Contributed By Muvingi & Mugadza Legal Practitioners
The legal system in Zimbabwe is largely based on Statute Law, that is law enacted by the legislature, and common law derived from the Roman and Roman-Dutch law with some English law graftings. Customary law is also part of the Zimbabwean law and it is based on the general custom of the people. The application of customary law to a person is, however, by choice.
The court system follows an adversarial model where the judge is merely an umpire between two adversaries. The legal process is conducted primarily through written submissions where parties exchange pleadings up to the date of hearing where they are allowed to make oral arguments to supplement their written submissions.
The courts’ structure in Zimbabwe is divided into Superior Courts, specialised courts, lower courts and community courts as follows:
These are completely governed in terms of customary law.
Court filings and court proceedings are generally open to the public. Anyone can access court records from any court registry. However, in criminal matters involving minor children below 12 years of age, particularly in rape matters, proceedings are conducted as in camera.
This is where proceedings are conducted before a judge with only the State Counsel and Defense Counsel being allowed in the courtroom and the minor child is asked questions through the interpreter whilst they are in another court room.
Certain proceedings and information may be kept confidential in circumstances where the evidence to be given compromises national security.
Only registered legal practitioners with a practising certificate issued by the Law Society of Zimbabwe for that current year are allowed to appear in the courts of Zimbabwe. Legal practitioners in the Zimbabwean Public Service also have the right of audience since they are not required to obtain practising certificates.
Members of trade unions/workers unions have right of audience in the Labour Court to represent employees. Foreign lawyers are allowed to appear in the Zimbabwean Courts upon approval by the Minister of Justice, Legal and Parliamentary Affairs, on application.
Litigation funding by third-party funders is allowed in Zimbabwe but there is no law that regulates third-party litigation funding.
There is no statute that prescribes the types of lawsuits for third-party funding but, generally, matters of public interest, particularly those involving violation of human rights, are available for third-party funding.
Third-party funding is available for both parties in a lawsuit.
There are no minimum or maximum limits for third-party funding in Zimbabwe.
The costs will depend on what the parties have agreed.
Contingency fee arrangements are permitted in Zimbabwe. They are regulated in terms of the Legal Practitioners (Contingency Fee Agreements) Regulations, 2014. Contingency fee agreements are agreements between an attorney and their client to the effect that the attorney will perform work on behalf of the client for no charge on the basis that the client’s matter has prospects of success. Under this agreement, the attorney gets their legal fees from the money recovered on behalf of the client.
The law requires such agreements to be in writing and signed by both the legal practitioner and client. The agreement may also be subject to review by the Law Society of Zimbabwe.
There are no time limits for obtaining third-party funding.
There is generally no requirement for delivering a letter of demand prior to instituting court proceedings in Zimbabwe. However, for proceedings in the Small Claims Court, a letter of demand is a prerequisite and a party will not be allowed to institute proceedings without proof of delivery of such letter of demand.
Statutes of limitations in Zimbabwe are generally governed by the Prescription Act Chapter 8:11. It provides that the period within which a person can claim an ordinary debt is three (3) years.
What determines the jurisdiction of the Zimbabwean courts is the defendant’s residence. If the defendant is resident in Zimbabwe, then the courts will have jurisdiction to hear the matter.
The courts in Zimbabwe also have jurisdiction over foreigners (persons not resident in Zimbabwe) where the cause of action arose in Zimbabwe. The plaintiff will, however, be required to give security to the court through attachment of the foreigner’s property or causing their arrest.
The courts will also have jurisdiction in matters where the cause of action has arisen in Zimbabwe.
In Zimbabwe, proceedings are instituted in two ways:
The Sheriff (for superior courts) and the Messenger of Court (for lower courts) are responsible for service of all court processes. A party requiring service of any process may approach the above-mentioned officers for service. Service of process may be done in the following ways:
The rules of court, however, require that summonses, notices of set down, writs of execution and court orders be served by the Sheriff or Messenger of Court. Any other documents may be served by the parties themselves.
Substituted service (which is service by means other than those provided for in terms of the rules of court), for example through advertisement in a newspaper circulating in their country, can be made in circumstances where the particular address of the party is unknown.
A party can be sued outside Zimbabwe in circumstances where the cause of action (subject matter of the dispute) arose in Zimbabwe. If proceedings are instituted in the Zimbabwean courts, an application is made to the court for edictal citation (service outside Zimbabwe) clearly detailing the manner in which service should be made. The proceedings can then be served to the party outside jurisdiction in terms of the order of court.
