PRESENTATION BY HON. JUSTICE J. M. MAFUSIRE · 2019-04-04 · international directory of leading...

PRESENTATION BY HON. JUSTICE J. M. MAFUSIRE

Dispensing World Class Justice 1

JOINT BAR-BENCH COLLOQUIUM

ELEPHANT HILLS HOTEL, VICTORIA FALLS

29 NOVEMBER – DECEMBER 2018

DRAFT HIGH COURT (COMMERCIAL DIVISION) RULES

PRESENTATION BY JUSTICE JOSEPH MARTIN MAFUSIRE


[a] Introduction

1 At the outset I express my humble appreciation for the trust and confidence reposed in me by

being invited to make a presentation at this majestic gathering of eminent legal minds from

both the Bar and the Bench. In order to justify that trust I devoted an appreciable amount of

time assembling all manner of materials and consulting all shades of opinion to come up with

a composite and compact paper. I trust that at the end of my presentation you shall find

something useful to take home with you.


TAKE-AWAYS


2 The invitation to me by the Hon Chief Justice was to make a presentation on the topic: “Draft Commercial Court Rules”. That was all there was to it! It was a blank cheque, though signed!


3 Now with a blank cheque you fill in the amount yourself. It can be any

amount. But in this case it couldn’t be any amount. There were

pointers. Firstly, the invitation said Mr Edwin Manikai of Dube,

Manikai and Hwacha, and Mr Addington Chinake of Kantor &

Immerman would be discussants. Everyone knows these are

distinguished and renowned commercial lawyers who, when I

last checked, had a listing in Chambers Global, a reputable

international directory of leading business lawyers around the

globe.


MR E. MANIKAI


MR A. B CHINAKE


4 Further, the invitation said Hon Hlatshwayo, Judge of the Supreme Court and

Constitutional Court of Zimbabwe, would be my co-presenter!

Hon Hlatshwayo JA , JCCDispensing World Class Justice 9

5 Immediately I realised that the amount on that blank

cheque had to be real. It had to have value. It had to be

in a functional currency and one that would not

depreciate with time. At first I took it as a daunting task.

I still do. But I had to justify the confidence reposed in

me. To psyche me up I reminded myself that in my

previous life at the Bar I had also been listed in

Chambers Global!


[b] Parameters6 So as I set about filling in the blank cheque I set out parameters as follows:

6.1 What is the motivation for setting up a commercial court in Zimbabwe?

6.2 Which other jurisdictions in the region and elsewhere have set up commercial

courts, and what has been their experience?

6.3 What is the legal framework in Zimbabwe to govern the commercial court?

6.4 How far do the draft Commercial Court Rules go in satisfying the underlying

aspirations for setting up the court?

7 Each of these parameters can easily be a thesis for detailed study. But because of

space and time limitations I will, in this presentation, just pick on the main

things.


[i] What is the motivation for setting up a commercial court in Zimbabwe?

8 Efficient justice delivery is at the core of a functional economy. The task

to attract foreign direct investment to Zimbabwe in this global

economy cannot be left to commerce and industry alone. The

judiciary can in its own sphere of operation, determine the readiness

with which Zimbabwe is truly open for business. A judiciary that is

clogged, lethargic or static, pedantic, inaccessible and too technical

drives away business and capital.


9 As in other jurisdictions, the motivation for setting up a commercial court in Zimbabwe includes the need to ensure:

9.1 efficient justice delivery;

9.2 adoption of local, regional and international best practices;

9.3 expeditious resolution of commercial disputes;

9.4 certainty and uniformity in decision-making;

9.5 development of specialist procedures to deal with unique requirements of the special courts;

9.6 improvement of skills amongst judges and practitioners alike.


