Sundaymail Editor
Legal Matters with Arthur Marara
Are you thinking of divorcing? Your spouse is not within the jurisdiction of the Court (that is in Zimbabwe)? Close to 1 500 people filed for divorce in 2021. I do not support divorces personally, but sometimes, we also need to accept the fact that some marriages have irretrievably gone down, hence divorce is the only practical remedy.
It also happens that some people are no longer staying together and the other party may have even moved outside the country, and you no longer know of their whereabouts. Some people will even get into new relationships outside Zimbabwe without having wound up their affairs. This is not unusual as some breakups are really messy.
The question is; are you precluded from filing process when the other party is outside Zimbabwe, and you do not know their whereabouts? The answer is no! The rules have a remedy that you can resort in such an instance.
You can file process against someone who is not in Zimbabwe even if their whereabouts are not known. There is a procedure for someone whose whereabouts are known, but they are not within the jurisdiction of the Court. The principle is that once a person has been cited to proceedings, they have to be served with the same process so that they can be heard as well.
This is founded in the rules of natural justice in particular, the “audi alteram partem” principle (which literally means, “hear the other side”).
Edictal Citation
Edictal citation is ordered when a defendant is or is believed to be outside Zimbabwe and the exact whereabouts of the defendant are unknown. The High Court rules provide that no process or document whereby proceedings are instituted shall be served outside Zimbabwe, unless leave or permission is granted by a Court.
Leave is obtainable through a Court application or a Chamber application in terms of Rule 17(2) of the High Court Rules. The application shall set out clearly, and concisely—
(a) the nature and extent of his or her claim; — what is your claim about. In other what do you want against the other party.
(b) the grounds upon which the claim is based; — This requires you to provide justification for the claim that you are bringing to the Court.
(c) the grounds upon which the court has jurisdiction to entertain the claim; – before the Court can grant your leave to sue a person outside its jurisdiction you need to satisfy it that it has the capacity to actually entertain the matter otherwise, why grant leave when the Court has no jurisdiction to deal with the matter in the first place.
(d) the manner of service which the court or judge is asked to authorise; and — There are many types of service which the Court can order, so you need to be specific about the type of service you want to proceed in terms of. The duty of the Court is not to formulate cases for parties hence the need for clarity in the presentation of your claim.
(e) if such manner of service be other than personal service, the last-known whereabouts of the person to be served and the inquiries made to ascertain his or her present whereabouts. — I made the point earlier as to the types of service available. With this leg, you need to advise the Court the last known address
The application will be placed before the Court or judge who has discretion to make such order as to the manner of service as to the court or judge seems fit and shall further order the time within which notice of intention to defend is to be given or any other step that is to be taken by the person to be served.
Service by publication
If you have checked in The Herald or The Sunday Mail, there is an area that contains Legal Notices. You usually see different types of notices, common ones are Change of Name, Liquor Licences, and some notices given by applicants intending to change use of land. This is a form of service of Notice. There are instances where service will be done through publication. What this entails is that a plaintiff is given leave to publish the document or documents in a newspaper of wide and visible circulation.
When such leave is granted, it shall not be necessary to publish the document or documents in an extensive form but in a short form thereof to be approved and signed by the registrar. Any process or document in such case shall be served in such a manner and subject to such conditions as the court or judge in each particular case directs.
The Magistrates Court Rules also have similar provision for Edictal Citation under Order 22R15. The provisions of the rules on what needs to be complied with are peremptory meaning any application that does not satisfy the requirements of the rules will be invalid. The processes stated above may not necessarily be simple if you are an ordinary person, you need to consider retaining the services of an attorney should you want to proceed with an application for edictal citation.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara
@gmail.com
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