New High Court Rules were published by SI 202 of 2021 in the Government Gazette last Friday, replacing the High Court Rules, 1971, which have been in force for 50 years and have been amended nearly 40 times. They also replace the following rules:
• the High Court (Criminal) Rules of 1964
• the High Court of Zimbabwe (Bail) Rules of 1991, and
• the High Court (Miscellaneous Appeals and Reviews) Rules of 1975.
The new rules can be accessed on the Veritas Zimbabwe website, they are very long, running to nearly 300 pages, so merely gives a brief outline of their contents.
Scope of the New Rules
The main emphasis of the rules is on civil cases, but some of the provisions cover criminal matters, as we shall explain.
The rules cover all stages of civil proceedings from the issue and service of summonses (in the case of actions) to the giving and enforcement of judgments, as well as such incidental matters as the appointment of deputy sheriffs and the swearing-in of interpreters.
The rules do not seem to make any major changes to our law of civil procedure but largely follow the form and layout of the old rules. In that regard it has to be said that, like the old rules, they are not user friendly and assume that the reader has a good working knowledge of civil procedure. For example:
• They do not explain when it is appropriate to institute proceedings by way of action and when by way of application.
• They state that default judgments can be set aside if the court is satisfied that “there is good and sufficient cause to do so” without listing the recognised grounds on which courts may set aside such judgments.
• The factors which a court should take into account in granting summary judgment are not stated.
The authors of the new rules were not compiling a textbook on civil law, of course, but they might have made the rules a little easier for lay-persons and novice lawyers to understand.
Part XIV of the rules deals with criminal indictments, the recording of criminal proceedings, and general issues of criminal procedure such as the service of subpoenas, the oaths to be taken by interpreters and (rather ghoulishly) the way in which death sentences are to be imposed. Part XV deals with bail applications and appeals, and Part XVI deals with appeals to the High Court from magistrates courts.
The reason for the sparse coverage of criminal matters is that most of our law of criminal procedure is contained in the Criminal Procedure and Evidence Act, so the new rules are filling in details which are not covered by that Act.
Like the rules dealing with civil cases, the rules for criminal matters are not user-friendly. For example, references to “the Act” in rule 89 are not to the High Court Act, as one might expect, but to the Criminal Procedure and Evidence Act – something that only a reader with some knowledge of criminal procedure would realise.
All courts, including the High Court, have jurisdiction to deal with constitutional matters, so the new rules make provision for this.
Under rule 10, plaintiffs and applicants who intend to raise a constitutional issue will have to give written notice to the Registrar of the High Court when they file their papers, and the Registrar will post up the notice on a special notice board for 15 days (which actually means three weeks because Saturdays, Sundays and public holidays are excluded – another trap for the unwary).
This will give interested persons an opportunity to file papers in the case as friends of the court.
At the end of the rules the procedures for making constitutional applications and references are laid out in rules 107 and 108. Rule 107 envisages constitutional issues being brought to court by way of application, and does not cater for such issues being raised in civil actions – which may happen.
As we have already said, the new rules are not user friendly. Procedural law is complex, however, and it is difficult to see how the rules could have been made really simple.
That criticism aside, the new rules are to be welcomed as a very useful and valuable consolidation and updating of the law. -Veritas Zimbabwe