Faculty: Faculty of Law

Subject: Civil Procedure (Superior Courts)

Group: Group 1 BLP

Course Code: BLP

Lecturer: Mr. R Matsikidze

Students & Registration Numbers

Chadambuka Memory R191014U

Chatakuta Emilda T R211154F

Chigumira Tatenda R145477H

Chipango Takudzwaa T R211547G

Chuma Dickson R211240P

Kadunguruzhi Bongani R211153U

Kanokanga Prince R211555F

Karoro Joris T R211553W

Machaya Tafara R211146T

Nyajeka Lindsay R034725K

 1. WHAT ARE THE KEY REQUIREMENTS FOR A VALID SUMMONS AND
DECLARATOR?

A. SUMMONS
1.1. Rule 12 of the High Court Rules, 2021 provides the key requirements
for a valid summons. Every action is commenced by way of a summons
which is addressed to a Defendant and signed by the Registrar who issues
it. Consequently, an unissued summons is a nullity.1

1.2. In Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies

(Edms) Bpk 1972 (1) SA 773 (A) at 780G it was held that

A summons that is not issued by the registrar would be a nullity

and service of such a summons would not result in action being
instituted.’

1.3. Rule 12 Subrule 5 of the High Court Rules, 2021 provides the essential
details required for a valid summons. Consequently, every summons,
whether an endorsed summons, combined summons, or matrimonial
summons should contain:

(a) the surname and first names or initials of the defendant by which the
defendant is known to the plaintiff, the defendant’s residence or
place of business and, where known, the defendant’s occupation and
employment address and, if the defendant is sued in any
representative capacity, the capacity in which the defendant is sued;

(b) the full names, sex (if the plaintiff is a natural person), occupation
and the residence or place of business of the plaintiff, and if the
plaintiff sues in a representative capacity, the capacity in which the
plaintiff is suing;

1
Moutloung & Another v The Sheriff, Pretoria East & Others [2020] ZASCA
 (c) the plaintiff’s email address, facsimile, telephone or cellular phone
number and those of the defendant or the defendant’s legal
practitioner if known;

(d) a true and concise statement of the nature, extent and grounds of
the cause of action and of the relief or remedies sought in the action;
and

(e) the date of issue.

1.4. A summons should be drafted in accordance with the relevant Form in

the High Court Rules, 2021. A summons should give a concise statement
of the nature, extent and grounds of a Plaintiff’s cause of action and of
the relief or remedies which it he or she is seeking.

1.5. Furthermore, in order for a summons to have legal force and effect, it
should be direct at an existing legal or natural person. In Gariya Safaris
(Pvt) Ltd v Wav Wyk 1996 (2) ZLR 246 (H) it was held that:

“A summons has legal force and effect when it is issued by the

plaintiff against an existing legal or natural person. If there is no
legal or natural person answering to the names in the summons as
being those of the defendant, the summons is null and void ab
initio”.

1.6. The import of the words in Rule 12 Subrule 5 (d) of the High Court
Rules, 2021 is that prima facie a summons must be able without the aid
of a Declaration to stand on its own and failure to do so is fatal to the
summons or the Plaintiff’s claim.

1.7. The Rule requires in regard to setting out the cause of action, that it be
set out in concise terms. In Trans-African Insurance Co Ltd v Maluleka
 1956 (2) SA 273 (A), it was held that all that is required in settling out
the concise terms of one’s cause of action is to give a general indication
of the claim amounting merely to a label.

1.8. The use of the word ‘shall’ in Rule 12 of the High Court Rules, 2021
shows that the requirement is peremptory, and failure to comply with it
renders the summons invalid. In Bank of Credit & Commerce Zimbabwe
Ltd v Jani Investments (Pvt) Ltd 1983 (2) ZLR 317 it was held that:

“It will be immediately realised, of course, even by someone who

runs very quickly as he reads, the summons is wholly invalid since
it discloses no cause of action whatever. Any exception to such a
summons can only succeed instantly and completely.

1.9. The invalidity of summons, has long been recognised by the courts in
Zimbabwe. In Allen v Kinsey 1966 RLR 335 at 336 it was held that:

“It is essential that the summons should set out properly the cause of
action on which the plaintiff relies, however briefly this is done. If
Plaintiff sues on an agreement, it must appear that there was justa
causa for the agreement.