If a defendant does not respond to a lawsuit within the time stipulated by the rules of court, or fails to attend a court hearing, judgment may be entered against them in default if the court is satisfied that they were duly served with the proceedings.
An application can be made to the court for judgment in default of the defendant. The applicant would be required to attach proof of service of the pleadings or court process.
Class actions are permitted in Zimbabwe. These are proceedings instituted by a representative on behalf of a group or class of persons. Class Actions in Zimbabwe are governed in terms of the Class Actions Act [Chapter 8:17].
In Zimbabwe, legal practitioners are required to render a statement of account to clients for any monies deposited with the legal practitioner. There is no requirement to provide clients with a cost estimate before taking instructions. Legal practitioners are, however, required to have a mandate agreement as regards the scope of work to be done.
A litigant can make an interim application before trial or hearing where they are of the view that their rights may be affected before the matter is set down for trial or hearing. The parties can obtain relief from the court in such circumstances.
In Zimbabwe, a party can apply for early judgment on some of the issues in dispute where such issues are capable of disposing of the matter without proceeding to trial or hearing; for example, lack of jurisdiction.
A party can also apply for another party’s case to be struck off for non-compliance with the rules of court. Such applications should be done within ten (10) days of entering appearance to defend the action.
Special Plea - a party can raise a special plea, which is a point of law capable of disposing the matter without going to trial; for example, that the claim is prescribed, lack of jurisdiction, lack of locus standi or that the same matter between the same parties was finalised by a competent court in Zimbabwe or that the same matter is pending before the courts.
Exception - a party can except a claim where the summons are vague and embarrassing to an extent that they do not disclose a cause of action.
Summary judgment - a party can make an application for summary judgment where they believe that the other party has no defence to the claim and they have just entered an appearance to defend the claim to buy time.
Consent to judgment - a party can consent to judgment where they are not opposed to the other party’s claim and are willing to settle the claim.
In Zimbabwe, any interested party in a matter may be joined to the case if they can show that they have direct and substantial interest in the subject matter of the litigation and may be adversely affected by the judgment of court. The joinder is done through an application to the court by either party to the suit or by the interested party who wishes to be joined to the proceedings.
Security for costs are a requirement in terms of the Zimbabwean law with regard to appeals. It is mandatory to offer security costs when filing an appeal and these costs are deposited with the registrar.
Security is also required in circumstances where the defendant does not reside within the jurisdiction of Zimbabwean Courts. An application can be made for the attachment of the defendant’s property or their arrest to confirm jurisdiction of the court.
The courts can award costs to a successful party in respect of interim applications or may direct that the issue of costs for the interim application will be dealt with in the main matter. The award of costs is generally at the discretion of the court.
The general procedure for an application is that the other party is given ten days after service of the application, within which to file their response to the application. The applicant will be required to file their answering affidavit within ten days of receipt of the response and another ten days after filing the answering affidavit, to file heads of argument.
The respondent will be required to file their heads of argument within ten days of receipt of the applicant's heads of argument after which the matter can be set down on the opposed roll and parties will be notified of the date of the hearing depending on the court’s calendar.
A party can file an urgent application if they want their application to be dealt with on an urgent basis but they have to prove that the matter cannot wait because there is danger of imminent irreparable harm if the matter has to follow the ordinary roll.
The procedure for discovery of documents to be used during trial is provided for in terms of the rules of court in Zimbabwe. A party can be given notice to make discovery of documents through an affidavit which is filed with the court. In that case they will be required to disclose in writing the documents in their possession which they intend to rely on.
The rules of court require parties to file, with the court, bundles of documents which they intend to use at trial, and these may include witness statements. A party may request to inspect the original documents in relation to the bundle of documents that would have been filed. Each party will bear its own costs of preparing the bundle of documents.
It is possible to obtain discovery from a third party who is not party to the proceedings but they will have to appear in court as a witness for cross-examination on the discovered documents or information.
A third party may be summoned to appear in court to give evidence. In that case a subpoena may be issued and failure to attend court constitutes contempt of court and a warrant of arrest may be issued against the witness.
The general approach to discovery in Zimbabwe is that a party may produce any document in their possession which may assist the resolution of the dispute. The person producing the document must be able to speak positively to the contents of the documents discovered.
A party, however, may not discover documents which are privileged or contain privileged information.
Generally, evidence is developed through compiling a bundle of documents intended to be used at trial as well as oral evidence from witnesses who testify in court.
The law in Zimbabwe recognises the concept of legal privilege as relating to communications between an attorney and his client. It is provided for in terms of section 8 of the Civil Evidence Act [Chapter 8:01].
