THE MAGISTRATES COURT
Officers of the Court
o Magistrate
o Messenger of Court
o Clerk of Court
o Assessors
o Chief Magistrate
o Interpreters
THE JURISDICTION OF THE MAGISTRATES COURT
o The Magistrates Court is a creature of a “statute”. This means it does not have
jurisdiction in any case where such jurisdiction is not expressly conferred on
it by law, specifically statute. See Hatfield Town Council Board v Mynfred 1962
RN 799.
o See also Mateure v Chidumwa HB 156/16 at p.4 where the court stated that
“The Magistrates Court is a creature of statute. It operates in terms of the
powers conferred upon it by the legislature. The Magistrates Court cannot
arrogate to itself powers that are not conferred upon it by statute.”
o The Magistrates Court has jurisdiction in general and customary law cases
subject to the geographical, monetary and subject matter of a case limitations.
o The Jurisdiction of the Magistrates Court involves granting interdicts. In terms
of s12 of the Magistrates Court Act, it can grant mandatory, or compelling
order or restitutionary interdict. See Francis v Roberts 1973 (1) SA 507.
o A Magistrate Court’s jurisdiction is premised on three aspects; territorial,
monetary and cause of action. These aspects demarcate and limit the
jurisdiction of the Magistrates Court as will be discussed.
JURISDICTION BASED ON TERRITORY/GEOGRAPHICAL LOCATION
o The Magistrates Court has jurisdiction territorially over the following persons:
a. Any person who resides, carries on business or is employed within the
province.
b. Any partnership whose business premises are situated in the province or
if any member of the partnership resides in the jurisdiction of the court.
c. On any person who institutes proceedings in the court and any other
persons affected by the proceedings instituted in the Magistrates Court.
d. Any person if the cause of action arose wholly within the province. See
also Ex parte Ministry of Native Affairs 1941 AD 53. See s11(1)(a) of the
Magistrates Court Act [MCA].
JURISDICTION BASED ON CAUSE OF ACTION
o The cause of action is a set of facts that forms the core of one’s claim and
enable or justify someone to institute proceedings against another normally
called a defendant. Or the facts that are necessary or material for the plaintiff
to prove its claim or support her/his rights. See the case of Mackenzie v
Farmers Co-operative Meat Industries 1922 AD 16; Cook v Gill LR 8 CP 107.
o The Magistrates Court has jurisdiction over the following causes of action:
o a. Claims based on a liquid document- Eg bill of exchange, promissory note,
bond, written acknowledgement of debt provided it does not exceed the
prescribed amount in terms of the rules.
What is a claim for a debt or liquidated demand?
o This is a claim for either a specific amount of money or one that is capable of
speedy and prompt assessment, the claim of a specific thing. It is a claim of a
debt or liquidated demand because it is a fixed amount of money and certain.
o The following are examples of a debt or liquid claims:
i. See Fred & Anor v Keelan 1951 SR 7- A claim for an order declaring
property specially hypothecated in a mortgage bond to be executable (sold
in execution). The claim was held to be a claim for a liquidated demand.
ii. See also Mohr v Krier 1953 (3) SA 600 - The plaintiff was claiming several
things- the sum of 1300 pounds being the balance of the amount due in
terms of a deed of dissolution of partnership entered into between the
plaintiff and the defendant.
iii. In Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498, a claim for money
stolen by the defendant from the plaintiff was held to be a claim for debt
or liquidated demand but the claim for the value of goods stolen by the
defendant was held to be unliquidated. See International Hardwork
Cooperation 1971 (1) SA 404 Reached the same decision that the claim for
stolen money is a liquidated demand and a debt. In Standwin Investment
Pvt (Ltd) v Helfer 1961 (4) SA 470 a claim for the value of goods as an
alternative to the return of the goods was held to be a claim for a debt or
liquidated demand. The case involved a claim for the return of a truck
failing of which payment of 500 pounds which was the value of the truck.