B. DECLARATION

1.10. It is significant to note that Rule 13 of the High Court Rules, 2021
provides for the key requirements which should be set out in a Plaintiff’s
Declaration. It begs the question, what is a Declaration. In simple terms,
a Declaration is a statement of the material facts relied upon by a
Plaintiff in support of his or her case. Put differently, a Declaration is a
combination of the facts which are material for a Plaintiff to prove in
order to succeed in his or her action.2

2
Dube v Banana 1998 (2) ZLR 92 (H)
1.11. Consequently, in every case in which a claim is not for a debt or
liquidate demand, a summons ‘shall’ have annexed to it a Declaration. In
Kumbula v Pearl Properties HH 20-16 it was held that:

“It can be noted from the above provisions that the content of a
summons which is not for a debt or liquidated demand only is the same
as the declaration. It is only an endorsed summons that will incorporate
the contents of a declaration.

1.12. The requirements for a valid Declaration are set out in Rule 13 of the
High Court Rules, 2021 which provide as follows:

13. (1) In every case in which the claim is not for a debt or liquidated
demand the summons shall have annexed to it a statement of the
material facts relied upon by the plaintiff in support of his or her claim,
to be called a declaration which shall state truly and concisely—

(a) the name and description of the party suing and his or her place of
residence or place of business; and

(b) if the plaintiff sues in a representative capacity, the capacity in

which he or she sues; and

(c) the name of the defendant and his or her place or residence or place
of business; and

(d) if the defendant is sued in a representative capacity, the capacity in

which he or she is sued; and

(e) the nature, extent and grounds of the cause of action.

(2) Every declaration shall state precisely the relief which the plaintiff
claims, either simply or in the alternative.

(3) Where the claim is for a debt or liquidated amount which includes
capital and interest on the capital, the declaration shall state such of
 the particulars set out in rule 12(9) to (10) as may be relevant to the
claim.

(4) Where the plaintiff seeks relief in respect of several distinct claims or
causes of action founded upon separate and distinct grounds, they shall
be stated, as far as may be, separately and distinctly.

(5) The provisions of rule 12(11) relating to amendment of summons shall

apply with the necessary changes to amendment of a declaration.

1.13. In order for the court to make a determination in an action, the court
will examine the claim brought by a defendant, the branch of law
concerned and determine if every fact which is material to be provide
has been pleaded.

1.14. Thus, a Plaintiff’s Declaration should not be vague and embarrassing. It

is therefore, incumbent upon a Plaintiff in its Declaration to set out
shortly and concisely a summary of the facts upon which he or she seeks
to rely and on which evidence will be led, in intelligible and lucid form. 3

Key requirements for summons

RULE 12 subrule 5 of the high court 2021 rules states the form that summons
should take. The provision states that. Before issue, every summons shall set forth

a) the surname and first names or initials of the defendant by which the defendant
is known to the plaintiff, the defendant’s residence or place of business and,
where known, the defendant’s occupation and employment address and, if the

3
Time Security (Pvt) Ltd v Castle Hotel 1972 (1) RLR 155; Jowell v Bramwell-Jones 1998 (1) SA 836
(W) 899-903
defendant is sued in any representative capacity, the capacity in which the
defendant is sued;
(b) the full names, sex (if the plaintiff is a natural person), occupation and the
residence or place of business of the plaintiff, and if the plaintiff sues in a
representative capacity, the capacity in which the plaintiff is suing;
(c) the plaintiff’s email address, facsimile, telephone or cellular phone number
and those of the defendant or the defendant’s legal practitioner if known;
(d) a true and concise statement of the nature, extent and grounds of the cause of
action and of the relief or remedies sought in the action; and
(e) the date of issue

In summary, the section is simply saying every summons must state the full names
of the defendant, their residence or place of business. If the defendant is sued in a
representive capacity that should be stated also and also the capacity, they are
being sued in. If the defendant full names are unknown state, the initials.
Furthermore, summons are to state full names, sex of plaintiff their residence, the
capacity in which they are suing and also their contact details

Both the plaintiff and defendant contacts should be included, including those of
their legal practitioners. Lastly the summons should state the nature, extent and
grounds of the cause of action and the relief sought. They should also state their
date of issue.

Furthermore, summons should give the defendant time upon which to enter an
appearance to defend (dies inducie) and this is 10 days in the High court. Authority
for that is HC rule 20. This excludes the day of service, every public holiday and
weekends.

