High Court (Commercial Division) Rules, 2020

High Court (Commercial Division) Rules, 2020
ARRANGEMENT OF SECTIONS
PART I
Preliminary
Section
1. Title.
2. Date of commencement and purpose.
3. Interpretation.
4. Application.
5. Jurisdiction.
Commencement and Determina tion of Nature of Proceedings
6. Commencement of Proceedings.
7. Determination of Nature of Proceedings.
PART II
Action Proceedings
8. Nature of summons and declaration.
9. Additional information to be contained in summons and
declaration.
10. Appearance to Defend.
11. Summary Judgment.
12. Plea.
13. Signing of summons and declaration.
14. Failure to file a plea or other answer to summons and declaration.
15. Setting aside of default judgment.
Pre-Trial, Case Management and Scheduling of Hearings
16. Allocation of cases.
17. Management of cases generally to be determined by the
Presiding Judge.
18. Power to make and give directions for the disposal of suits.
19. Pre-trial case management hearings to be held when directed
by a Judge.
20. Notification of case management pre-trial conference set down.
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21. Failure to appear of one or more parties.
22. Power of court to control evidence.
23. Set down and conduct of trials.
24. Closing submissions at the end of a trial.
PART III
Application Procedure
25. Nature of applications.
G eneral Provisions Applicable to all Applications
26. Written applications, notices and affidavits.
27. Counter-applications.
28. Adoption of incorrect form of application.
Court Applications
29. Form of court application.
30. Filing and service.
31. Time for opposition.
32. Notice of opposition and opposing affidavits.
33. Answering affidavit.
34. Further affidavits.
35. Set down of applications.
36. Heads of Argument.
37. Hearing of court applications.
Chamber Applications
38. Form of chamber applications.
39. Service of chamber applications.
Chamber Applications
40. Urgent chamber applications.
41. Judgments.
42. Execution and superannuation of judgments.
Section
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PART IV
Appeals
43. Appeals from a subordinate court or tribunal.
44. Appeals from the court.
PART V
General Provisions
45. Register and record of proceedings.
S ervice of Process
46. Electronic service.
47. Presumption of service.
48. Format of pleadings and other legal documents.
49. Amendment of pleadings.
50. Offers and tenders in settlement.
51. Appearance of parties and consequences of non-appearance.
52. Appearance of legal practitioners before the Court.
53. Conduct of hearing, postponements and adjournments.
54. Procedure where no application for set down after postponement
or adjournment sine die is made.
55. Subpoena and examination of witnesses.
56. Directions.
57. “E-Court status” of the Court.
58. Fees and costs.
59. Record of proceedings.
First Schedule: (FORMS).
Second Schedule: (VALUES).
IT is hereby notified that the Minister of Justice, Legal and
Parliamentary Affairs has, in terms of section 56 of the High Court Act
[Chapter 7:06], hereinafter called “the Act “approved the following
rules of court made by the Chief Justice, to regulate the proceedings
of the Commercial Division of the High Court:—
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PART I
Preliminary
Title
1. These rules may be cited as the High Court (Commercial
Division) Rules, 2020.
Date of commencement and purpose
2. These rules shall come into operation on the 1st of June, 2020,
and shall have effect in relation to all proceedings of the Commercial
Division of the High Court, including so far as is practicable
proceedings pending on that date.
Interpretation
3. (1) In these rules—
“another legal practitioner” means a legal practitioner who
is instructed by a legal practitioner not of the same
association or firm of legal practitioners;
“business” includes any entity, trade, profession, vocation
or venture and or an isolated transaction of a business
character, but does not include employment related
matters;
“case management” means judicial case management as
described in sub rule (10).
“commercial dispute” means a dispute of a civil nature
considered by the court to be of commercial significance,
including any claim or application arising out of a
transaction of trade or commerce but not limited to—
(a) the formation of a business or commercial
organisation;
(b) the formation, management, transfer or dissolution
of any business entity;
(c) the contractual relationship of a business entity
with another such entity or with another person or
persons undertaken in the course of business, other
than with a person or persons who are employees;
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(d) the contractual liability of a business or of a person
engaged in a business that arises in the course of
business activity other than arising from a contract
of employment;
(e) disputes primarily involving banking and financial
services;
(f) disputes relating to the restructuring or payment
of business debts, including business rescue and
insolvency;
(g) the enforcement of an arbitral award of a business
of a commercial nature;
(h) a business dispute that is between an individual,
a company, co-operative, partnership, syndicate,
trust or other entity which does not arise from a
contract of employment;
(i) disputes arising from the exploitation of oil and gas
reserves or other natural resources of a commercial
nature;
(j) any dispute of a commercial nature arising out
of insolvency, insurance claims, competition and
anti-trust law or legislation, the Companies and
Other Business Entities Act [Chapter 24:31],
pension funds and disputes relating to pensions
or the operation of a pension fund;
(k) any dispute relating to the management of a business
or commercial organisation, including a dispute
relating to the management of a business executive
directors of a company and its shareholders or
executive directors and the company;
(l) any dispute relating to the contractual relationship
or liability of a business, commercial organisation
or person with other bodies or persons outside the
business or commercial organisation arising out
of business or commercial activities;
(m) banking and financial services;
(n) the restructuring or payment of commercial debts
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by or to a business or commercial organisation or
person; and
(o) any other dispute that the Judge President may
designate as a “commercial dispute” upon request
by any of the parties to the dispute;
“Commercial Court or the court” means the Commercial
Division of the High Court of Zimbabwe;
“date of filing” means the date on which any pleading envisaged
by these Rules is lodged with the Registrar;
“date of service” means the date on which any pleading
or other process is delivered either physically or via
electronic form to the recipient named in the document;
“deliver or serve” means to either, physically or electronically
file a pleading of record with the registrar and
immediately thereafter serve a copy on the other party
electronically or by physical means. For the avoidance
of doubt, if a document is sent by telefax or electronic
communication to a registry, the document is, if accepted
by a registry, taken to have been filed—
(a) if the whole document is received by 4.30 p.m. on
a business day by the registrar, on that day; or
(b) in any other case, on the next business day for the
registry.
