Civil Matters (Mutual Assistance) Act [Chapter 8:02]

CHAPTER 8:02
CIVILMATTERS (MUTUAL ASSISTANCE) ACT
Acts 14/1995, 22/2001 (s. 4).
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
2. Interpretation.
3. Designated countries and application of Act in relation thereto.
PART II
RECIPROCAL ENFORCEMENT OF JUDGMENTS
4. Interpretation in Part II.
5. Application for registration of foreign judgment.
6. Grant or refusal of application.
7. Registration of foreign judgment and effect of registration.
8. Setting aside of registration of foreign judgment.
9. Evidence and presumptions.
10. Act not to affect conclusive nature of foreign judgments.
11. Issue of documents for enforcement of judgments given in Zimbabwe.
PART III
SERVICE OFCIVIL PROCESS AND ATTENDANCE OFWITNESSES IN DESIGNATEDCOUNTRIES
12. Interpretation in Part III.
13. Service of process received from designated country.
14. Authentication of foreign process not required.
15. Penalty for failing to obey certain subpoenas.
16. Certain fees not recoverable.
17. Issue of process for service in designated country.
18. Proof of service of process issued in Zimbabwe.
PART IV
OBTAINING OF EVIDENCE FOR USE INDESIGNATED COUNTRIES
19. Interpretation in Part IV.
20. Application to Zimbabwean court for assistance in obtaining evidence.
21. Orders that may be made on application for assistance.
22. Privileges of persons giving evidence.
23. Offences by witnesses.
PART V
GENERAL
24. Immunity of witnesses from designated countries.
25. Act not to derogate from other laws.
26. Repeals and savings.
AN ACT to provide for the enforcement in Zimbabwe of civil judgments given in foreign countries
and territories and to facilitate the enforcement in foreign countries and territories of civil judgments
given in Zimbabwe; to provide for the service in Zimbabwe of civil process issued out of foreign
courts and to facilitate the service in foreign countries and territories of civil process issued out of
courts in Zimbabwe; to provide for the obtaining of evidence of persons in Zimbabwe in connection
with civil cases in foreign countries and territories.
[Date of commencement: 1st April, 1996.]
PART I
PRELIMINARY
1 Short title
This Act may be cited as the Civil Matters (Mutual Assistance) Act [Chapter 8:02].
2 Interpretation
In this Act—
“civil case” means proceedings in any civil or commercial matter before any court or tribunal, and includes
proceedings before an arbitrator;
“designated country” means a foreign country or territory declared to be a designated country in terms of
subsection (2) of section three;
“give evidence” includes to answer a question and to produce a thing in evidence;
“judgment” means a judgment or order given or made by any court or tribunal requiring the payment of
money, and includes an award of compensation or damages to an aggrieved party in criminal proceedings;
“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the
President may, from time to time, assign the administration of this Act;
“rules of court” include rules or regulations governing the practice and procedure of any tribunal;
“tribunal” includes any tribunal, commission, body or authority, whether consisting of one or more persons,
which performs any function of a judicial nature or by way of arbitration, conciliation or inquiry.
3 Application of Act to designated countries and international tribunals
(1) In this section—
“international tribunal” means any court or tribunal which, in pursuance of any international agreement or
any resolution of the General Assembly of the United Nations—
(a) exercises any jurisdiction or performs any function of a judicial nature or by way of arbitration, conciliation
or inquiry; or
(b) is appointed, whether permanently or temporarily, for the purpose of exercising any jurisdiction or
performing any such function.
(2) Subject to this section, the Minister may, by order in the Gazette—
(a) declare any foreign country or territory to be a designated country for the purposes of this Act or such of
the provisions of this Act as he may specify in the order;
(b) declare that this Act, or such of the provisions of this Act as he may specify in the order, shall apply in
relation to any international tribunal.