Key requirements for a declaration

A declaration is a statement of the plaintiff ‘s claim when the claim is not for a
debt or
liquidated demand. Authority for that is rule 13(1) of the HC rules. The section
states every declaration shall include the following
(a) the name and description of the party suing and his or her place of residence or
place of business; and
(b) if the plaintiff sues in a representative capacity, the capacity in which he or
she sues; and
(c) the name of the defendant and his or her place or residence or place of
business; and
(d) if the defendant is sued in a representative capacity, the capacity in which he
or she is sued; and
(e) the nature, extent and grounds of the cause of action.
According to Rule 13(2) of HC rules every declaration shall state precisely the
relief which
the plaintiff claims, either simply or in the alternative. Where the relief claimed is
found on separate grounds.The grounds must be stated separately and
distinctively. HC rule 13(4)

2. WHAT IS THE EFFECT OF FAILURE BY THE PLAINTIFF TO COMPLY WITH

ANY OF THE ABOVE STATED REQUIREMENTS ON QUESTION 1

2.1. Where a Plaintiff fails for instance to have a summons issued by a

Registrar, then the ‘summons’ are a nullity, and any service of such a
summons does not result in an action having been instituted. See
 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies
(Edms) Bpk 1972 (1) SA 773 (A) at 780G

2.2. Where a summons has been issued against a non-existent person, the
summons is null and void ab initio. 4 In Privileged Trust v Shumba and
Another, it was held that:

The point taken is that a trust has no legal personality. The rules
do not confer it legal personality. The rules provide procedural
convenience only. Where a trust sues the trustees must have
authority either clearly set out in the Deed of Trust or by way of a
resolution by all the trustees.5

2.3. Therefore, where a Plaintiff fails to comply with the rules, the
‘pleadings’ will be deemed to be defective and invalid. That is to say a
nullity. It is not only bad, but incurably bad. Where for instance, a
summons does not set out a cause of action, it is fatally defective, and
cannot be condoned or amended. See Jensen v Acavalos 1993 (1) ZLR
216 (S).

2.4. Where a plaintiff’s summons and declaration fails to particular the cause
of action, rendering the pleading vague and embarrassing, a Defendant
suffers prejudice if it is forced to plead to such a pleading. The High
Court Rules, 2021 require a Plaintiff, in its Declaration to state truly and
concisely the nature, extent and ground of the cause of action.6

2.5. Where no cause of action is disclosed in pleadings, a Defendant can

except to the pleadings. In City of Harare v D & P Investments and
Others 1992 (2) ZLR 254 at 254D-E it was held that:

4
Gariya Safaris (Pvt) Ltd v Wav Wyk 1996 (2) ZLR 246 (H)
5
HH 693-21
6
Davidson v Standard Finance Ltd 1985 (1) ZLR 173 (H)
 An exception is an answer to the plaintiff’s claim or to the defence
claim. Its main purpose is to obtain a speedy decision upon a point
of law apparent on the fact of the pleading attacked and to settle
the dispute in the most economical manner by having the faulty
pleading set aside.

3) In case of summons that are based on a liquid document or in relation to

interest calculation or a claim for money due in terms of a mortgage. What are
the specific mandatory requirements for the summons?
A liquid document
A liquid document is an acknowledgement of debt. The term is not defined in the
High Court Rules but the following principles have emerged from the decided
cases:
1. Any clear, unequivocal and unambiguous written promise to pay a debt
constitutes a liquid document (Sibanda v Mushapaidze 2010 (1) ZLR 216 (H)
218 E-F.)
2. A liquid document which, on the face of it speaks unequivocally, must have
the story of the transaction behind it as an investigation into the story may
show that the defendant is not liable in terms of the liquid document.
(Allied Holdings Ltd v Myerson 1948 (2) SA 961 (W) at 968.
3. If the court has to go behind the liquid document the onus is on the
defendant to show that if evidence is heard the probabilities are that he
would succeed. (Allied Holdings Ltd v Myerson, supra)
 4. Where the legality of a document is called into question, as when the
document may be tainted with illegality, the court has to decide whether to
let the loss lie where it falls or to relax the rule against illegal agreements
in order to do justice between the parties, such an inquiry cannot be made
at provisional sentence stage but can only be determined at the trial of the
matter (Matsika v Jumvea Zim (Pvt) Ltd and Another 2003 (1) ZLR 71
(H); Sibanda v Mushapaidze, supra.)
5. Where the defendant denies that the signature on a document is his or that
of his agent, the onus is on the plaintiff to prove that the signature is his
(Donkin v Chiadzwa 1987 (1) ZLR 102 (H).
6. It would be a travesty of justice if the court were to grant provisional
sentence on the strength of vague, confusing and unclear documents whose
authenticity has been questioned (Briggs v Billiati and Another HH 749/15.)