10 Like everything else, it is some underlying conditions that may force an institution or agency to

evolve or reform. Revolutions do not just happen. They are conceived and shaped by conditions

obtaining on the ground. What is hoped to be achieved by the setting up of a commercial court is

the delivery of justice to the business community:

10.1 that accords with common business sense;

10.2 that reposes that much confidence as to reduce over reliance on ADR or offshore

litigation;

10.3 that oils the wheels of industry and commerce rather than hamper or frustrate

them;

10.4 that grasps the factual and legal nuances in commercial disputes thereby

eliminating or minimising wayward decisions and unnecessary appeals;


11 Judicial specialisation happens all the time. It may be a question of degree. On

the one end, a particular judge or judges, or a particular court room may be set

apart for dealing with particular branches of the law within the existing set-up

(sometimes referred to as judge or court dedication or reservation). On the other

end, a completely new division, with a specific judge or judges, in a separate stand-

alone building, with completely new or modified rules of procedure, and a

separate registry may be set up even though still remaining as part of the old

establishment (sometimes referred to as court specialisation).


12 Where they have been set up in other jurisdictions, commercial

courts have been given a distinct character that is

underpinned by, among other things, custom-built court

houses, a separate registry, custom-made rules of

procedure, separate judges who undergo continuous in-

service training locally and abroad, and so on.


13 With Zimbabwe opening up for business, comes increased

business interactions and a concomitant rise in disputes of a

commercial nature. Reported discoveries of oil and gas in the

Muzarabani area of Mashonaland Central in the last few

months, undoubtedly open up new branches of law with

possibly whole new types of disputes. The Judiciary must

attune itself to the task of handling and disposing of such

disputes speedily and efficiently.


MUZARABANI OIL RIG


14 That is not to suggest or insinuate that not all disputes are important.

A man or woman seeking a decree of divorce; the victim of a rape seeking justice; a

dependant claiming compensation for loss of support following the death of a

breadwinner in a traffic accident; a bottling company seeking an interdict against a

competitor for passing off; a chain store desperate for urgent delivery of

merchandise in time for the festive season, are all important matters in which the

judiciary is called upon to deliver justice fairly and quickly. But if it has not re-

organised and attuned itself to deal effectively with the demands of the various

types of legal disputes, it may find its entire system clogged up resulting in

widespread frustration, ridicule, derision and even corruption as litigants jostle to go

to the front of a dysfunctional system.


15 Where commercial courts have been set up in other jurisdictions,

at times there were some morbid fears that specialisation would

create entrenched elitist clubs of judicial officers and staffers

who with time become pompous, insular to new developments

elsewhere and dedicated only to serving a largely

bourgeoisie minority to the exclusion of the expansive and

struggling proletariat. However, once such fears had been

overcome, and the courts were set up, nothing but glory and

splendour was the feedback. In Zimbabwe we cannot continue to

miss out.


JUBILATION ON SUCCESSFUL OPENING OF COMMERCIAL COURT


[ii] Which other jurisdictions in the region and elsewhere have set up commercial courts and what has been their experiences?

16 In my desktop research I have sampled (not listed) a few (not all) of the

common law jurisdictions around the globe that have set up specialised

courts to handle commercial cases, or some variants of such courts, such

as the Specialised Commercial Crime Court of Pretoria, South Africa,

which was set up in 1999, and the Singapore International Commercial

Court in 2015. These are:


16.1 England 1895

16.2 Johannesburg, South Africa 1993

16.3 Uganda 1996

16.4 Pretoria, South Africa (the Commercial Crimes Court) 1999

16.5 Tanzania 1999

16.6 Ghana 2005

16.7 Rwanda 2007

16.8 Malawi 2007

16.8 India 2015

16.10 Singapore International Commercial Court 2015


17 The others are Burundi; Kenya; Zambia; Democratic Republic of Congo; Lesotho

and Mozambique.