An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956
RN 148.
o In Fartis Engineering Co. Ltd v Vendick Spares Ltd 1962 SA (2) 736 TPD a
claim for work done and material supplied was held to be a claim for a
debt or liquidated demand.
o In Belingwe Stores (Pvt) Ltd v Minyembe 1972 (4) SA 463 a claim for the
value of shortfall of stock as per a written undertaking by the defendant
was held to be a claim for a debt or liquidated demand. The defendant was
a storekeeper for the plaintiff and signed an undertaking to pay if there
was a shortfall.
o In Brooks & Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA a claim for
confirmation of cancellation of an agreement of sale of certain immovable
property and ejectment of the defendant from property was held to be a
debt or liquidated demand.
o Atlas Assurance Co. Ltd v Goodman 1955 SR 328: a claim based on a foreign
judgement held to be a claim for a debt or liquidated demand.
o Morris v Stern 1969 RLR 427: A claim for ejectment was held to be a claim
for a debt or liquidated demand.
o In Dube v Sengwayo HHC 110/91: a claim for holding over damages in
respect of ejectment proceedings was held to be a claim for a debt or
liquidated demand because the damages were easily ascertainable, by
simply looking at rental value of the property and also the period of which
the lessee is an unlawful occupation.
o Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 1192: claim for the
refund of $14 700 due to the defendant’s failure to supply 60 000 bricks.
This claim was held to be for damages readily ascertainable and, therefore,
liquidated.
o See SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2) SA 131. The
plaintiff applied for default judgement on an endorsed summons in which he
claimed:
(1) a statement of account duly supported by vouchers of all premiums
received by the defendant
(2) the rebate of such account (an assessment of an item so as to come to a
determination of an amount owing).
(3) payment of money owing to the account.
(4) order directing defendant to disclose all forms of policies in his
possession issued by the plaintiff and delivered to the defendant.
Held: All of them were claims for a debt or liquidated demand except a claim
of whatever was found owing under the account because it was not fixed.
o See also Midsec (Pvt) Ltd v Ors v Standage HB 64/94. The claim was for $100
000 payment based on a document which had been signed by the defendant
in which she had admitted that she had been fiddling with the books and
stated as follows on the amount owed “I would not know the exact amount
that I would have taken but Mr Rumbold has said that if it is close on to 100
000 which could be about right”. The claim was held to be unliquidated
because the amount owing was not ascertained but merely estimated.
b. In claims for delivery or transfer of movable or immovable property if the
value does not exceed the monetary limit. This is despite the fact that there
may be a claim for the cancellation of any agreement relating to such
property.
c. In ejectment actions against the occupier of any house or land or premises
provided in relationship to the right of occupation the value of the right of
occupation does not exceed the monetary jurisdiction. The value of
occupation is obtainable by comparing the rentals of comparable premises
– if there is a difference there will multiply it over unexpired part of the
lease. ADD cost of moving. See Uguahart v Bruce 1974 (1) SA 350. Langham
Court Property v Mavromaty 1954 (3) SA 742 TPD
d. Claims for validity, interpretation, and effect of oral wills made in terms of
s11 of the Wills Act provided: 1. the testator of the will concerned was
resident within the province when made the will or when he died or 2. The
testator of the will was born within the province 3. The majority by number
or value, of the beneficiaries under the will resided within the province
when the testator died 4. The will was made within the province 5. If the
will award an immovable property, such property ought to be situated
within the province.
e. In all actions not stated herein provided they do not exceed the monetary
value of the court provided the defendant consent if not resident in the
province.
f. Where the defendant consented in writing provided the statute allows the
court to preside over such a matter.
g. Where there is a written agreement by the Plaintiff and the defendant to
have the matter heard by the court.
h. The court has jurisdiction on two or more combined claims based on
different cause of action provided the court can try or determine each and
every claim independently and distinctly similarly if any of the claim has
been separately brought before the court. Splitting the claim is not allowed.
However, abandonment of part of a claim is allowed.
i. Claims of confirmation of an interdict or arrest granted pendete lite even
joined in summons for another different relief. Each claim will be then
determined distinctly.
j. In claims for the balance of an account. However, the court may inquire
into and take evidence if necessary of the whole account even though such
account contains items and transactions exceeding the amount of
jurisdiction.
k. Claims for arrest tamquam suspectus de fuga - Arrest tamquam suspectus
de fuga is ordered when a creditor on reasonable grounds suspects that a
debtor, whose liability has not yet been determined is about to flee from
the jurisdiction of the court to evade payment. No order of arrest tamquam
suspectus de fuga shall be made unless the cause of action appears in
amount exclusive of costs to be within the monetary limits of the court,
the applicant appears to have no security for the debt as set in the rules
and if the defendant is about to remove himself from Zimbabwe. See s12
of the MCA. In Malachi v Cape Dance Academy Int. (Pty) Ltd [2010]
ZAWCHC 1 the SA Western Cape High Court found the common law which
authorises arrests tamquam suspectus de fuga as well as s 30 (3) of the
Magistrates Court Act inconsistent with the constitution and invalid.
l. Claims for interdicts, attachments and mandament van spolie -
Confirmations by the court of any attachment or interdict in the judgment
in action shall operate as an extension of the attachment or interdict until
execution or further court order of the court. See s 12 of the MCA.
m. Claims for attachments to found or confirm jurisdictions - A court may
order attachment of a person or property to found or confirm jurisdiction
against a peregrinus provided the court has jurisdiction over the claim, ie.
having looked at jurisdiction, cause of action and also monetary value.