(3) In an order under subsection (2), the Minister may declare that—
(a) the application of this Act, or of any provision of this Act, shall be restricted to any particular class of
judgments, process or civil cases in relation to the designated country or international tribunal concerned;
or
(b) this Act, or any provision of this Act, shall apply in relation to the designated country or international
tribunal concerned subject to specified restrictions or modifications;
and this Act or that provision, as the case may be, shall apply in relation to that designated country or international
tribunal accordingly.
(4) Subject to this Act and any restrictions or modifications specified in the order concerned, this Act shall
apply to—
(a) judgments given in a designated country or by an international tribunal specified in an order under
subsection (2); and
(b) summonses and other process issued in a designated country or by an international tribunal specified in
an order under subsection (2); and
(c) civil cases commenced in a designated country or before an international tribunal specified in an order
under subsection (2);
whether before, on or after the date on which the country or territory concerned became a designated country or
the international tribunal was specified in the order, as the case may be.
PART II
RECIPROCAL ENFORCEMENT OF JUDGMENTS
4 Interpretation in Part II
In this Part—
“appropriate court”, in relation to—
(a) any judgment, means the High Court;
(b) any judgment which would have been within the jurisdiction of a magistrates court had the cause
of action arisen wholly within the court’s province, means that magistrates court;
“defendant” includes any person against whom proceedings, whether in convention or reconvention, are instituted
in any court or tribunal;
“judgment creditor” means the person in whose favour a judgment was given or any other person in whom
any of his rights under the judgment have become vested;
“judgment debtor” means the person against whom a judgment was given or any other person against whom
the judgment is enforceable;
“plaintiff” includes any person who institutes proceedings, whether in convention or reconvention, in any
court or tribunal or on whose behalf such proceedings are instituted;
“registration”, in relation to a judgment, means registration in terms of subsection (1) of section seven.
5 Application for registration of foreign judgment
(1) Subject to subsection (2), a judgment creditor under a judgment given in a designated country may apply
to an appropriate court for the registration of that judgment in the appropriate court.
(2) An application under subsection (1) for the registration of a judgment—
(a) may be made at any time within six years after—
(i) the date of the judgment; or
(ii) the determination of any proceedings by way of appeal or review, where such proceedings have
been instituted in respect of the judgment;
and
(b) shall be made in the form and manner prescribed in rules of court applicable to the appropriate court.
6 Grant or refusal of application
(1) Subject to this section, in an application under section five, an appropriate court shall direct the registration
of the judgment concerned if the court is satisfied that it is just and convenient for the judgment to be enforced
in Zimbabwe.
(2) An appropriate court shall not direct the registration of a judgment if the court is satisfied that—
(a) the court or tribunal that gave the judgment had no jurisdiction to do so; or
(b) the judgment is not a final and conclusive judgment of the court or tribunal concerned; or
(c) the judgment could not be enforced wholly or partly by execution in the designated country in which it
was given; or
(d) the judgment has been set aside by a court of competent jurisdiction; or
(e) the judgment has been wholly satisfied; or
(f) the judgment has become prescribed under the law of the designated country in which it was given; or
(g) enforcement of the judgment would be contrary to any law or to public policy in Zimbabwe; or
(h) the judgment is for the payment of—
(i) any tax, duty, rate or similar charge; or
(ii) a fine or other penalty; or
(iii) maintenance for any person;
or
(i) the judgment was obtained by fraud; or
(j) the applicant is not a judgment creditor vested with a right to seek enforcement of the judgment; or
(k) the judgment debtor, as defendant in the proceedings that gave rise to the judgment, was not able to
appear and defend the proceedings because he did not receive reasonable notice of them.
(3) When directing the registration of a judgment an appropriate court may give such ancillary orders as it
considers necessary or desirable, including an order prohibiting the removal or disposal of any assets of the judgment
debtor.
(4) If on the date of an application under section five the judgment concerned has been partly satisfied, the
appropriate court may direct that the judgment be registered in respect of the balance remaining payable at that
date.