18 I have sampled a few articles or reports on some of these courts, for example,

Uganda [Annual report for year ending December 2012 by Head of Court, Hon Justice Kiryabwire]; Pretoria’s Specialised Commercial Crime Court [Justice Through Specialisation by Anthony Altbeker] and Ghana [Ghana – Establishment of the Commercial Court by Sandra Cofie, December 20017] . My overall conclusion

from those reports or articles is that, perhaps except for England, specialised

commercial courts are still evolving as a judicial concept. However, there has

been widespread endorsement of, and enthusiasm for, such courts. They are

recognised as affording a country the competitive advantage required in

attracting both domestic and foreign direct investment.


19 In most jurisdictions, the rules or laws governing the

operations of the commercial courts undergo constant

revision. For example,

19.1 India has this year, 2018, introduced a Bill to amend the Acts

governing, inter alia, the commercial courts in such a

manner as to broaden the scope of the commercial

disputes the courts will handle[Bill No. 123 of 2018].


19.2 As recently as last month (3 October 2018), the Judge

President of the Gauteng Divisions of the High Court of

South Africa issued a Commercial Court Practice

Directive aimed at promoting the efficient conduct of

litigation by streamlining certain procedures and

introducing others like case management.


[iii] What is the legal framework in Zimbabwe for setting up the commercial court?

20 In s 164 and s 165 the Constitution of Zimbabwe says every judicial official is required:

20.1 to be independent;

20.2 to apply the law impartially, expeditiously and without fear, favour or prejudice;

20.3 to do justice to all, irrespective of status;

20.4 to ensure that justice is not delayed;

20.5 to ensure that they perform their judicial duties efficiently and with reasonable promptness.


21 Section 171(3) of the Constitution empowers the enactment of an Act

of Parliament providing for the High Court being divided into

specialised divisions. However, every such division must be able to

exercise the general jurisdiction of the High Court in any matter

that is brought before it.

22 Thus, the fear of a commercial court creating a specialist club

of elites catering for only a bourgeoisie minority to the exclusion

of the vast majority is quashed right at the constitutional level.


23 Currently the specialised divisions of the High Court are:

23.1 the Electoral Court (constituted in terms of the Electoral Court Act [Chapter 2:13]);

23.2 the Fiscal Appeal Court (constituted in terms of the Fiscal Appeal Court Act [Chapter 23:05]);

23.3 the Special Court for Income Tax Appeals (constituted in terms of the Income Tax Act [Chapter 26:06]);

23.4 the intellectual Property Tribunal (constituted in terms of the Intellectual Property Tribunal Act [Chapter 26:08]); and

23.5 the criminal, civil and family law divisions which although established administratively, have been given statutory

recognition by s 5 of the Judicial Laws Amendment (Ease of Settling Commercial & Other Disputes) Act No. 7 of 2017 (“the

Amendment Act”).


24 The Amendment Act became law on 27 June 2017 when it was

gazetted. Its purpose was to amend the High Court Act

[Chapter 7:06], the Magistrates Court Act [Chapter 7:10] and

the Small Claims Court Act [Chapter 7:12] to facilitate the

setting up of commercial courts at those levels of the judiciary.

25 A new s 46A inserted in the High Court Act by the Amendment

Act empowers the Chief Justice, in consultation with the Judge

President, to create a specialised division of the High

Court, to specialise in the adjudication of cases in the fields of,

among others, commercial law.


HON. CHIEF JUSTICE L. MALABADispensing World Class Justice 33

HON. JUSTICE CHIWESHE JPDispensing World Class Justice 34

26 Operationally, the Judge President “shall” assign at least two judges of

the High Court, on a rotational basis with other judges of the High

Court, or on such basis as he may arrange with the judges in question,

to be judges of a specialised division for such periods as the Judge

President shall specify.

27 Thus by s 46A above, the fear of creating an elitist court is also

quashed at the operational level. There may be debate whether

or not specialisation can ever be truly achieved in a system of

rotation givenboth the natural life expectancy of a Judge and the

tenure of their office as governed by the Constitution.


