach to his or her founding affidavit filed in terms of
subrule (2) documents which verify the cause of action or his belief that there is no
genuine and sincere defence to the action. The case of Takawira v Zimbabwe Iron
and Steel Company Limited says that it means that an applicant for summary
judgement is required to do is to depose to an affidavit verify the cause of action, the
amount claimed and expressing the belief there is no bonafide defence.

1.4 Application for dismissal of frivolous and vexatious pleadings

Definition of terms

Frivolous and vexatious pleadings

is abuse of the process of the court to prosecute in it any action which is so groundless
that no reasonable person can possibly expect to obtain relief. In the case of Rogers v
Rogers6,the Supreme Court held that an action is “frivolous or vexatious” in a legal
sense when it is obviously unsustainable, manifestly groundless or utterly hopeless and
without foundation. Further, BOSHOFF J in S v Cooper 7 said that the word “frivolous” in
its ordinary and natural meaning connotes an action characterized by lack of
seriousness.

Section 85(1) of the Constitution, liberalised the scope of locus standi in Zimbabwe in a
bid to ensure that everyone has access to justice. Put differently the section allows a
wide range of persons who can demonstrate an infringement of their rights or those of
others to approach the courts for relief 8. It is intended to enhance access to justice by
individuals and groups without the knowledge and resources to vindicate their rights in
the courts

6
Rogers v Rogers and Another SC 64/07
7
S v Cooper & Ors 1977(3) SA 475 at 476D
8
Section 85(1), the Constitution of Zimbabwe amendment No 2013
However, not all lawsuits have merits or should proceed. Some maybe frivolous or
vexatious. if the court has found that a claim is frivolous or vexatious, the court may
strike out all or part of the claim. hence the application for dismissal of frivolous and
vexatious pleadings. Also, section 175 (4) of the Constitution provides access
specifically to the Constitutional Court where a constitutional matter arises amid
proceedings before any subordinate court.

(4) If a constitutional matter arises in any proceedings before a court, the

person presiding over that court may and, if so requested by any party to the
proceedings, must refer the matter to the Constitutional Court unless he or she
considers the request is merely frivolous or vexatious.

This means the court may, of its own motion or if requested by any party, refer a
constitutional matter that arises in any proceedings before a court.

In addition to s 175 (4) 9of the Constitution which provides the framework, Rule 24
further mirrors the second part of s 175(4) of the Constitution which deals with a
request for referral and mainly reinforces the principle that where a court is satisfied
that the request is not frivolous or vexatious it has an obligation in terms of both the
Constitution and the Rules to refer the matter to the Constitutional Court 10. The request
may be made orally or through a written application. The request must clearly specify
the constitutional question. In addition, it must indicate how the question arises. In
Nyagura v Ncube N.O. and Ors, the court succinctly held as follows in this regard:

“If the presiding person is of the view that the determination of the
constitutional matter by the Court is necessary for the purposes of the
proceedings and that the request for a referral is not frivolous or vexatious, he
or she is obliged to refer the matter to the Court for determination. If the
presiding person is of the opinion that the request for a referral is frivolous or
vexatious, he or she shall refuse the request. … There must be evidence that
a request for a referral of a constitutional matter to the Court was made to the
presiding person.11

It is salient to note that the dismissal of frivolous or vexatious pleadings is the reverse
of summary judgement. In that case, it is the defendant who alleges that the plaintiff’s

9
Section 175(4) of the Constitution of Zimbabwe (amendment No 20)
10
Rule 24 of the Constitutional Court Rules (SI 61 0f 2016)
11
Nyagura v Ncube N.O. and Ors CCZ 7/19.
claim is of no substance and should be dismissed in a summary manner. So, the
defendant can apply for the dismissal of plaintiff’s action on the grounds that it is
frivolous or vexatious. According to rule 31 of the High Court rules of 2021 12The
application is made by the defendant or by the person who can swear positively to the
testament stating that he believes that the claim is frivolous or vexatious and stating out
the reasons for his belief. further, deponent of the affidavit may attach to his affidavit
documents verifying his belief that action is frivolous and vexatious. The court may

(a) grant the application in which event it shall dismiss the action and enter judgment of
absolution from the instance; or

(b) dismiss the application in which event the action shall proceed as if no application
was made; and

(c) make such order as to costs as it considers necessary in the circumstances.

