The ManicaPost
Trust Maanda
Post Correspondent
A court application procedure is one in which the person, referred to as the applicant instituting the legal claim, commences the legal proceedings on the basis of an affidavit to which he or she may attach supporting evidence.
The procedure is based on the applicant’s affidavit in which he or she states the claim against the opposing party, known as the respondent.
The procedure is different from a trial procedure.
In a trial procedure, the one who brings the claim, known as the plaintiff, files some summons (in plural, summonses) with the court and serves it to the opposing party, the defendant.
The defendant then files his or her defence after following all the laid down procedures.
At a trial, the parties give oral evidence before the trial officer.
The trial procedure is used where there are material disputes of fact which can only be resolved by oral evidence.
The general rule in court applications is that an applicant must stand or fall by his or her founding affidavit and the facts alleged therein.
The founding papers are the foundation of the application.
They contain the facts which the respondent is called upon to respond to.
Therefore, an applicant for relief must make his or her case and produce all the evidence he or she desires to use in support of it, in his or her affidavit filed with the notice of the application.
The applicant is not permitted to supplement the founding affidavit in his or her replying affidavit.
An applicant may not, without any exceptional circumstances, produce annexures in the replying affidavit.
These must be produced in the founding papers to allow the respondent to comment upon them in his or her notice of opposition.
Production of the annexures after the respondent has filed his or her response is impermissible at law.
Where an applicant is relying on a disputed fact whose proof lies in the memories of witnesses to the fact, it is ill advised for such an applicant to proceed by way of application.
That party should proceed by way of summons in order to allow for the matter to be heard at a full trial where oral evidence can be led.
Where the applicant proceeds by application procedure where there are material disputes of fact, the court has a discretion either to refer the matter to trial for oral evidence to be led or to dismiss the application.
The court normally opts to dismiss the application where, at the time the application was made, the applicant was aware of the material disputes of fact, but proceeded to file an application regardless.
In Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232, the court said proceedings should not be initiated by court application, otherwise known as notice of motion, when there is likely to be a conflict in the evidence or where the claim is not liquid.
The courts take a robust view of conflict of facts, and where the issue can be resolved on the papers, despite apparent conflicts, the court will proceed to determine the matter on the papers filed.
The court has a wide discretion whether or not to determine the matter on the papers filed in the application proceedings where the disputes of fact alleged are not such that the dispute cannot be resolved without the leading of oral evidence.
The dispute of facts must not be fanciful or not connected to the dispute to be resolved.
It is not every dispute of fact that is material to the issues that are for determination.
The court must first ascertain whether or not there is a real dispute of fact. Makarau JP (as she then was) in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) observed that: “A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”
The respondent’s defence must be clear and cogent. A bare denial of the applicant’s material averments is not sufficient.
Merely alleging a possible dispute of fact is not conclusive of its existence.
The opposing papers must show a clear dispute of fact incapable of resolution without hearing oral evidence.
Generally, in application proceedings, the courts should take a robust and common-sense approach to disputes of fact and to resolve the issues before them despite the apparent conflict.
The prime consideration is whether it is possible to decide the matter on the papers without causing injustice to either party.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