28 However, it appears s 46A is some safeguard against increased familiarity and

unhealthy cosiness amongst commercial court users. Such kind of fears dogged

the setting up of specialised courts in other jurisdictions. It was felt that a court

dedicated to the handling of particular types of cases serviced by the same

judges and the same practitioners could become corrupt.

29 The Amendment Act introduced sub-section (2) to s 47 of the High Court Act.

The new sub-section introduced the concept of “virtual sittings” in civil

proceedings. This entails the use of electronic communication amongst all

parties during proceedings thereby dispensing with their physical presence.


30 The Amendment Act introduced, in s 56 of the High Court Act,

the service of process and the authentication of documents by

electronic means and the digitalisation of records in the Registry.

31 Increased use of technology in the service of process, the filing of

records and the hearing of cases has been a peculiar feature of

commercial courts where they have been set up in other

jurisdictions. Currently the High Court Rules are undergoing

extensive review to make the Court more techno-savvy.


[iv] How far do the Draft Commercial Court Rules go in satisfying the underlying

aspirations for setting up a commercial court?

32 From my desktop research, it seems our Draft Commercial Court rules are

modelled largely along the Tanzanian Commercial Court Rules [The High Court (Commercial Division) Procedure Rules, 2012, GN No 250 of 2012].

33 As a general comment, the Draft Rules bring exciting innovations into the

adjudication of disputes. As a further general comment, the Rules are a

very good start. Any further improvements can only be informed by

experiences gained on the ground. At the moment, they seem to embrace

the regional and international best practices in the resolution of

commercial disputes. The Commercial Court should now be all systems

go! Dispensing World Class Justice 38

34 However, I do have some comments or suggestions on some aspects of the Draft Rules. I

will draw attention to particular areas as I go.

34.1 Order 1 R 2(2): Old High Court Rules to cover any lacuna

Order 1 r 2(2) of the Draft Rules invokes the current High Court Rules to fill up any gap not

covered by the Draft Rules. The Tanzanian Rules have a similar provision. To me this seems

such a good device. It caters for such aspects as might have been overlooked by the

draftsman. Although under the guise of interpretation judges do have the

power to close any such gaps in any legislation and in accordance with the famous

adage “rules are made for the court, not the court for the rules” [Republikeinse

Publikasies v Afrikaanse Pers Publikasies 1972 (1) SA 783, @ 783A – B; Chelsea

Estates & Contractors CC v Speed –O – Rama 1993 (1) SA 198 (SE) @ 201G]. However,

this is a power most of them are hesitant to exercise indiscriminately.


[34.1 contd] But a contrary opinion is that there should be minimal

reliance on the existing High Court Rules if we are to move

forward. It is suggested we should design completely new

rules that eliminate delays and the numerous problems that

our Old Rules present. Perhaps this is a point for debate.


34.2 Order 1 R 3: Definition of ‘Commercial Dispute’

34.2.1 Curiously, the Amendment Act defines the term ‘commercial dispute’ only for the purpose of the magistrates court, but not for the High Court. In section 6 the Amendment Act defines ‘commercial dispute’ to mean:

“a dispute of a civil nature arising out of a transaction in the course of business, including but not limited to:

the formation, management, transfer or dissolution of a business entity;

the contractual relationship of a business entity with another such entity or with another person or persons undertaken in the course of business;


the contractual or delictual liability of a business or of a person engaged in a business that arises in the course of business activities;

disputes primarily involving banking and financial services;

the restructuring or payment of business debts;

the enforcement of an arbitral award of a business character.”


34.2.2 The Draft Rules define ‘commercial dispute’ in r 3. As far

as I can see, the difference between the definition in the

Amendment Act and in the Draft Rules is largely cosmetic. I

consider both definitions to be fairly sufficient for the

purpose. They compare very well with, and even adopt,

the definition of the same term in other jurisdictions.