The phrase ‘frivolous and vexatious’ is one our courts have dealt with on numerous
occasions. In Martin v Attorney-General & Another13,the court held that the test is
whether the referral would constitute an abuse of the process of the court and has to be
determined applying an ethical and objective thought to the question. By making this
determination, the lower court enforces the constitutional principle that only deserving
and important cases ought to be allowed to get the attention of the court. This explains
the requirement that the lower court explicitly pronounces itself as to whether the
application is frivolous or vexatious. The absence of such finding makes a referral ill-
suited before the court.

Procedure for the dismissal of frivolous or vexatious pleadings

An application for the dismissal of frivolous or vexatious pleadings is a court application

meant to terminate groundless pleadings. The procedure if found in terms of rule31 of
the high court rules of 2021 which states that:

(1) Where a defendant has filed a plea, he or she may make a court application for the
dismissal of the action on the ground that it is frivolous or vexatious and such
application shall be supported by affidavit made by the defendant or a person who can

12
Rule 31 of S.I. 202 of 2021
13
Martin v Attorney-General & Another 1993 (1) ZLR 153 (SC).
swear positively to the facts or averments set out therein, stating that in his or her belief
the action is frivolous or vexatious and setting out the grounds for such belief and a
deponent may attach to his or her affidavit documents which verify his or her belief that
the action is frivolous or vexatious and whereupon the court may—

(a) grant the application in which event it shall dismiss the action and enter judgment of
absolution from the instance; or

(b) dismiss the application in which event the action shall proceed as if no application
was made; and

(c) make such order as to costs as it considers necessary in the circumstances.

(2) Where on the hearing of an application made under this rule in a case in which
there is more than one defendant, it appears that as against one defendant the action is
frivolous or vexatious, but it does not so appear as against another defendant, the court
may order that as against one defendant the action be dismissed and judgment of
absolution from the instance with costs be entered, but that against another defendant
the plaintiff, be at liberty to proceed with the action. S.I. 202 of 2021 1135

(3) Where the defendant has filed a plea and the plaintiff has not, after one month of
the filing of such plea, taken any further step to prosecute the action, the defendant
may, on notice to the applicant, make a court application for the dismissal of the action
for want of prosecution and such application shall be supported by affidavit made by
the defendant or a person who can swear positively to the facts or averments set out
therein, setting out the grounds for seeking that relief and on hearing an application the
court may either grant the application or dismiss it and make such order as to costs as
it considers necessary in the circumstances.

1.5 Stay of Execution

This is a formal request to temporarily suspend or delay the enforcement of a

judgement or court order this can be prior to hearing an appeal or further review or
determination of an application for rescission of default judgement. It is the process
of the court and the court has inherent power to control its process subject to the
rules of court14, it was decided that for the court to grant stay of execution it must be
satisfied that an injustice would occur if stay of execution is not granted and this
initially becomes a requirement of a stay of execution in simple terms there should
be real and substantial justice acquired at the end.

This would mean that justice would turn on its head if stay is not granted when
requested15. It is important to take note that the court should not be in a rush to grant
stay of execution as it could be prejudicial to the other party, rather it is important
that the, ‘court should consider what is just and equitable in all circumstances 16’. If
the court is to grant stay of execution it will be doing so at the expense of a litigant
who has already established in court his right and title to what is being claimed 17.

In addition to the above, it has been noted as in the words of Jenssen JA that,

‘the grant or withholding of a stay of execution is at common law, a matter of

discretion reserved to a court in which such a discretion is imposed’18.