(5) Where a court refuses to direct the registration of a judgment on the ground that—
(a) an appeal against it is pending or the judgment debtor is entitled to appeal against it and intends to do
so; or
(b) the judgment is not enforceable by execution in the designated country in which it was given;
the refusal shall not prevent the bringing of a further application under this section when the appeal has been
determined or the judgment has become enforceable by execution in the designated country concerned, as the case
may be.
7 Registration of foreign judgment and effect of registration
(1) Where an appropriate court has directed the registration of a foreign judgment in terms of section six, the
registrar or clerk of the court shall forthwith—
(a) register the judgment in the manner prescribed in rules of court applicable to the appropriate court; and
(b) give the judgment debtor notice of the registration and of any ancillary order that the appropriate court
may have made.
(2) Subject to this section and to sections eight and nine, upon the registration of a judgment in terms of subsection
(1)—
(a) the judgment shall have the same effect for the purposes of execution; and
(b) proceedings may be taken on the judgment; and
(c) the sum for which the judgment is registered shall bear interest; and
(d) the appropriate court concerned shall have the same control over the judgment;
as if the judgment were a judgment of the appropriate court concerned.
(3) Subject to any order of the appropriate court concerned the following amounts shall be included in the
money payable under any registered judgment—
(a) any interest payable under the law of the designated country concerned, up to the time of the judgment’s
registration; and
(b) the costs of and incidental to the judgment’s registration, including the costs of obtaining a certified
copy of the judgment.
(4) No execution shall issue on a registered judgment until the period within which an application for setting
the registration aside may be made has elapsed.
8 Setting aside of registration of foreign judgment
(1) Subject to this section, a judgment debtor under a registered judgment may apply to the court where the
judgment is registered for its registration to be set aside.
(2) An application in terms of subsection (1) shall be made within the time and in the manner prescribed in
rules of court applicable to the court concerned.
(3) Without the leave of the court, a judgment debtor shall not apply in terms of subsection (1) for the setting
aside of the registration of a judgment on any ground that was determined by the court in the application for
registration of the judgment.
(4) Subject to subsection (5), in an application in terms of subsection (1) the court shall set aside the registration
of the judgment concerned if the court is satisfied that, for any reason referred to in subsection (2) of section
six, the registration should be set aside.
(5) If the court is satisfied, in an application in terms of subsection (1), that—
(a) an appeal is pending against the judgment concerned or that the applicant is entitled to appeal against it
and intends to do so, the court may postpone the application to enable the appeal to be determined;
(b) the judgment has been partly satisfied, the court may order the judgment to be registered for the balance
remaining payable under the judgment.
(6) Where the registration of a judgment is set aside on the ground that—
(a) an appeal against it is pending or that the judgment debtor is entitled to appeal against it and intends to
do so; or
(b) the judgment is not enforceable by execution in the designated country in which it was given;
the setting aside of the registration shall not prevent the bringing of a further application under section six when
the appeal has been determined or the judgment has become enforceable by execution in the designated country
concerned, as the case may be.
9 Evidence and presumptions
(1) A document purporting to be a copy of a judgment of a court or tribunal in a designated country and purporting
to be certified as a true copy of an original judgment of that court or tribunal by someone styled in that
document to be a registrar, clerk, secretary or other officer of that court or tribunal shall be admissible in evidence
in proceedings under this Part on its production by any person and shall be prima facie proof of its contents.
(2) A document made or executed outside Zimbabwe shall be admissible in evidence in proceedings under
this Part in all respects as if it had been made or executed in Zimbabwe.
(3) Documents referred to in subsection (1) and (2) need not be authenticated.