However I would suggest three additionals:


“the exploitation of oil and gas reserves or other natural resources”, in anticipation of the Muzarabani Oil Rigs!

Muzarabani Oil Rigs


“any other dispute the Judge President may designate as a

‘commercial dispute’ upon request by any of the parties”. This is

informed by the Gauteng Commercial Court Practice Directive referred to

above. It would also cater for the transitional period where some

commercial disputes may be pending in the other divisions of the High

Court.

“insolvencies; insurance claims; competition law; Companies Act

disputes; pension fund disputes.” This expands the area of jurisdiction

to ensure that all possible commercial disputes are covered.


34.3 Order 2: Administrative Provisions

The word ‘commercial’ should be inserted in r 4(1) before the

word ‘disputes’ so as to make it clear that the jurisdiction being

conferred on the Commercial Court is over ‘commercial

disputes’ as opposed to general disputes.


34.4 Order 3: Institution of Suits

34.4.1 Draft Rule 5(2) obviously needs to be re-phrased. The current wording seems mixed-

up.

34.4.2 Draft Rule 6 invokes the Form 2 summons of the Old Rules. This type of summons is for

both a debt or liquidated demand and unliquidated claims. But unlike in the Old Rules

where the summons and declaration may be issued at separate times, with the dies

induciae being reconstituted, the proviso to Draft Rule 6 not only requires that the

summons and the declaration be filed together, but also that the plaintiff’s summary of

evidence be filed together with them as well.


34.4.3 The requirement that the summons, the declaration and the summary

of evidence shall all be filed together at the same time is a new

innovation copied from other jurisdictions. This to me is a good thing.

Among other things, it compels a party, right at the outset, to think

through their case thoroughly before instituting it. That way they are

in a greater state of preparedness than the current situation

where even with inadequate instructions a legal practitioner can plunge

his/her client into costly litigation, or rush to enter an appearance to

defend without sufficient instructions, only gathering the necessary

evidence in the course of further pleadings or even at trial. In its

small way, this provision speaks to the expediency with which

commercial disputes are required to be resolved.


34.4.4 However, a contrary opinion is that the requirement is not a

good idea. It is said to be unnecessary. It is argued that it should

only be in an application procedure that a party should be

required to put forward both their primary facts and the

evidence when commencing action. Evidence should not be

filed before the opponent has pleaded. This may be another

point for debate.


34.4.5 Draft Rule 7 requires the plaintiff to file, along with the

summons, his e-mail address, fax, telephone or cellular phone

number and that of the defendant or their legal practitioners

to the extent known. This is to facilitate ease of service of

process. Personally I used to do it when I was in practice,

particularly in relation to the defendant. I realised the deputy

sheriff was increasingly resorting to calling the defendant on

the telephone to come and collect his/her summons. It is a

good development which should be recommended for all the

other divisions of the High Court.


34.4.6 The Draft Rules make no provision for the request for further

particulars. However, they do not expressly eliminate the

procedure either. The right to request further particulars has

largely been abused in practice. Sometimes the request is no

more than a series of cumbersome interrogatories that make

inquisitorial forays into an opponent’s state of mind to annoy or

harass them, or to fish out unnecessary detail, or to delay the

progress of a case.


[34.4.6.contd]If the summary of evidence accompanies the summons and

declaration, the request will become superfluous and vexatious. I

understand the Uniform Rules of South Africa did away with the

request for further particulars prior to pleadings in 1988 by

introducing pleadings requirements that relaxed the prohibition

against pleading evidence. The Tanzanian Rules do not provide for

the procedure. I think the Draft Rules should be unapologetic and

unequivocal in excluding the right to request further particulars for

the purposes of pleading. If they do not do so, smart practitioners

may still drag the procedure back into operation via the lacuna

provision that allows the use of the Old Rules.