This excludes the costs. See s 13 of the MCA.
n. In cases of adultery claims brought with its monetary jurisdiction it has
powers to establish the fact of the marriage. S 14(1)(i)(a) of the MCA.
o. In cases of claims for maintenance or any inquiry under the Maintenance
Act. S 14(1)(i) (b) of the MCA.
p. In constitutional matters as a referral court. It may refer valid
constitutional matters to the Constitutional Court on application by a
party. See s 175 (4) of the Constitution of Zimbabwe No 20 of 2013.
q. In commercial disputes provided the value of the claim does not exceed its
monetary limit.
JURISDICTION BASED ON MONETARY LIMIT
o See the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules, 2023, SI
45 of 2023.
o The current monetary limit of claims in the Magistrates Court various and is
up to USD100 000. There are also monetary limits depending on the nature of
the claim e.g cases found on liquid documents the monetary limit is USD50
000. Interest and costs shall not be considered for the purpose of determining
jurisdiction. See s 11(g) of MCA. Further, the plaintiffs are not allowed to split
one claim into various summons to bring it within its jurisdiction. See s 11(j)
of MCA. However, the plaintiff is allowed to abandon some claim in order to
bring it within the jurisdiction of a Magistrates Court. See s 11(h) of MCA. Once
abandoned the claim is extinguished. If the claim is upheld in part then
abandonment first takes effect against that part which is not upheld. However,
a claim exceeding the jurisdiction of the Magistrates Court may still fall under
the Magistrates Court if the Plaintiff deducts the amount being consented to
or admitted as liable to whether the claim is a liquid or unliquidated claim. See
s 11(i) of MCA.
Nature of matter Monetary Jurisdiction
o Cases founded on liquid documents - US$50 000.00
o Actions for delivery or transfer of movable
or immovable property: maximum value of property- US$100 000.00
o Actions of ejectment: maximum value of right of
occupation - US$100 000.00
o Other actions: maximum value of claim or matter
in dispute – US$50 000.00
o Order of arrest tamquam suspectus de fuga:
minimum amount of cause of action – US$1000.00
o Order of arrest tamquam suspectus de fuga:
minimum amount by which applicant’s security
must fall short of amount of debt - US$50.00
o Order of attachment which applicant’s security
must fall short of amount of debt - US$50.00
o Order of attachment of personal property to found
or confirm jurisdiction: minimum amount of
claim or value of matter in dispute - US$1000.00
o Order for rendering of account: maximum
amount of claim - US$50 000.00
o Order for delivery or transfer of property,
movable or immovable maximum value of property - US$50 000.00
COUNTERCLAIMS THAT EXCEEDS JURISDICTIONS
o Where a defendant’s plea or answer to plaintiff’s claim amounts to a
counterclaim and the counterclaim exceeds the jurisdiction of the Magistrates
Court, the counterclaim shall not be dismissed. The court if satisfied that the
counterclaim prima facie has reasonable prospects may make an order for a
stay of action for a reasonable time to enable the defendant to institute
proceedings in a competent court. The plaintiff may still proceed to become a
defendant and file a counterclaim in the competent court. The issue of costs
incurred in the Magistrates Court will then be dealt with by the competent
court. See s 15 of the MCA.
o If the defendant does not act within the window granted by the court for him
to file an action in the court of competent jurisdiction the following may
happen on application by plaintiff or defendant:
a. stay the action for a further reasonable period
b. dismiss the counterclaim- whether the defendant has or not reduced the
amount to the limit of the jurisdiction of the court, whether the counterclaim
is withdrawn.
In the event of abandonment of the counterclaim or the competent court has
granted absolution from the instance the Magistrates Court upon application
may proceed to dismiss the counterclaim and determine the plaintiff’s claim.