“form” means any of the prescribed Forms set out in the High
Court Rules or the First Schedule hereto;
“judge” means a judge of the court, sitting otherwise than in
open court;
“judge in charge or presiding judge” means the judge in charge
of the court or any other judge acting in that capacity;
“legal practitioner” means a legal practitioner registered in
terms of the Legal Practitioners Act [Chapter 27:07];
“notice” means a notice given in writing and delivered either
by physical or electronic means;
“party” means any person who is a party to any proceedings
before the court;
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“process of court” means any process of the court lawfully
issued by the registrar in terms of these rules;
“registrar” means the registrar of the High Court, and includes
any acting or deputy or assistant registrar or in their
absence any person designated as such by the Chief
Justice.
“Rules” means these Rules as may be amended from
time to time.
(2) The monetary jurisdiction of the court shall be an amount,
or the value thereof, that exceeds the monetary jurisdiction of the
magistrates’ commercial courts by the equivalent of one United States
dollar (US$1) in the functional currency of Zimbabwe at any point
in time.
(3) Where anything is required by these rules to be done within
a particular number of days or hours, a Saturday, Sunday or public
holiday in Zimbabwe shall not be reckoned as part of such period.
(4) A document that is sent by electronic communication to
a registry for filing shall be—
(a) sent by using the official website of the court;
(b) in an electronic format approved by the registrar; and
(c) capable of being printed in the form in which it was
created, without modification or loss of content.
(5) An affidavit shall be sent as an image.
(6) A document in an existing proceeding shall be sent to the
registrar by using the court’s website.
(7) A person who sends a document in terms of these rules
shall—
(a) keep a hard or electronic copy of the document prepared
in accordance with these rules; and
(b) if ordered to do so by the court, produce the hard copy
of the document.
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(8) Where a document sent to the registrar by electronic means
in accordance with these Rules is accepted at the registry, and is a
document that must be signed or stamped, the registrar shall—
(a) for a document that these rules require to be endorsed
with a date for hearing, insert a notice of filing and
hearing as the first page of the document; and
(b) for any other document, insert a notice of filing as the
first page of the document.
(9) If a notice has been inserted as the first page of the document
in accordance with sub rule (8) above, the notice is taken to be part
of the document for the purposes of these rules.
(10) Judicial case management shall include the processes
set out in rule 17.
Application
4. (1) These rules shall, unless expressly provided otherwise,
apply to all commercial disputes brought before the Commercial
Division of the High Court (hereinafter referred to as “the court”).
(2) To the extent that any procedural matter arises during
any proceedings before the court, which matter is not specifically
regulated or provided for under these rules, then in such event the
High Court Rules (1971) (hereinafter referred to as “the High Court
Rules”) shall apply mutatis mutandis).
(3) The court shall in administering these rules, have due
regard to the set of values set out in the Second Schedule to these
rules and the need to achieve substantial justice inter parties in any
particular case without derogating from the principles of natural
justice or established law and resolving the dispute timeously.
Jurisdiction
5. (1) The court shall be vested with both original and appellate
jurisdictions over all commercial disputes.
(2) A court registry shall be kept at Harare, Bulawayo,
Masvingo, and Mutare and at any such other place or places as the
Chief Justice may determine from time to time.
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Commencement and Determination of Nature of Proceedings
Commencement of proceedings
6. (1) Proceedings in the court shall, except in the case of
proceedings which by these rules or under any other law are required
to be instituted by any other specified mode of commencement, be
instituted by way of application.
(2) Proceedings shall be instituted in the relevant form as
may be prescribed.
Determination of nature of proceedings
7. (1) Proceedings—
(a) in which the sole or principal question at issue is or is
likely to be one of the interpretation of any law or of
any instrument made under any law, or of any deed,
contract or other document, or some other questions
of law, shall be instituted by way of application;
(b) in which there is likely to be a substantial dispute of
fact or for any other reason a person considers that the
proceedings may not appropriately be instituted by
way of an application, shall be instituted by way of a
summons commencing action.
PART II
Action Procedure
Nature of summons and declaration
8. The provisions of Order 3 Rules 9 to Rule 16 of the High
Court Rules shall apply mutatis mutandis to a summons commencing
action issued in the court:
Provided that every summons shall be filed together with the
plaintiff’s declaration and the summary of evidence in Form No. CC 2.
Additional particulars to be contained in the summons and declaration
9. (1) Notwithstanding the provisions of Order 3 Rule 11 of the
High Court Rules, the plaintiff shall file, along with the summons and