34.4.7 I propose a model summons for the commercial court that

incorporates the new innovations. In the Old Rules, the

Form 2 summons is for both an unliquidated and a

liquidated claim. The Form 30A summons is for a

matrimonial claim. The Form 2 summons can easily be

adapted for a commercial dispute.


34.4.8 Draft Rule 8 provides for the keeping of a register of commercial

cases. The Gauteng Commercial Court Practice Directive aforesaid

empowers the Judge President, or his Deputy, to determine, upon

application by either party and after affording the chance to make

representations, whether a case should be allocated as a commercial

case or not. I think a similar innovation is required in the Draft Rules.

Where the Registrar has doubts whether a case that has been

instituted in a commercial court discloses a commercial dispute or

not she can, with reasonable dispatch, refer it to the Judge President

for a decision.


34.4.9 Draft Rule 9 gives 7 days as the period for entering an

appearance to defend. I notice that the general standard

time frame is now 7 days, as opposed to 10 of the Old

Rules. This is purposeful. It is part of the efforts to

quicken the resolution of disputes.


34.4.10 In terms of the Old Rules the defendant has 10 days from the date of service

of summons to enter an appearance to defend. As already pointed out above,

the Draft Rules have shortened the time to 7 days. An interesting feature is

the exclusion, in Draft Rule 11(3), of the proviso to r 119 of the Old

Rules. In terms of this proviso of the Old Rules, a defendant has at least 20

days to file his/her plea if the summons was served together with the

declaration. I see that the proposed amendments to the Old Rules seek

to tweak around with this time frame by giving 10 days from the date

of appearance to defend.


[34.4.10 contd]This means that where, for example, a defendant enters an

appearance to defend the same day that he/she receives the summons

and declaration, he can no longer insist on his first 10 days to enter an

appearance to defend and the next 10 days to file his/her plea. The draft

amendment to the Old Rules says the 10 days for filing a plea begin to

run from the time of the appearance to defend. But the Draft Rule 11(3)

curtails everything to 10 days from the service of summons because the

summons, the declaration and the summary of evidence are all served

together. That is good.


34.4.11 Draft Rule 12 provides for both manual and electronic

signatures on a summons. Personally I have been signing

all my judgments electronically. This is all part of the

modernisation which is the hall-mark of the new Court.

34.5 Order 4: Service of Process

Draft Rule 13 provides for electronic service of process. Bit by bit we are entering into the world of e-justice.


34.6 Order 5: Pleadings generally

34.6.1 Draft Rule 15(1) prescribes that for the pleadings presented for filing,

the font type shall be Times New Roman, size 12 and 1.5 line spacing,

with the pleading spanning not more than 10 pages. This provision aligns

pleadings to the current judgment format in the superior courts. Modern

computers probably have unlimited font types, I guess for different uses.

Some stylish fonts, e.g. Mistral, Monotype Corsiva or Blackadder ITC, just to

mention a few, may be good for an ice-cream advertisement but may

strain the aging eyes of a judge. The Draft Rule ensures uniformity in all

court documents.


34.6.2 As judges, we frequently have to plough through long-winded

pleadings that are repetitive and full of broken grammar or poorly

constructed expressions. It is frustrating. It distracts attention. The 10

page limitation is just but a guide. It should force practitioners to think

through carefully and compress into precise and concise statements

what they are putting down on paper. The limitation aspires to

encourage practitioners to process and edit their client’s raw data and

be methodical and frugal in their presentation. It is a good innovation.


34.6.3 Draft Rule 15(2) empowers the Registrar to reject any pleading that does not conform to the

prescribed requirements.

34.6.4 However, there has been stinging criticism of this requirement. It has been argued that prescribing

the font type in a pleading amounts to overreaching and that page limits present problems

especially in complex matters. It is said the Rules of the UK Commercial Court limit page lengths to 25

for declarations and pleas. This may be another point for debate. But perhaps the current Draft Rule

15(1) may somewhat be tweaked around to relax it slightly by adding the words “at least” so

that instead of it saying inflexibly “… shall not be in more than ten pages”, it may say “ shall at

least not be in more than ten pages.” Or “shall” can simply be replaced with “may”.