The mandatory requirements for summons based on a liquid document

The High Court Rules 2021, Rule14 (1) and14 (2) provide that where the plaintiff is
a holder of a valid acknowledgement of debt, commonly known as liquid
document, the plaintiff may cause a summons to be issued claiming provisional
sentence on the said document. The summons shall state the amount and any
interest due by virtue of the said liquid document is legally claimable and shall call
upon the defendant to pay the amount claimed or failing such payement to
personally appear or by counsel on the floor of the court at the hour and on the
day not being less than 10 days after service and at the place stated in the
summons to admit or deny his or her liability.

Case law
In the case of Peter Mvemve v National Railways of Zimbabwe HB 189- 15, the
plaintiff issued summons for provisional sentence suing defendant for a sum of
$21112-77 which plaintiff claims is the total due to him by defendant for salary
arrears, cash in lieu of leave and refund of fees.in a bid to establish whether or
not the liquid document before the court successfully sustains a claim for
provisional sentence by the plaintiff against the defendant, the court considered
the South African case of Ruth and others v Lagerwery 1974 (4) SA 748 (AD) at
754 (A) the court said that if a document in question upon a proper construction
thereof, evidences by its form and without resort to evidence’ extrinsic thereto,
an unconditional acknowledgement of indebtedness, in an ascertained amount of
money, the payment of which is due to the creditor, it is one upon which
provisional sentence may properly be granted. The court did not grasp from any of
the documents filed by the plaintiff in support of its claim “an unconditional
acknowledgment of indebtedness in an ascertained amount of money by the
defendant written to the plaintiff. Other cases were considered and these cases,
the document must have a clear and unequivocal
acknowledgment of debt by the defendant. The acknowledgment must be for a
definite sum of
money. The document must conclusively show that the defendant is acknowledging
its
indebtedness on a specified sum of money. None of the documents attached by the
plaintiff passed
this test and accordingly the plaintiffs claim was dismissed with costs.

The mandatory requirements for summons based on a claim for money due in
terms of a mortgage bond
With reference to the High Court Rules, Rule 14(5) stipulates that, where
provisional sentence is claimed on a mortgage bond which has become due by
reason of notice given or interest being unpaid, the date when and the manner in
which notice was given or the particulars of the unpaid interest shall be stated in
the summons

The mandatory requirements for summons based on interest calculation

.
Rule 9, clearly states the particulars that have to be clearly stated in the summons
where the amount claimed includes capital and interest on capital. These are the
mandatory requirements:
a) The capital amount claimed
b) The total amount in interest claimed on the capital at the date of the
summons or as at an earlier date specified in the particulars
c) Whether or not interest is claimed on the total amount of capital and
interest referred to in (a) or (b) and if not, the amount in respect of which
any interest is claimed and the date from which interest is to run.
4) Remedies that are available to the defendant where the plaintiff has failed
to comply with the mandatory requirements provided for in terms of Order 12
of the High Court.

Remedies:

The first remedy available to the defendant is to write a letter to the plaintiff as a
courtesy call notifying him that the summons is defective and. The High Court
Rules , Rule 42 (3) provides that, before filing any exception to a pleading or
making a court application to strike out any portion of a pleading on any grounds,
the party complaining of any pleading shall, within the time allowed for filing a
subsequent pleading, by written letter to his or her opponent
state the nature of his or her complaint and call upon the other party to remove
the cause of the complaint within twelve days of the complaint

The High Court Rules, Rule 42(1) (d) gives the defendant the remedy to apply for a
further and better statement of the nature of the claim or for further and better
particulars of any matter stated in any pleading, notice or written proceeding
requiring particulars.

Another remedy available to the defendant is excepting the summons. This is

provided for in the High Court Rules, Rule 42(1)(b) which states that, as an
alternative to pleading to the merits, a party may within the period allowed for
filing any subsequent pleading: — except to the pleading or to single paragraphs
thereof if they embody separate causes of action or defence as the case may be
where the pleading vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the case may be.