It exists where confidential communication is made for the purpose of enabling the client to obtain, or the legal practitioner to give the client, legal advice, or in connection with pending or contemplated legal proceedings which the client is party to.
Such communications can only be disclosed with the client’s consent; or if it is established that the information was given to perpetuate a fraud or an offence in terms of the laws of Zimbabwe; or upon the death of the client, where the disclosure of the information is necessary to establish the client’s intention or legal competence.
There are no other rules disallowing disclosure of documents in Zimbabwe except those regarded as privileged.
The following are circumstances where injunctive relief may be awarded:
There are two main types of injunctions in terms of the Zimbabwean law, namely mandatory injunctions and prohibitory injunctions. Mandatory injunction is where the court orders a party to do something and prohibitory injunction is where a court orders a party to refrain from doing something.
There are also interlocutory injunctions where the court can order stay of execution of judgment or execution of judgment pending appeal.
Injunctive relief may be granted on an urgent basis in Zimbabwe and if the court is satisfied that the matter is urgent, the matter can be heard within 72 hours of filing the urgent application. There are no arrangements for out-of-hours judges but an urgent application can be filed with the court at any time even after close of court business.
Injunctive relief can be obtained on an ex parte basis in circumstances where execution of judgment is imminent. An order for stay of execution can be granted ex parte pending the determination of the application on the return date. This only applies in the Magistrates' Court.
In Zimbabwe there is no liability for damages suffered by the respondent if the respondent successfully later discharges the injunction. The court only makes an award of costs of suit.
Depending on the circumstances of the case, injunctive relief may be granted against assets of the respondent which are outside the jurisdiction of the court.
Generally, relief is obtained against a party to the proceedings but there are circumstances where an injunction may be binding on the agents, employees, assignees or successors of such party.
Failure to comply with the terms of an injunction constitutes contempt of court. An application can be made for the party who fails to comply to be held in contempt and be committed to prison for a maximum period of 12 months or ordered to pay a fine depending on the circumstances of the case.
Trial proceedings in Zimbabwe are conducted by way of oral hearings before a judge through leading witness evidence in addition to documentary evidence that would have been submitted. Each witness undergoes three (3) stages, namely:
The plaintiff usually has the duty to begin and when they close their case (when all their witnesses have led evidence), the defendant opens their case and evidence is led. When all witnesses from both parties have been examined, parties are required to make closing submissions and these can be either oral or written, after which the court can make its determination.
Before a matter is referred for a trial hearing, the rules of court require that the parties have a meeting to try and resolve issues in the matter on their own. This is normally referred to as a roundtable conference. Parties will then submit to the court the roundtable minutes showing what they discussed.
Once the roundtable minutes are filed, the parties will be required to appear before a judge for a pre-trial conference hearing for the purposes of agreeing on the issues to be referred for trial or possible settlement.
The parties may agree to settle at this stage and they would be required to file a deed of settlement signed by both parties detailing the terms of settlement together with an order by consent.
Jury trials are not available in Zimbabwe.
The general rules as regards admissibility of evidence are as follows:
Expert testimonies are permitted at trial. Evidence of expert witnesses is generally admissible on the basis of relevance. The court should, however, be satisfied by the witnesses’ qualifications and the expert witness must furnish the court with reasons for holding a particular view.
The court itself can direct that an expert witness be called to give evidence where technical expertise is required and the court cannot arrive at a decision on its own without guidance from an expert witness.
Court hearings in Zimbabwe are generally open to the public and anyone can attend any hearing in any court. Court records are also open to the public for perusal upon request. However, some hearings may be held in camera for security reasons in respect of the parties involved.
The role of the judge in Zimbabwe is to be an umpire, that is to control the conduct of the proceedings to ensure that the rules of court are complied with, then in the end make a determination on the matter.
The judge is not allowed to be actively involved in the arguments between the parties (descend into the arena) but may interject to seek clarification from the parties on certain issues which may be key to the determination of the matter.
A judge may give a determination at the end of the hearing (ex tempore judgment) in circumstances where the matter is straightforward and there is a clear position of the law applying to the circumstances.
However, judgment may be reserved for pronouncement at a later date in circumstances where a matter is complex and requires further research and where there is no clear position of the law applying to the circumstances.
Zimbabwean law does not provide for the general timeframes for proceedings from commencement of claim through to trial but parties are generally guided by the dies induciae for filing pleadings, set out in the rules of court.
The duration of trial in commercial disputes depends on the nature of each case and the number of witnesses to be examined. However, trials are scheduled on a continuous roll such that the hearing is conducted and completed expeditiously.