CIRCUMSTANCES WHERE THE MAGISTRATES COURT HAS NO
JURISDICTION
o The Magistrates Court has no jurisdiction under the following circumstances:
a. in dissolution of a marriage solemnised in terms of Marriages Act [Chapter
5:17]
b. In dissolution of any marriage save for the marriage solemnised in terms
of customary law.
c. separation from bed and board or of goods of assets of spouses of a
marriage solemnized in terms of the Marriages Act
d. A declaration of nullity in relation to a marriage solemnized in terms of
Marriages Act [Chapter 05:17] other than the marriage under customary
law.
e. The validity or interpretation of a written will or any other testamentary
document in question
f. The status of a person in respect of mental capacity is sought to be
affected.
g. An order for specific performance without an alternative for payment of
damages.
h. The rendering of an account in respect of which the claim does exceed the
monetary limit of the court
i. The delivery or transfer of property movable or immovable exceeding the
monetary jurisdiction of the court.
j. An order for a decree of perpetual silence.
k. Provisional sentence
l. Where the order for a declaratur is sought as to existing rights, future or
contingent right or obligation without a consequential relief of such a
declaration: See also Mateure v Chidumwa HB 156/16 where the court
ruled that the Magistrates Court has no jurisdiction to determine an
application for a declaratory order and that the right is vested in the High
Court in terms of s 14 of the High Court Act.
m. In interpreting oral wills, or establishing validity of a will made in terms of
s 11 of the Wills Act if none of the factors in section 14(2) of the
Magistrates Court exist.
n. In counterclaims that exceed the monetary jurisdiction of the Magistrates
Court.
See s 14(1) and (2) of the Magistrates Court Act.
TYPES OF PROCEDURES IN THE MAGISTRATES COURT
o There are two basic forms of proceedings which may be used for instituting
proceedings in the civil courts.
(i) Action – summons and
(ii) Application - by way of notice of application and affidavit of evidence.
o There are circumstances where application procedures are not used. For
Example:
a. Where the statute specifically provides for so e.g in matrimonial matters;
claims for unliquidated damages – it means they have not yet been
quantified by the court and are difficult to ascertain. See Room Hire Co. v
Jeppe Street Mansions 1949 (3) SA 1155, Civil imprisonment etc.
b. There are also cases where it is at the discretion of the person instituting
proceedings to go by way of application or action and what should
influence a party would be whether or not there are material disputes of
facts. If there is a material dispute of fact then don’t use application
proceedings. Room Hire Co. v Jeppe Street Mansion (supra). This was an
appeal from the decision of the WLD declaring the tenancy by the
appellant of certain premises belonging to the defendant to be null and
void under the provisions of s 8 of Ordinance 46 of 1903. The grounds
on which the tenancy was declared null and void were that the premises
were allegedly being used as a brothel. The court had also ordered the
ejectment of the appellant on the premises. The applicant had resisted
the application to eject him on three grounds: (i) that there was a material
dispute of facts which could not be resolved on affidavit evidence. (ii) the
evidence adduced in the affidavit was insufficient to establish the alleged
improper use of the premises. (iii) There had been an unqualified
acceptance of the rent by the applicant/landlord. It was argued that was
a waiver of any breach of tenancy. Held: On the issue of waiver of breach
the court held that on the facts the respondent had not been aware of the
payment and had tendered a return of payment when he became aware
of it. It was stated the lease was automatically terminated when he
realised that the premises were being used as a brothel. Held: On material
dispute of fact, the court held that for the defendant to allege that there
was a material dispute of fact he must establish a real issue of fact which
cannot be satisfactorily determined without the aid of oral evidence. He
must not make a bare denial or merely allege a dispute. The court
concluded that the real dispute of fact had been shown and that the court
a quo should have heard oral evidence on the issue in terms of the rules.
The matter was referred back to court a quo for the proper exercise of
discretion to hear oral evidence.
o “A material dispute of fact arises when such material facts put by the
applicant are disputed and traversed by the respondent in such a manner
as to leave the court with no ready answer to the dispute between the
parties in the absence of further evidence” – Makarau J in Supa Plant
Investments (Pvt) Ltd v Edgar Chidavaenzi HH 92/09 at p.4.
o See also Jirira v ZIMCOR Trustees Ltd & Anor 2010 (1) ZLR 375 (H) at 378
where it was stated: “There is no way of ranking affidavits in terms of
veracity. One simply cannot find one affidavit more credible than the
other.”