Stay of execution as a court process is a tool for the audi alteram partem principle
which is of fairness and natural justice that provides an administrative authority
including courts such that they should not make a decision adverse to a person
without affording that individual the chance to air or present his or her side of the
story. This ensures that the administrative authority gives a fair and balanced
decision and the public in this way will have confidence in the system 19. This is why it
is important for a person seeking stay of execution to satisfy the court that if
judgement should not be stayed, injustice will be caused to him. The High Court Act
presents this aspect as depicted in section 1420 which provides how an interested
person can inquire into and determine any existing, future or contingent right or
obligation notwithstanding that the person cannot claim any relief consequential
upon such determination. Henceforth, the person seeking stay of execution is

14
Cohen v Cohen 1979 RLR page 184 at 18B
15
Reef Mining (Pvt) Ltd & Another v The Sheriff HH-163-15
16
Tranos Toziva Madaka H-B-116-89. ‘The High court held that, the court has however a
discretion to grant an application to execute on the judgement prior to a hearing of the
appeal…’
17
Chibanda v King 1983 (1) ZLR 116. ‘Such mercy should rather be sought in the main
action itself before judgement is given’.
18
Vengesai & Ors v Zimbabwe Glass Industries Ltd 1988 (2) ZLR 593 (H) at 598T
19
Damson v Dzipange & Another (830 of 2022)[2022]ZWHHC 830
20
High Court Act Chapter 7:06 section 14
presented as an interested individual and it pays attention to section 69 21 of the
Constitution which looks on the right to fair hearing, that every person has the right to
access to the courts…for the resolution of any dispute and an application of stay of
execution does not fall out of this bracket.

Therefore, there are principles which have arose from the audi alteram partem
principle as a result of stay of execution these include that, ‘the court has jurisdiction
to stay execution where real and substantial justice so demands and the onus rests
on the party seeking to stay execution to satisfy the court that special circumstances
exists22’.

Procedure

An application for stay of execution is a chamber application that is applied to

suspend the enforcement of a court judgment pending rescission of default
judgement or appeal that can either be a normal chamber application or an urgent
chamber application depending on the circumstances. The procedure for chamber
application is found in terms of rule 60 of the High Court rules of 2021. According to r
44 (2) of the High Court (Commercial Division Rules) 2020 ousts the common law
position. It provides that: “An appeal from the decision of the court shall not suspend
the operation of the decision appealed against, unless the court or judge directs
otherwise on application by the aggrieved party”23

1. File notice of appeal or recession

The party against whom the award or finding of a court is made if they intend to
appeal they need to file a notice to appeal and relief sought and they must fulfil the
requirements of service for such a notice.

2. File application for stay of execution pending court processes

Once notice has been filed the party seeking stay of execution for the stay of
execution of the court order pending court proceedings. This application must be
supported by one or more affidavits in terms of rule 60(1).

21
Constitution of Zimbabwe (No.20) Act 1 of 2013
22
Geffen v Srand Motors Private Limited 1962 (3)
23
Mashamhanda v Bariadie Investments Private Limited and Another (17 of 2024) 2023 ZWSC 17 (10
December 2023)
 3. Service of application
The application for stay of execution must be served on all interested parties to the
court proceedings in accordance to r 60(3). Sub-rule 3 also brings out exceptions to
this general position where the application for stay of execution may not be served
on the other interested party(s) and if so according to sub-rule 4 he or she shall set
out the grounds for his or her belief fully in his or her affidavit
4. Heads of argument
The parties must file their heads of arguments and according to Rule 60 (5) a
chamber application may be accompanied by heads of argument clearly outlining the
submissions relied upon and setting out the authorities which justify the application
being made without notice and in support of the order sought.
5. Hearing
The registrar will set down the matter for hearing of the application before the judge
a judge where the judge considers the matter whether to grant or refuse the stay of
execution. If the application is urgent according r 60(6) the registrar shall
immediately submit it to the duty judge, handling urgent applications who shall
consider the papers forthwith.
6. Judgement
The judge can either grant, “(9) Where in an application for a provisional order the
judge is satisfied that the papers establish a prima facie case he or she shall grant a
provisional order either in terms of the draft filed or as varied” or dismiss the
application for stay of execution. If it is granted it can be subject to certain conditions
for example the payment of security for any loss or damage as pointed by sub-rule
10. The stay of execution cab be granted for a specific period or until a further order
of the court upon exercise of judicial discretion.24