Court approval is required for settlement of a lawsuit in circumstances where proceedings have commenced and the parties require issuance of a court order or judgment. If parties settle before the pre-trial conference stage, an application for judgment should be made to the court wherein a deed of settlement signed by the parties and filed of record is required to be attached.
Where the parties settle at pre-trial conference stage, they will be required to appear before the judge to confirm the deed of settlement that they would have signed and an order of court will be issued.
Where proceedings have not been instituted in any court, the parties are free to settle and the court’s approval is not required.
Once proceedings are instituted, the record becomes open to the public including any settlement agreement which is part of the record.
Settlement agreements are enforceable where the parties obtain an order of court. Once there is an order of court, the party in whose favour judgment has been given may approach the Sheriff of the High Court or Messenger of Court for execution of judgment in the same manner in which ordinary court judgments are enforced.
Settlement agreements can be set aside in circumstances where the aggrieved party can prove that they signed the agreement under duress or undue influence, misrepresentation etc. This is done by way of application to the court to have the settlement agreement set aside.
In Zimbabwe a successful litigant is awarded costs of suit. These costs are awarded at the court's discretion and are claimable from the unsuccessful litigant.
Where a party is successful in a claim for breach of contract, they may be awarded damages for breach of contract in the form of compensation for loss suffered, restitution or specific performance.
Generally, damages are awarded depending on the circumstances of each case. A party claiming damages must prove entitlement to the amount being claimed. Damages may be general or special.
General damages are those damages which can be easily quantified; that is, where a party may produce proof of such damages. Special damages are those that are not easily quantifiable and include future expenses/losses.
As regards costs, they are awarded on an ordinary scale, as between party and party. However, costs may be awarded on a punitive scale as between an attorney and client in circumstances where the court considers that the circumstances warrant an order of costs on a higher scale. They are governed by the Law Society of Zimbabwe Tariff of Fees for Legal Practitioners.
The court can also make an award of costs de bonis propriis, which costs are awarded against the unsuccessful party’s legal practitioner in their personal capacity, in circumstances where the court finds that the conduct of the legal practitioner in handling the matter warrants an award of costs on a punitive scale.
A successful party may collect interest based on the period before the date of judgment. The order of court sets the parameters to which pre-judgment interest accrues; for example, interest may accrue from the date of summons to date of judgment.
A successful party may also collect interest accruing after judgment is entered and the order of court sets out the parameters to which post-judgment interest accrues; for example, interest may accrue from date of judgment to date of payment in full or from date of summons to date of payment in full.
There are no statutory limits to the award of pre- and/or post-judgment interest.
The Sheriff of the High Court or Messenger of Court are the officials responsible for the enforcement of orders of court. A successful party may instruct the above-mentioned officials for execution of judgment upon payment of the requisite fees. The Sheriff or Messenger will then issue a return of service showing details of execution.
Judgments of foreign countries may be enforced in Zimbabwe upon registration of such foreign judgments as orders of court in Zimbabwe in terms of the Civil Matters (Mutual Assistance) Act [Chapter 8:02]. Only foreign judgments in relation to international tribunals and designated countries in terms of the act are enforceable in Zimbabwe.
A litigant has a right of appeal against an order of court. Appeals from the community courts lie with the Magistrates' Court. Appeals from the Magistrates' Court lie with the High Court. Appeals against High Court orders lie with the Supreme Court.
Appeals from the Administrative Court, Fiscal Court and Electoral Court lie directly with the Supreme Court. The Supreme Court is the final court of appeal.
As regards appeals from the Labour Court, an application for leave to appeal to the Supreme Court should be made before the Labour Court first and if denied an application for leave to appeal can be made in the Supreme Court.
The High Court has inherent supervisory powers in respect of the administration of justice. In Zimbabwean law, the High Court is vested with the power to review the proceedings of all administrative tribunals, both statutory and domestic. This power is provided for in terms of section 26 of the High Court Act [Chapter 7:06].
The two main grounds upon which the High Court can interfere on review with an administrative tribunal’s proceedings are, firstly, that the administrative tribunal has acted beyond the powers allocated to it (ultra vires) and, secondly, that it did not comply with the principles of natural justice; that is, procedural irregularities.
Appeals are generally as of right except in circumstances where leave to appeal is required and a party will be required to file an application for leave to appeal. Appeals to the Supreme Court of Zimbabwe are based on points of law.
Appeals to a higher court are granted in circumstances where a litigant can prove that the decision was so unreasonable in its defiance of logic that no reasonable person exercising their mind to the circumstances of the matter could reach such a decision.
Generally, appeals are based on record and are governed in terms of the rules of the particular court to which the appeal lies.