Further particulars are furnished on the principle that In terms of the rules of
court, particulars of a claim may be supplied on the principle that a litigant is
entitled to know the cause or defence he has to meet; not only to know whether
he should admit or deny the particular allegation. He is entitled to be placed in
the position of being able to decide whether to persist in his claim or defence.
(See Sakunda Energy (Pvt) Ltd & Ors v Mayor Logistics & Another 2018 ZLR 226)

The reasons for requesting for particulars would be to enable the party requesting
particulars to plead, and to prepare for trial. When asking for further particulars,
the applicant/ defendant 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 embarrassments which he alleges he will suffer. See
(Barendse v Rattray 197 TPD 622; Birrell v Fryer 1926 EDL 284; The Citizen (Pvt)
Ltd v Art Printing Works 1957 (3) SA 383 (SR); Time Security (Pvt) Ltd v Castle
Hotel Ltd 1972 (3) SA 112 (RA); Allen v Kinsey 1966 RLR 335 (G); Davidson v
Standard Finance Ltd 1985(1) ZLR 173 (HC) and ALESP Enterprises (Pvt) Ltd v
Natural Stone Export Co (Pvt) Ltd HB-59-04.)

B) Where the plaintiff has proffered vague and embarrassing or repetitive

averments in their summons and declaration.

The remedy available where the plaintiff has vague, embarrassing and repetitive
averments is excepting to the summons. This is provided for in the High Court
Rules, Rule 42(1)(b) which states that as an alternative to pleading to the merits, a
party may within the period allowed for filing any subsequent pleading: — except
to the pleading or to single paragraphs thereof if they embody separate causes of
action or defence as the case may be where the pleading vague and embarrassing
or lacks averments which are necessary to sustain an action or defence, as the
case may be

The remedy of an exception is encapsulated in terms of Rule 42 Sub-rule 1(b). The

said rule provides that as an alternative to pleading to the merits, a party may
within the period allowed for filing any subsequent pleading; except to the
pleading or to single paragraphs thereof if they embody separate causes of action
or defence as the case may be where the pleading is vague and embarrassing or
lacks averments which are necessary to sustain an action or defence, as the case
may be. An exception goes to the root of the entire claim or defence as the case
may be.
The aforementioned rule simply mean that the pleadings should not be vague and
embarrassing. MaCreath J in the case of Trope and Others v South African
Reserve Bank (641/91) 1993 ZASCA 54 discussed the meaning of vague and
embarrassing in the context of exception. He said at p211:

“The ultimate test, however must in my view still be whether the pleading
complies with the general rule enunciated in r 18(4) and the
principle laid down in our existing case law.

An exception to a pleading on the ground that it is vague and embarrassing

involves a two- fold consideration. The first is whether the
pleadings lacks particularity to the extent that it is vague. The second
is whether the vagueness caused embarrassment of such a nature that the
excipient is prejudiced (Quinlan v MacGregor 1960(4) SA 383D at 393E-H).
As to whether there is prejudice, the ability of the excipient to
produce an exception proof plea is not the only, nor indeed the most
important, test – see the remarks of Conradie J in Leviton v Newhaven
Holiday Enterprises CC 1991 (2) SA 297 (c) at 298 G – H. If that
were the only test, the object of pleadings to enable parties to
come to trial prepared to meet each other’s case and not to be taken
by surprise may well be deferred.

Thus it may be possible to plead to particulars of claim which can be read

in any one of a number of ways by simply denying the
allegations made; likewise to a pleading which leaves one guessing
as to its actual meaning. Yet there can be no doubt that such a pleading is
excipiable as being vague and embarrassing – See Parow Land (Pty)
Ltd v Schneider 1952(1)SA. 15 (SWA) at 152 F – G and the authorities
there cited.

It follows that averments in the pleadings which are contradictory and

which are not pleaded in the alternative are patently vague and
embarrassing, one can but be left guessing as to the actual meaning
(if any) conveyed by the pleading”
Initially, in terms of Rule 42 Sub-rule (3), the defendant ought to write a letter of
complaint against the offending paragraphs or statements asking the plaintiff to
correct or remove the offending parts, failure of which you except to the Summons
and declaration. The rule states as follows:

Rule 42(3):

“Before filing an exception to pleading or making a court application to

strike out any portion of a pleading on any grounds, the party complaining
of any pleading shall, within the time allowed for f iling a subsequent
pleading, by written letter to his or her opponent state the nature of his or
her complaint and call upon the other party to remove the cause of the
complaint within twelve days of the complaint.”