o With regard to dispute of fact it has been stated in the case law that the
court must not hesitate to decide an issue on affidavit evidence merely
because it may be difficult to do so. It should adopt a robust view and
endeavour to resolve the dispute without the hearing of oral evidence if
this can be done without doing an injustice to either party. See also
Soffiantini v Mould 1956 (4) SA 150- The appellant was the owner and
lessor of certain premises and the respondent was the lessee. The
appellant was interfering with the respondent’s occupation of the
premises. The respondent applied for and was granted an interdict
restraining the appellant from interfering with his occupation of the
premises. The appellant appealed against the granting of interdict in that:
i. there was a genuine dispute of fact which could not be resolved on
affidavit evidence. ii. The Judge a quo should have directed oral evidence
to be heard. Held: It is necessary to make a robust, common-sense
approach to a dispute on motion (application proceedings) as otherwise
the effective functioning of the court can be hamstrung and circumvented
by the most simple and blatant stratagem. The court must not hesitate to
decide an issue of fact on affidavit merely because it may be difficult to
do so. Justice can be defeated or seriously impeded and delayed by an
over-fastidious pproach to a dispute raised in affidavits. See also Joosab
& Ors v Shah 1972 (4) SA 298.
c. Application procedure is used normally in interlocutory proceedings i.e
for interim reliefs, interdicts pendete lite
d. Also used where the matter is urgent.
o What about if there are material facts that cannot be resolved on paper?
o If the court discovered that there is a material dispute of fact and cannot be
resolved on affidavit, it has 3 options:
i. It can dismiss the application – this will be the case where the applicant
when mounting the application should have realised that there were
material disputes of facts which cannot be resolved on affidavit evidence.
ii. The court can order the parties to go to trial.
iii. The court can hear oral evidence on the issue in dispute.
Stages of an Action
o • Issuing of summons
o • Service of summons
o • Appearance to defend (notice of intention to defend)
o • Plea
o • Reply (replication)
o • Close of pleadings
o • Discovery of Documents
o • Pre-trial conference
o • Set down for trial
o • Trial
o • Judgment
Stages of an Application
o • Notice of application and founding (or supporting) affidavit
o • Service of notice of application and supporting affidavit
o • Notice of opposition and opposing affidavit
o • Replying (or answering) affidavit
o • Heads of argument
o . Set down
o • Hearing
o • Judgment
o Common terms in the Magistrates Court
o Plaintiff –
o Defendant –
o Applicant
o Appellant
o Respondent
o Absolution from the instance
o Onus or burden of proof
o Proof on a balance or preponderance of probabilities
o Adversarial system
o Postponed sine die
o Matter removed from the roll
o Struck off the roll
o Dismissed
o Judgment for Plaintiff
o Judgment for the defendant
o Costs on a legal practitioner or attorney and client scale (punitive or costs on
a higher scale)
o Costs on the ordinary scale (party and party costs)
o Costs de bonis propriis
WHAT IS A DEMAND?
o Is a formal notice usually written by a legal practitioner demanding that the
person, company or other entity to whom the letter is addressed, perform a
legal obligation or requirement such as, inter alia, rectifying an identified
problem, paying a debt, alleging defamation and demanding an apology and/or
perform in terms of a contract.
o It may be drafted and sent by the plaintiff or applicant themselves.
o It is normally the first step in a legal process but it is not always a compulsory
first step.
o There are instances where a demand is exercised and these are:
o a. Where you want to safeguard the costs of summons. If the plaintiff does
not make a demand, serve a summons and upon receipt of the summons the
debtor pays, the plaintiff will not be entitled to the costs of the summons. The
only exception is where the date of performance of an obligation is fixed in
terms of the agreement.
o b. Where a demand is required to complete the cause of action. Examples are
by statute i.e the State Liabilities Act – 60 days’ notice is required when suing
the state.
o c. By agreement between the parties
o d. Where a demand is required to place the debtor in mora.
Pleading of a Demand
o It is necessary if demand was necessary to complete the cause of action.
The form and content of the demand.
o It need not be in writing unless stipulated by statute or by agreement between
the parties. It can be by the creditor himself or by someone representing the
creditor i.e Legal Practitioner. The demand must give sufficient detail to enable
the debtor to know the basis upon which the creditor is making his or her
claim. The demand must give reasonable time for the debtor to comply.
Reasonable time depends on the circumstances. Usually, 7 days is given to pay.
It is not necessary to threaten legal action.
