Your day in court: A guide to the litigation process and what to expect

RUTENDO MANHIMANZI

Litigation or any contact with law or law officers can be both cumbersome and scary according to some, however with the right knowledge of processes and procedures it can be easy.

Civil law regulates disputes between individuals that are of a non-criminal nature. The affected parties refer the matters to the court and the party who violated the law is normally required to compensate the other.

The Constitution of Zimbabwe is the Supreme Law of the country and is the parent act for any other legislation. The legal system in Zimbabwe is a combination of Roman Dutch Law, Civil Law and Customary Law. This is inherited from the colonial system and without a doubt our own customs too. The primary sources of law in our legal system are:

1.         legislation composed of statutes and regulations;
2. Court decisions (precedents) also guide in the interpretation of the law;

iii.         Customary law;

1. Common law and
2. Authoritative texts.

Civil procedure is governed by the various rules that pertain to each court or establishment. These various courts are the Customary Law and Local Courts Act, Small Claims Court Act, Magistrates Court Act, High Court Act, Supreme Court Act and the Constitutional Court.

The structure of the Courts 

The Zimbabwean court system is multi-tired. Matters go through various stages in civil proceedings. Customary law matters are usually initiated in the Customary and Local Courts and any subsequent appeals are heard in the Magistrates Court.

Civil proceedings usually commence at the Magistrates Court guided by the governing laws. Any appeals are heard in the High Court then to the Supreme Court. For matters that commence in the High Court appeals are handled by the Supreme Court of Appeal.  There is the Constitutional Court which is a specialist court and the highest court in all constitutional matters and acts as a court of both first and final instance. It must also be taken into cognizance that not all matters go through appeals some go through the review process.

The Magistrates Court has three general divisions, that is the civil division, commercial division and a small claims division. The Magistrates Court is the court of appeals and reviews for matters from Customary Law and Local Courts.  Matters that are heard in the Small Claims Court are not appealable but rather they are reviewed by the High Court. Legal practitioners have no right of audience before Customary Law and Local Courts. The High Court has jurisdiction to determine appeals and reviews from the Magistrates Court.  The High Court is a court of inherent jurisdiction with full civil jurisdiction over all persons and matters in Zimbabwe. Thus, it is the court of first instance for all matters above the prescribed jurisdiction of the lower courts. The introduction of the Commercial Division of the High Court was critical in the interest of expeditiously dealing with commercial crimes and is a national effort in attracting local and foreign direct investment.

  The Supreme Court is an appellate court with a final decision and presides over all appeals from the High Court.  It also has jurisdiction to preside over appeals from other special courts such as the Labour Court, Administrative Court and Fiscal Court.

The difference between review and appeal

The reason for bringing proceedings under review or appeal is usually the same, which is to have the judgment set aside. An appeal is a challenge to the findings on the facts or the law. In an appeal the parties are confined to the record. Where, however, grievance is against the method of the trial, then the matter can be brought on review.

Civil proceedings stages

The introduction of the Integrated Electronic Case Management (IECMS) for the Judiciary system of Zimbabwe has revolutionized the legal journey. The adoption of the IECMS is to enable legal practitioners and litigants to submit their court case documents and track the progress of their cases online.

The main stages in civil proceedings are:

1. Pleadings

issuance of summons, pleas and replication. This is the stage when parties commence their cases by filling all necessary documents with the court and serving them on the other party.

1. Pre-trial conference

This is the stage where the parties’ narrow down issues for trial before the magistrate or judge. At this stage parties disclose and furnish each other with all documents to be used for trial and this is called discovery of documents.

1. Trial

This is the stage where the matter is heard in court. Evidence is usually adduced through witnesses and once done the closing submissions are made.

1. Judgment

This is the final stage where the court decides on the matter and judgement can then be enforced

However, after judgement has been handed down an aggrieved party has the right to appeal. Such must also be done within the legally prescribed timeframes.

Note that, when instituting proceeding against the state a 60 days’ notice of such intention must first be issued. section 6 of the State Liabilities Act [Chapter 8:14], makes provision for such. Section 196(1) of the Customs and Excise Act [Chapter 23:02] also requires a 60 days’ notice from a litigant who intends to institute civil proceedings against the state, the Commissioner, or an officer for anything done under the Act or any law relating to customs and exercise.

Prescription

The Prescription Act [Chapter 8:11] (section 15) regulates the time within which the different classes of claims should be brought before the courts. Prescription shall commence to run as soon as a debt is due.

The period of prescription of a debt shall be—

(a) thirty years, in the case of—

(i)a debt secured by mortgage bond;

(ii)a judgment debt;

(iii)a debt in respect of taxation imposed or levied by or under any enactment;

(iv)a debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances;

(b)fifteen years, in the case of a debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor unless a longer period applies in respect of the debt concerned in terms of paragraph (a);

(c)six years in the case of—

(i)a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract;

(ii) a debt owed to the State;

(d)except where any enactment provides otherwise, three years, in the case of any other debt.

Criminal proceedings general overview

Criminal law deals with the punishment of individuals who commit crimes. A crime is an offense against the state and society. When criminal law is violated, the onus is on the state to arrest and prosecute the offender. The victim is a complainant and automatically becomes a witness in the case. Numerous crimes are dealt with by criminal law these include but not limited to rape, theft, assault, murder and many others as envisaged by the law. The main statute being the Criminal Law Codification and Reform Act [Chapter 9:23] A criminal case can be brought against anyone, including state employees, such as a member of the uniformed forces. When a criminal matter is brought before a magistrate, the prosecutor must prove beyond a reasonable doubt that the accused committed the offence.  A cardinal principle to note is an accused is presumed innocent until proven guilty. The accused also has rights that must be respected like rights to a fair trial, trial within a reasonable time and legal representation of their choice.

Once proven, guilty punishment to be imposed must be in adherence to the provisions of the relevant law or statute. Likewise, the accused person has a right of appeal from the lower court of conviction to the next upper court, with the Supreme court being the last court of appeal.

Conclusion

Whether one is involved in a civil or criminal matter they are entitled to legal representation. One young man in the village had been a passenger in a car that was involved in an accident in which the driver unfortunately lost his life. When the police sought for a statement or an account of what transpired he did not present himself at the police station. Instead, he vanished into thin air, he switched off his mobile phone and went deeper into the village to his grandfather who also concurred that he should stay in hiding because the legal process is cumbersome. All this was as a result of fear and lack of knowledge, hence the need for the general public to take time to understand how legal processes are handled. Similarly, when served with summons one can be gripped with panic and be clueless on the next procedure and they decide to settle to the demands to their disadvantage, the aim being to do away with litigation.

Rutendo Manhimanzi is a registered Legal Practitioner and practices under the law firm Ruzvidzo Legal Counsel. She can be reached on +263 773 589 263 or email rmanhimanzi@yahoo.com