34.6.5 The other criticism to Draft Rule 15 has been that the

power being bestowed upon the Registrar to reject a

pleading that is non-compliant should be removed

because he/she should never enjoy such authority to reject

court documents presented for filing. This is judicial power

that should be exercised by judges only.


34.6.6 A further suggestion has been made that more rules should seek to reduce

or regulate the length of the other documents presented for filing. For

example, heads of argument in applications should not exceed 40 pages. In

all interlocutory matters where heads of argument are filed, they

should not exceed 15 pages. Perhaps I identify with these sentiments

quite readily because in Vukutu (Pvt) v Kwinje & Anor HH 364-16 I began

my judgment with the following complaint:

“The applicant’s heads of argument spanned over fifty-five pages. As I waded

through them, a certain article in the journal, Advocate, of December 2001, by LCT

HARMS, Judge of the Supreme Court of Appeal in Bloemfontein, South Africa, with the

eye-catching title: “What irritates judges?” drifted into my mind.”


34.6.7 Draft Rule 17 streamlines the procedure for rescission of judgment. I note

that the time to apply for rescission is drastically reduced to 10 days from the

1 month of the Old Rules. I also note that a rescinded judgment

automatically revives where the plea remains outstanding after the lapse of the

time given in the rescission, and that there is no second bite of the cherry in that in

respect of a single judgment, rescission may only be applied for once and may only

be granted once.


34.7 Order 6: Pre-trial and Rescheduling Conference

34.7.1 A kind of case management system is introduced under this

Order. A Judge becomes seized with the matter and from then on

he/she becomes actively involved in, among other things, the

pace at which it progresses towards trial. The procedure

streamlines the traditional role of a Judge at pre-trial procedures

and purposefully empowers the dismissal of a claim or the

striking out of a defence for non-compliance with directions

or other requirements.


34.7.2 Some jurisdictions have integrated into their systems varying degrees of

court sanctioned mediation proceedings or ADR. The Indian Amendment

Bill referred to above seeks to introduce elaborate provisions for mediation

and settlement of disputes. The Tanzanian Rules facilitate some kind of

court supervised payment plan procedures whereby a defendant who

admits the claim may request for time to pay at agreed rates of

instalments, with an acceleration clause that makes the entire claim due,

payable and executable in the event of a default on any one instalment.


34.7.3 Personally I do not as yet advocate for the court-sanctioned

mediation. Maybe over time it may be found useful. But I think an

integrated payment plan procedure is a good thing. In the Old Rules,

Order 22 governs offers and tenders of settlement. Where a sum of

money or the performance of some act is claimed, any person who

considers himself/herself liable may make a written offer or written

tender to pay or perform. In the event of a default, the claimant can

apply for judgment through the Chamber Book. I see that the Draft

Amendments to the Old Rules seek to tighten the procedure. But what I

am proposing under the payment plan procedure is something more direct

and quick. It will not just be a mere offer or a mere tender, but actual payment

and execution in the event of a default.


34.8 Order 7: Case Management

Draft Rule 24 gives a time line of 10 to 12 months for

the completion of all commercial cases. This is

aspirational. It is in line with best practices

elsewhere.


34.9 Order 7: Appearance, Hearing & Examination of Parties

34.9.1 An interesting provision under this Order is Draft Rule 26. A huge

responsibility is thrust on the shoulders of the legal practitioner who takes it upon

himself to appear in the Commercial Court. He/she should be fully acquainted

with the facts. Apart from prosecuting the claim or defence, he/she should

have the full authority to settle the case, including entering into agreements that

bind his/her client on both substantive and procedural issues. He/she

risks an order of costs de bonis propriis if he/she should be found deficient

in any respect. I like this. Among other things, it should cut out some requests

for postponements by a legal practitioner for the purposes of taking further

instructions.


