1. Cases where the defendant having been served with the Summons does not defend the action at all within the given time.
2. Cases where the defendant does not defend the action but enters into a consent with the plaintiff.
3. Cases where the defendant initially defends the action and at any stage before trial enters into a consent with the plaintiff.

It is the first category of cases which sometimes present difficulties in light of Order 35 Rule 269A of the High Court Rules, 1971. The Rule provides as follows;

“269A. Summons commencing action

The summons commencing an action mentioned in this Order may, at the option of the plaintiff, be issued in Form No. 30A, to which a copy of the plaintiff’s declaration shall be annexed, in which case the provisions of rule 272 shall not apply to such an action.”

The provisions of Rule 272 are to the effect that where the defendant, having been served with the summons, has failed to enter appearance to defend he/she shall be given a notice in Form No. 30 calling upon him/her to enter appearance and to plead within twelve days of the date of delivery of the notice and informing him/her that in default thereof judgment will be prayed against him/her. The Rule further provides that the plaintiff may thereafter set down the matter and effect personal service of the notice of set down on the defendant.

It would appear from the provisions of Rule 269A that where one uses the summons in Form No.30A there is no need to follow the provisions of Rule 272 and the plaintiff can obtain default judgment without serving the notice in Form No. 30. This is the interpretation given by the court in the case of Mathe v Mathe HB17/12. The court however held that personal service of the notice of set down remains a requirement.

The court in Tarumbwa v Tarumbwa HH19/2007 took a view which we humbly subscribe to. It held as follows;

“Further, it appears anomalous that the same court would be required under Rule 272 to ensure that a defendant in a divorce action instituted ordinarily, as opposed to a defendant served with Form 30A summons, is given every opportunity to defend the action, including being given an opportunity to appear in court on the set down date and to defend the divorce action at that late hour yet not afford the same rights and protection to defendants served with Form 30A summons when such summons have no features safeguarding the protection afforded by Rule 272 as used to be the case.

The plaintiff can obtain a default judgment without the defendant being given an opportunity to purge his failure to enter appearance to defend, to plead or to exercise the other options provided by rule 272(1)(a).  This would not have been the intention of the legislature considering that we are dealing with matters which have the effect of changing the status of the parties”.

The court in the Tarumbwa case ordered that Rule 272 be complied with in spite of the plaintiff having proceeded in terms of Form No. 30A. Even in judgments where it was held that there is no requirement for a notice to plead where one uses Form 30A, emphasis is still put on the fact that the notice of set down should be served personally on the defendant. What is the purpose of personal service of the notice of set down other than to give the defendant the opportunity to defend the action even at the 11^th hour? The Judge President recently gave a guide to unopposed divorce matters on 30 October 2020 and the guide gives support to the position taken in the Tarumbwa case.

In categories 2 and 3 the parties should enter into a consent paper detailing their agreement on such issues as custody, access, and property distribution. The defendant should further sign an affidavit of waiver. In all the three categories the plaintiff should depose to an affidavit setting out the evidence on which he/she relies in support of the order being sought.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2021

The post Unopposed Divorce Action In Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

The process of legalisation is usually two-fold.  First the document must be certified and authenticated by the Ministry of Foreign Affairs and International Trade (legal and consular department). This involves the official from the Ministry certifying that the document is authentic and putting the seal. Second, the document is also certified and authenticated by the respective embassy. In some cases the receiving country may require that the document be translated in which case the translation must be done by a certified translator.

Some documents are not necessarily public in nature but may be required by an institution in a foreign country. Depending on the requirements of the receiving institution these documents may simply be notarised by a notary public.

For documents issued abroad for use in Zimbabwe the legalisation process is as described above. One has to go to the relevant government department for certification and authentication of the document before proceeding to the Zimbabwean Embassy for the same. One should however take note of the provisions of the High Court (Authentication of Documents) Rules, 1971. In terms of these Rules a document executed outside Zimbabwe is deemed sufficiently authenticated for the purpose of production or use in any court or tribunal in Zimbabwe or for the purpose of production or lodging in any public office in Zimbabwe if it is authenticated by a notary public, mayor or person holding judicial office or an official of the Zimbabwean diplomatic or consular mission in the respective country.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2020

The post Legalisation Of Documents In Zimbabwe appeared first on Marume & Furidzo Legal Practitioners.

“notary public” means a person registered as such in terms of the Legal Practitioners Act [Chapter 27:07] and, in relation to any document executed outside Zimbabwe, means a person lawfully practising as such in the place where the document was executed

In Zimbabwe a notary public must be registered as such by the High Court. A notary public must be a legal practitioner but a legal practitioner may not necessarily be a notary public. The notary public is authorized to draft and attests contracts and other documents. Documents which must be drafted by a notary public include notarial deed of trust, notarial deed of change of name, notarial bond, and ante nuptial contract.

Any document which is executed outside Zimbabwe for use in Zimbabwe must be authenticated in terms of the High Court (Authentication of Documents) Rules, 1971. The Rules define authentication as the verification of any signature on a document. This authentication may be done by a notary public in the country where the document is executed. Powers of attorney, affidavits and consent papers signed outside Zimbabwe must be authenticated for them to be valid in Zimbabwe. The effect of having documents executed outside Zimbabwe not authenticated is illustrated by the case of Mystical Trading (Pvt) Ltd & Ors v Addx Trading 528 (Pty) Ltd & Ors HH132/11 where the court held as follows:

“An examination of the resolutions clearly shows that there is no compliance with the

above rule with respect to the resolutions purported to be emanating from the second and third applicants. The second applicant is based in Mauritius and the third applicant is based in South Africa. In terms of the above rule, the resolutions were clearly not properly authenticated for use in this court. The resolutions are therefore not acceptable. To the extent that the interests of the first applicant cannot be delinked from the other two applicants, it follows that this fatal procedural irregularity impinges on the first applicant’s position before the court. This finding means that there is no founding affidavit to this application. I believe this is a matter of law which the court can also raise mero motu. “

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Marume & Furidzo Legal Practitioners 2018

The post The Notary Public appeared first on Marume & Furidzo Legal Practitioners.