1.6 Application for execution pending appeal

What is Application pending appeal?

An application for execution pending appeal is a legal request made to allow the
enforcement of a court judgment even while an appeal against that judgment is still
ongoing.

It is available by operation of law.

24
https;//taumrewa.co.zw/application-for-stay-of-execution(accessed October 1 2024)
In Zimbabwe Mining Development Corporation and anor v African Consolidated
Resources plc and ors, 2010 (1) ZLR @ 37 E 25, it was held that “At common law the
noting of an appeal against a judgment suspends the operation of that judgment. It is
also trite that at common law the court granting the judgment enjoys the inherent
jurisdiction to order the execution of the judgment despite the noting of an appeal”.

The principle to be applied by the court considering the grant of an

application for leave to execute on a judgment under appeal is what is just
and equitable in all circumstances as was reiterated in Whata v Whata 1994
(2) ZLR 277 (S) at 281 B-C 26

The requirements to succeed in an application for leave to execute pending appeal.

They are laid out in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1)
ZLR 275 (S) @281A-D)27
i. The potential for the appellant (respondent in the application) suffering
irreparable harm or prejudice should leave be granted;
ii. The other side of the coin being the potential for the respondent (applicant
in the application) to suffer irreparable harm or prejudice should the leave
to execute be denied;
iii. The balance of hardship or convenience should there be potential of
irreparable harm to either the appellant or the respondent;
iv. The prospects of success on appeal. In this regard, the court must
consider whether the appeal is frivolous and vexatious, or is not bona fide,
either because it is not a genuine search to reverse the judgment but is
meant to gain time or harass the other party.

The requirements to withstand an application for leave to execute pending appeal

As per JACOBUS KOTZE CARSTENS v EDWARD MARK WARHURST N.O and
ors HC 4529/2128
Therefore, in order to succeed against an application to execute pending appeal, the
respondent must show that
i. There are good or reasonable prospects of success on appeal,
ii. The potential harm in allowing execution pending appeal is irreparable;
iii. The balance of hardship weighs in its favour

The procedure
It is found in terms of rule 60 of the High Court rules of 2021
25
Zimbabwe Mining Development Corporation and anor v African Consolidated Resources plc and
ors, 2010 (1) ZLR @ 37 E
26
Whata v Whata 1994 (2) ZLR 277 (S) at 281 B-C
27
Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S) @281A-D)
28
JACOBUS KOTZE CARSTENS v EDWARD MARK WARHURST N.O and ors HC 4529/21
1)File a notice of appeal
The appeal must be noted (the notice of appeal must be filed and served on the
respondent) containing grounds of appeal and the relief sought.
Rule 60(1)
2) Draft an application for execution pending appeal with: (a) founding affidavit
(b) Supporting affidavit
Rule 60(3)
3) Filing and service to the other party or and other interested parties
4) hearing
The registrar will set down the matter for hearing of the application before the judge
a judge where the judge considers the matter whether to grant or refuse the
application for execution pending appeal. If the application is urgent according r
60(6) the registrar shall immediately submit it to the duty judge, handling urgent
applications who shall consider the papers forthwith.
5) Judgement
In Zimbabwe, when an application for execution pending appeal is made, the court
may grant one of the following judgments:

a. Leave to execute: Allows the judgment creditor to execute the judgment despite
the appeal.

b. Stay of execution: Halts execution of the judgment until the appeal is finalized.

c. Conditional leave to execute: Allows execution subject to conditions, such as

provision of security.

d. Dismissal of application: Rejects the application, maintaining the status quo.