34.9.2 However, there is a contrary view. It is felt that the Draft Rule is unfair. It is

argued that whilst procedural matters may not have many far reaching

consequences, it must always remain the client’s responsibility to determine

his/her substantive rights. It is suggested that the Draft Rule should make the

presence of the client mandatory to ensure there is no injustice. It is also argued

that for large corporate organisations for example, compromising a claim may

involve much wider consultations. It may not be practical for a legal practitioner

to procure advance authority on every conceivable aspect. This may be a point

for debate.


34.9.3 Generally, postponements are a judicial officer’s nightmare.

Ahead of the hearing he/she ploughs through the record

thoroughly and carries out some research especially in complex

cases. He/she will have several other records. The average

record is voluminous. Come the day of hearing, the matter is

postponed because a legal practitioner has double-booked

himself.


34.9.4 In its own small way, Draft Rule 27 tries to minimise or curtail the

incidence of frivolous requests for postponements. Sub-rule (1)

ensures that there is a postponement fee that, unless waived, should be

paid before the hearing resumes. Sub-rule (2) curtails double- booking

by a legal practitioner. But still there is a loophole. Only the Supreme

Court and the Constitutional Court are protected. Counsel that

accepts a double brief for both a High Court matter and a Supreme Court

or Constitutional case leaves the High Court with no option but to

adjourn. It is of course, impractical to eliminate double- booking

altogether, especially where the Supreme Court or Constitutional Court

set down has come after that of the High Court.


34.9.5 Sub-rule (2)(d) of Draft Rule 27 is a brave foray into a litigant’s

constitutional right to representation by a legal practitioner of his/her

choice. It was never an absolute right in the first place. A postponement

shall not be granted by reason of illness or unavailability of a party’s

legal practitioner where alternative representation is available. The

Bar may whinge. But the Bench will be happy. If the judiciary is to

attune itself for expeditious resolution of commercial disputes in line

with international best practices, certain habits just have to give way.


34.9.6 In Draft Rule 30 there is an interesting power reposed in the Court to

direct which witnesses will be required for cross-examination. I guess in

practice, this will be settled at the pre-trial case management

engagements. But the provision serves to emphasise that the judge

in a commercial dispute is not a discrete and distant umpire. He/she

gets into the arena and controls the flow of the match from there.


34.10 Assessors

The Draft Rules have no provision for assessors.

Most jurisdictions do provide for them especially

for complex commercial cases, of course at the

discretion of the judge. It seems a good idea


34.11 Expert evidence

The Draft Rules do not have specific provisions for handling expert

witnesses’ evidence. I guess it is one of those areas resort shall be had

to the Old Rules. Some jurisdictions have elaborate provisions which,

in the main, entail the filing of summaries of expert witnesses’

evidence and the convening of pre-trial meetings for such experts. This

may be a desirable thing to include, especially where witnesses’

summaries are now required to be filed at the outset together with the

summons and declaration. Provision may be made for the filing of the

summaries of expert witnesses’ evidence and the convening of their

meetings at appropriate stages of the proceedings before the trial.


34.12 Urgent Commercial Cases

Our law already recognises commercial urgency. The provisons of

the Old Rules on urgent chamber applications should be adequate.

However, the certificate of urgency may be discarded. Its purpose

seems to have been lost over time [Silver’s Trucks (Pvt) Ltd &

Anor v Director of Customs and Excise 1999 (1) ZLR 490 (H)]


[c] Conclusion

35 The Draft Rules are a good springboard for the Commercial Court to take off from. They are not perfect. Nothing man-made is ever perfect. But I think for now they are adequate. As said before, experiences gained on the ground will be the basis for any further amendments.


PRESENTATION BY HON. JUSTICE J. M. MAFUSIRE · 2019-04-04 · international directory of leading...

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