An appeal is taken by way of Notice of Appeal within the timeframe stipulated in terms of the rules of court to which the appeal lies. The Notice of Appeal should generally contain the following:
An appeal to the Supreme Court from the High Could is made within 15 days from the date of judgment.
The notice of appeal must be served on the Registrar of the High Court to enable preparation of the record of proceedings. Once the record of proceedings is compiled, parties are invited to inspect the record, after which the record is forwarded to the Supreme Court.
Once the record is submitted to the Supreme Court the appellant will be required to file their heads of arguments within 15 days from receipt of the notification by the registrar. The respondent will be required to file their heads of argument within 10 days from receipt of the appellant’s heads of argument.
After both parties have filed their heads of argument, the matter can be set down for hearing on the next available date depending on the court’s calendar.
An appellate court considers points of law. Appeals are based on the record from the lower court and will be a review of the first instance decision. There will not be a re-hearing of the matter because no evidence is led on appeal.
New points which were not explored at first instance may be taken on appeal only if they relate to a point of law.
In terms of Zimbabwean law, no conditions are set on the granting of an appeal.
An appellate court may allow the appeal, set aside or vary the order of the lower court substituting with an appropriate order in the circumstances. The appellate court may dismiss the appeal and confirm the order of the lower court.
In relation to criminal appeals, the court may quash the conviction and make an order for acquittal of the accused person and may set aside or vary the sentence imposed substituting with an appropriate sentence in the circumstances.
Generally, it is the client’s responsibility to pay the costs of litigation. However, the successful litigant is entitled to reimbursement of such costs by the losing party. The costs recoverable include:
Depending on whether the awarded costs are at an ordinary scale or higher scale, there is a tariff that is used in determining the costs recoverable which is party and party costs. Costs on a legal practitioner and client scale are governed in terms of the Law Society of Zimbabwe Tariff of Fees for Legal Practitioners.
When a litigant is claiming costs of suit, they are required to prepare a bill of costs which is liable to be taxed before a taxing officer. A party who wishes to challenge the decision of a taxing officer may apply for review of the taxation proceedings.
The general rule is that a successful party is entitled to costs. The following factors may be considered in awarding costs:
Interest is not awarded on costs of suit in Zimbabwe.
Alternative dispute resolution mechanisms are highly recommended in Zimbabwe as it is more cost-effective than instituting legal proceedings in the courts of law. ADR proceedings are also informal as there are no strict rules as regards the filing of documents and timeframes. The following are the most popular ADR methods in Zimbabwe:
The legal system in Zimbabwe promotes ADR as it is entrenched within some legislation, in particular the Labour Act. Under the Labour Act [Chapter 28:01] alternative dispute resolution is provided for under Part XII of the said act to deal with certain unfair labour practices. Zimbabwean law also has the Arbitration Act [Chapter 7:05] which, however, does not make it compulsory for parties to use arbitration of dispute resolution, unlike the Labour Act which provides for conciliation and arbitration when dealing with unfair labour practices.
Zimbabwe has two institutions currently offering and promoting ADR. The two institutions are the Commercial Arbitration Centre (Harare) and AIMA (African Institution for Mediation and Arbitration) also operating in Harare. The two institutions have a list of arbitrators from which parties may choose, thereby promoting the use of ADR in the jurisdiction.
In Zimbabwe, the Arbitration Act governs the conduct of arbitrations and the enforcement of arbitral awards. The arbitration proceedings are conducted in terms of the Model Law which is a schedule to the Arbitration Act. The model law is a modified version of the UNCITRAL rules.
The following matters cannot be referred to arbitration in Zimbabwe:
A party can challenge an arbitral award if it is against public policy or there is a lack of jurisdiction of the arbitrator to preside over the dispute between the parties.
Domestic arbitral awards are registered or confirmed with the High Court of Zimbabwe on application for registration of the arbitral award. Once an arbitration award is registered it becomes an order of court which can be enforced/executed like other court orders.
There have been proposals for dispute resolution reform through the introduction of the IECMS which has ensured the continuation of hearings despite the COVID-19 pandemic. The system has ensured that hearings can be conducted virtually as opposed to physical hearings.
The judiciary in Zimbabwe promulgated practice directives to deal with the effect of COVID-19 from 2020 which were guidelines on the filing and service of court processes. The Judicial Service Commission also introduced an Integrated Electronic Case Management System (IECMS) for filling of court processes online including the conducting of virtual court hearings. The advent of COVID-19 impacted negatively on the Zimbabwean judiciary; however, the IECMS system has now been introduced and has been embraced by all parties involved including litigants and legal practitioners.