1.3 Application for dismissal for want of prosecution

Requirements

In accordance with the rules applicable to an application for dismissal for want of
prosecution grounds viable for such application to be lodged against a party to
proceedings are inclusive of when the plaintiff has been barred from declaring or
making a claim in line with rule 26 of the High Court rules 2021. It is important to
note that under this rule the application is instituted by the defendant without notice
to the plaintiff. Another fertile ground for such application for dismissal for want of
prosecution in when the defendant has filed a plea and the plaintiff has not, after one
month of filing of such plea taken an, after one month of filing of such plea taken any
action, the defendant may make such application for the dismissal of the action for
want of prosecution. This application is made in terms of rule 31(3) and is made on
notice to the plaintiff. The application is submitted by an affidavit made by the
defendant who swears positively to the facts or averments set out there in setting out
the grounds for seeking such dismissal of action for want of prosecution. Moreso, in
line with rule 59(15) another ground for such application is stipulated to be where the
respondent has filed a notice of opposition and an opposing affidavit and within one
month thereafter, the applicant has neither filed an answering affidavit nor set the
matter down for hearing, the respondent on notice may make a chamber application
to dismiss the matter for want of prosecution. It is important to note that respondent
has an option to apply for set down of the matter in terms of rule 65 before lodging
such application for dismissal for want of prosecution.

Procedure

According to rule 31(4) the rules relating to the filing of court applications shall apply
to such application for dismissal for want of prosecution under the rule and to any
opposition thereto. This implies that the application for dismissal for want of
prosecution is to be made and in compliance in terms of rule 59.

1.Application on the grounds of rule 26

-Instituted via chamber application

-No notice is served on the plaintiff by defendant

2.Application on the grounds of rule 31(3)

-Notice is served on the plaintiff

-Court application made in line with rule 59 which shall be submitted by affidavit by
the defendant

3.Application on the grounds of rule 59(15)

-Notice to be served on the applicant

-Chamber application for dismissal of matter for want of prosecution

-Respondent to exercise discretion between application for dismissal for want of

prosecution and application for set down of the matter for hearing in terms of rule 65

BIBLIOGRAPHY
CASES
JACOBUS KOTZE CARSTENS v EDWARD MARK WARHURST N.O and ors HC
4529/21

Zimbabwe Mining Development Corporation and anor v African Consolidated

Resources plc and ors, 2010 (1) ZLR

Whata v Whata 1994 (2) ZLR 277 (S) at 281 B-C

Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S)

Damson v Dzipange & Another (830 of 2022)[2022]ZWHHC 830

Geffen v Srand Motors Private Limited 1962 (3)

Mashamhanda v Bariadie Investments Private Limited and Another (17 of 2024)

2023 ZWSC 17 (10 December 2023)

Cohen v Cohen 1979 RLR

Reef Mining (Pvt) Ltd & Another v The Sheriff HH-163-15

Tranos Toziva Madaka H-B-116-89

Chibanda v King 1983 (1) ZLR 116.

Vengesai & Ors v Zimbabwe Glass Industries Ltd 1988 (2) ZLR 593 (H) at 598T

Nyagura v Ncube N.O. and Ors CCZ 7/19.

Martin v Attorney-General & Another 1993 (1) ZLR 153 (SC).

Zvinashe v Ndlovu 2006 (2) ZLR

Katristis v De Macedo 1966 (1) SA

Rydale Ridge (Pvt) Ltd v Muridzo NO SC226/22

Legislation

High Court Act Chapter (7:06)

High Court Rules 2021

Constitution of Zimbabwe (No.20) Act 1 of 2013

Websites
https://www.investopedia.com/terms/d/default-judgment.asp