Application for Further Particulars.

The defence may apply for further particulars where the vagueness and
embarrassment does not go to the root of the cause of action. Such further
particulars to cure the initial defect must clear the vagueness and ambiguity
formerly created by the declaration. The effect of the further particulars is to cure
any defect, ambiguity or embarrassment (if any) in the summons or declaration.
See (ZFC Limited v Kettex Holdings HH 253-15).

Application for Striking Out

The defendant may resort to an application to strike out in terms of Rule 42 sub-
rule 1(c). According to Green v Latz 1966 RLR 633, all superfluous, vague and
embarrassing material where it does not go to the root of the cause of action or
defence. Any matter which appears to prejudice or embarrasses the other party
may be remedied by striking it out. The purpose of striking out the aforementioned
matters is to ensure that the struck out matter gives clarity to the summons or
declaration so that it properly reflects the case which the defendant has to
answer.
5. What are the mandatory requirements for a valid notice of appearance to

defend? (20)

A defendant is entitled to defend a case before him/her in a civil action. Time is a

requirement for a notice of appearance to defend. According to High Court Rule 20

(2) it is supposed to be delivered to Plaintiff ten days after service of summons on

Defendant. This period applies to ten working days, meaning excluding weekends

and public holidays. An entry of appearance to defend is to be effected by the

Defendant or legal practitioner acting on his behalf and it should be filed at the

Registry so that they know that the Defendant intends to appear to defend his/her

case (Rule 20 (3)). For a Notice of Appearance to Defend to be valid it is supposed

to have a title “Notice of Appearance to Defend'' and Number of Action which is

given at the Registry (file number), it is supposed to clearly notify that the

Defendant has intention to defend, it is supposed to have an address for service

within 10 km of the Registry, business address or even residential address of

Defendant and most importantly a date of entry which is signed. According to Rule

20 (4) it is important to note that if the defendant wants to accept service of

process in any other way, maybe electronic mail, they should state that in

consent. In line with Rule 20 (6) within seven days of the entry of appearance to

defend, a written notice thereof shall be served on the plaintiff or on his or her

legal practitioner where the plaintiff sues by a legal practitioner, at the plaintiff’s

address for service failing which the defendant shall be barred and such notice

shall be in Form No. 7. So if a Defendant fails to enter appearance they are barred.
In the case of Katso v Sithole (2011), the applicant’s notice of appearance was not
good or proper. The defendant failed within 24 hours of entry of appearance to
serve a written notice on the plaintiff or his legal practitioner. This caused the
Defendant to be barred for failure to comply with rules of service when it comes to
Notice of Appearance

Question 6
What are the remedies available to the plaintiff if;
a. the defendant enters a defective notice of appearance to defend.
b. the defendant enters an appearance to defend outside the prescribed dies
induciae.
c. what remedies are available to a defendant who has been barred, who has
filed their notice of appearance to defend outside time?

Answers
a. The court has come to a settlement in the case authority cited in the book
Herbstein & Van Winsen, The Civil Practice of Superior Courts in South Africa 3 rd
edition, 1979 at page 242 that the filing of a defective notice appearance to
defend does not entitle the plaintiff to a default judgement. The proper remedy is
to postpone the matter in order to allow the defendant to serve a proper
appearance to defend to the plaintiff, though, the plaintiff will be required to pay
extra costs.
b. Rule 39(1) of the High Court Rules, 2021 stipulates that a party shall be
entitled to give five days notice of intention to bar to any other party to the action
who has failed to file his or her plea within the time prescribed by the rules and
shall do so by delivering a notice in Form No. 8 at the address for service of the
party in default. In addition, the party which has filed a notice of intention to bar
has to comply with Rule 39(2) which further provides that on expiry of the time
limited by the notice, the party who has served the notice may bar the opposite
party by filing a copy of the notice with the registrar which requires an
endorsement on Form 8 which must be duly be signed by the party who has given
the notice or by his or her legal practitioner. In the case of City of Harare V
Minister of Local Government Rural and Urban Development & V& P
Investment(Pvt) ltd & Deputy William Aitken SC 195/92, it was held that once a
party receives a notice of intention to bar, he should respond by filing the required
pleadings. If they do not respond, then the party concerned should proceed to bar
by filing a copy of notice of intention to bar with the registrar and the copy will be
endorsed as required by Form 8.
c. Rule 39(4) (a)(b) provides that a party who has be barred may make a
chamber application to remove the bar or can make an oral application at the
hearing, if any, of the action or suit concerned and the judge or court may allow
the application. It was held in the case of Grain Marketing Board v Muchero 2008(1)
ZLR (S) that once the party is barred, the matter is treated as unopposed, however
the party so barred can make an application before the court for upliftment or a
chamber application.
Question 7
Who has the responsibility to file a plea?
 The defendant has the responsibility to file a plea. A plea is the defendant’s
answer to the plaintiff’s declaration/particulars of claim.
 The plaintiff may also be responsible for filing of a plea to the defendant’s
claim in reconvention.
Who has the responsibility to file a replication?
 The plaintiff has the responsibility to file a replication. A replication is
necessary where the defendant’s plea raised new facts and or where the
defendant’s plea is one of confession and avoidance.
 The defendant may also be responsible to file a replication to the plaintiff’s
plea to the defendant’s claim in reconvention.