(4) In any proceedings under this Part for the registration of a judgment or for the setting aside of its registration,
the court or tribunal which gave the judgment shall be deemed to have had jurisdiction—
(a) if the judgment debtor—
(i) was a plaintiff in the proceedings or submitted to the jurisdiction of the court or tribunal concerned
by voluntarily appearing in the proceedings for any purpose other than protecting or obtaining
the release of property seized or threatened with seizure in the proceedings or contesting
the jurisdiction of the court or tribunal; or
(ii) was a defendant in the proceedings and, before the proceedings commenced, agreed in respect of
the subject-matter of the proceedings to submit to the jurisdiction of any court or tribunal in the
designated country concerned; or
(iii) was a defendant in the proceedings and—
A. when the proceedings were instituted, was resident in the designated country concerned
or, being a juristic person, had its principal place of business in that designated country;
or
B. at any time had an office or place of business in the designated country concerned through
or at which the transaction which gave rise to the proceedings was effected;
or
(b) where the proceedings related to movable or immovable property, if the property was in the designated
country concerned when the proceedings were instituted; or
(c) in respect of any proceedings other than those referred to in paragraph (a) or (b), if the jurisdiction of the
court or tribunal by which the judgment was given is recognized under the law of Zimbabwe.
10 Act not to affect conclusive nature of foreign judgments
Nothing in this Part shall be construed as preventing any court in Zimbabwe from recognizing any judgment
given by a court or tribunal outside Zimbabwe, other than a judgment the registration of which has been refused or
set aside in terms of section six or eight, as being conclusive of any question of law or of fact decided in the
judgment.
11 Issue of documents for enforcement of judgments given in Zimbabwe.
(1) Where a judgment creditor wishes to enforce in a designated country a judgment given in Zimbabwe, the
registrar, clerk or secretary of the court or tribunal which gave the judgment shall, on application by the judgment
debtor, provide him with—
(a) a copy of the judgment, certified as correct by the registrar, clerk or secretary; and
(b) a certificate stating—
(i) the name of the court or tribunal which gave the judgment and the date on which and the place at
which it was given, where such particulars are not stated on the copy of the judgment itself; and
(ii) the nature of the proceedings as a consequence of which the judgment was given; and
(iii) whether or not an appeal has been noted against the judgment and, if such an appeal has been
determined, its result; and
(iv) the extent to which the judgment has been satisfied; and
(v) any other particulars that may be prescribed in rules of court applicable to the court or tribunal
concerned.
(2) An application for the purposes of subsection (1) shall be made in the manner and accompanied by the
fee, if any, prescribed in rules of court applicable to the court or tribunal concerned.
PART III
SERVICE OFCIVIL PROCESS AND ATTENDANCE OFWITNESSES IN DESIGNATEDCOUNTRIES
12 Interpretation in Part III
In this Part—
“process” means a summons, writ, notice or other document issued or executed in relation to a civil case, and
includes a subpoena;
“subpoena” means any document requiring the attendance of a person before a court or tribunal as a witness
in a civil case.
13 Service of process received from designated country
(1) Subject to subsections (3) and (4), where any process that purports to have been issued by an officer of a
court in a designated country is received by a magistrate with a request that it be served within the province for
which the magistrate’s court is established, the magistrate shall, if he is satisfied that the process was lawfully
issued, endorse the process for service.
(2) Subject to rules of court applicable to magistrates courts, any process endorsed in terms of subsection (1)
shall be served as if it were process issued out of the court of the magistrate concerned.
(3) Any process not drawn up in the English language or in any other language commonly spoken within the
area in which the process is to be served shall not be endorsed in terms of subsection (1) unless it is accompanied
by a sworn translation in English or such other language.
(4) Where the process referred to in subsection (1) is a subpoena requiring the attendance of any person before
a court or tribunal in a designated country, the magistrate shall not endorse it for service unless he is satisfied
that, when the subpoena is served on that person, there will be tendered to him a sum sufficient to cover his
reasonable expenses in proceeding to and returning from the court or tribunal named in the subpoena and during
his detention at the place where his evidence is to be given.
(5) Unless otherwise provided in the order designating the foreign country or territory concerned, service of a
subpoena that has been issued in a designated country and endorsed for service in terms of subsection (1) shall not
impose any obligation under the law of Zimbabwe to comply with it.