Online Reporter
Trust Maanda
Legal Position
EVERY court in Zimbabwe has got its rules of procedure.
The rules state the time within which certain documents should be filed, in the course of the litigation proceedings.
The rules vary from court to court.
There are, however, similarities of the rules in most of the courts. These rules can state what a paper filed with the particular court should contain or look like. Most of the court’s rules have prescribed forms that must be conformed to when a particular document is filed.
For example, a summons may have a stipulated form which it should take. The rules normally provide a sample of the form the document must take.
If it is a court application, its form is provided for in the rules together with the form that the opposing party must file if he or she opposes the matter.
The rules prescribe the form and the content that the document must contain. This helps the papers filed to be uniform in every case. It will be difficult for the courts to deal with papers that come in different forms and shapes.
The court must know what document is before it. If it is a summons, it must be clear from the document. If it is an application, that also must be clear from the document itself. If there was no uniformity, then anything could be filed under guise of court documents.
Where the rules prescribe a form and content, a deviation from that will be penalised.
Depending on the departure from the rule, a case may be lost. A case may be dismissed and thrown out of court even though on the substance the case had merits.
The rules also determine the timelines of filing of court documents. For example, they state the days within which a defence must be filed from the date of receiving the summons or opposing papers should be filed from date of receiving service of the court application.
If you do not file papers in response within the stipulated period, the other party can obtain judgment as the matter is deemed unopposed or undefended.
Where you find yourself in breach of a rule of court, you must speedily apply to get the court’s permission to file out of time. That application is normally referred to as application for condonation.
Where condonation is granted, it is an indulgence that the court gives you in its discretion for you to file your papers after departing from the rules.
It may be an extension of time within which you must file the relevant paper or some permission to depart from the rules.
This departure from the rules can be condoned if the breach is regarded as not fatal to the case of the party in breach. Fatal here refers to an omission or commission which cannot be remedied and whose effects renders the case not able to continue.
A fatal defect is one which cannot be repaired but for the case to be thrown out, leaving the defaulting party with an option to launch a fresh bid if such can be an available avenue. If the defect can be remedied or departure can be condoned a party in breach will need to apply for condonation while explaining how he or she had failed to comply with the rule in question.
In the Director of Civil Aviation case supra at p 358B-C GUBBAY CJ cited with approval from Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) where at p799D-E MULLER JA said:
“Where there has been a flagrant breach of the Rules of this Court in more than one respect and where in addition there is no reasonable explanation for some periods of delay and indeed, in respect of other periods of delay, no explanation at all, the application should not be granted whatever the prospects of success may be.”
In deciding whether it can condone the breach, the court considers a lot of factors, including the question whether there are good prospects of the case on the merits.
The courts consider among other things, the rule breached, the delay the breaching party is guilty of in not seeking to remedy the breach, the reasonableness of the explanation and prospects of the case on the merits. The court will consider if there was real prejudice suffered by the other party and if that prejudice cannot be cured by an order of costs against the party in breach.
It is essential before you embark on any litigation for you to acquaint yourself with what the rules of the court you want to approach say about filing of particular documents.
You may have a good case but lose it a technicality.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646 or [email protected].