(a) What are the requirements of a valid plea?

 In the case of FPS Ltd v Trident Construction it was stated that, a
defendant must give a fair and clear answer to every point of
substance raised by plaintiff in his declaration or particulars of claim
by frankly admitting or explicitly denying every material matter
alleged against him. The defendant must also clearly and precisely
 set out in the plea all the material facts on which he or she intends
to rely on.
 Rule 37(4) of the High Court Rules 2021 clearly states that the
defendant’s plea shall either admit or deny or confess and avoid all
the material facts alleged in the combined summons or declaration or
state which of the said facts are not and to what extent and shall
clearly and concisely state all material facts upon which he or she
relies on.
 Rule 37(3) of the High Court Rules 2021 demands that the plea
should be filed within 10 days from the date of filing an appearance
to defend.

(b) and in what form is it supposed to be filed?

 The plea shall be in FORM No. 12 and it is filed with the registrar and
a copy is served on the other party to the matter.

(c) What are the types of pleas that are there? Explain each of the requirements
of the types of the pleas that are there

Declinatory plea (in bar)

 The plea is meant to quash or put an end to the proceedings

(1) Plea of res judicata

 Same matter had been decided in another court of competent
jurisdiction
 In Darare and Anor v Chiyangwa the court held that it is trite that a
matter is regarded as res judicata if the following requisites are met
namely that (a) the previous matter was between the same parties or
their privies, (b) the subject matter must have been the same (c) the
matter is found on the same cause of action and (d) the earlier court
must have given a final and definitive judgement on the matter.
 (2) Prescription
 The claim can no longer be brought because of lapse of time
 Governed by the Prescription Act 8:07
 The court will not raise prescription mero motu and this special
plea must be specifically raised by the defendant as held in John
Conradie Trust v The Federation of Kushanda Pre School Trust
and Ors

(3) Lack of Jurisdiction

 The defendant may raise a point that the matter has been brought
in the incorrect court by way of special plea.
 Owen Smith v Owen Smith 1981 ZLR 514

(4) Locus Standi in Judicio

 In Makarudze & Anor v Bungu & Ors the court pointed out that
locus standi in judicio refers to ones right, ability or capacity to
bring legal proceedings in a court of law. One must justify such
right by showing that one has direct and substantial interest in the
outcome of the litigation. Such an interest is a legal in the subject
matter of the action which could be prejudicially affected by the
judgement of the court

Dilatory Plea
 The plea is meant to delay the proceedings until some temporary
bar to the claim has been removed.

(5) Lis Alibi Pendens

 The plea is raised by the defendant, that the same matter is being
determined by another respective court with competent
jurisdiction
 In the case of ZIMASCO (Pvt) Ltd v Marikano the court held that
for this plea to succeed the respondent had to prove the following
 (a) that the action was already pending between the parties (b)
the plaintiff had brought another action against the same
defendant (c) the action was based on the same cause of action
and in respect of the same subject matter.

(6) Arbitration Clause

 It does not extinguish the plaintiff’s cause of action but delays it for
on the grounds that the parties had agreed to deal with their issues
through Arbitration proceedings.
 In Shell Zimbabwe (Pvt) Ltd v ZIMSA (Pvt) and Anor the court held
that where one of the parties to a dispute subject to an arbitration
clause requests to go to arbitration, the court has no option but to
stay the proceedings and refer the matter to arbitration unless the
court finds that the arbitration clause is null and void or inoperative
or incapable of performance.