An Overview to Commercial Litigation in Zimbabwe

The Harare High Court in Enterprises Swanepoel S.A. v Rhine Sports Investments (Pvt) Ltd 2018 (1) ZLR 321 (H) held that, ‘litigation is serious which enjoins courts to deal with genuine cases where the pursuit of justice remains a matter of paramount importance.’

Litigation is the traditional method of dispute resolution used by parties to resolve disputes in a competent court of law, and before a judicial officer, who makes a final and legally binding decision concerning the dispute. The legislature in Zimbabwe has designated the High Court of Zimbabwe which is divided into specialised divisions and the Magistrates Court as commercial courts in the country in terms of which commercial disputes may be brought in the interests of expediting justice delivery and promoting the ease of access to justice.

The Commercial Division of the High Court is a specialised division which has jurisdiction to hear and determine commercial disputes in Zimbabwe. It also has jurisdiction to adjudicate commercial law disputes and hear all appeals and reviews from the Magistrates Court Commercial Division. The Harare High Court in Chemugarira & Others v Zimbabwe United Passenger Company Ltd Pension and Life Assurance Fund & Others HH 330-24 held that, the referral of matters to specific divisions of the High Court, is an administrative arrangement which does not have the effect of stripping other divisions of their original jurisdiction to prescribe over such matters.

The Commercial Division of the High Court of Zimbabwe’s minimum monetary jurisdictional threshold is an amount or value exceeding the monetary jurisdiction of the magistrates’ commercial courts by an equivalent of One United States Dollar (USD$1.00) in the functional currency of Zimbabwe at any point in time. The monetary jurisdiction of the magistrates’ commercial courts is currently USD$50,000.00.

Section 2 of the Magistrates Court Act [Chapter 7:10] and Rule 3 of the High Court (Commercial Division) Rules, 2020 define a ‘commercial dispute’ in Zimbabwe as a dispute of a civil nature, considered by the court to be of commercial significance, arising out of a transaction in the course of trade or commerce, including but not limited to:

• the formation of a business or commercial organisation;
• the formation, management, transfer or dissolution of any 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, other than with a person or persons who are employees;
• 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;
• disputes primarily involving banking and financial services;
• disputes relating to the restructuring or payment of business debts, including business rescue and insolvency;
• the enforcement of an arbitral award of a business of a commercial nature;
• 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;
• disputes arising from the exploitation of oil and gas reserves or other natural resources of a commercial nature;
• 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;
• 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;
• 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;
• the restructuring or payment of commercial debts by or to a business or commercial organisation or person.

People seek the services of commercial attorneys in Zimbabwe for a variety of reasons, but the main, is that they seek legal advice or require the provision of professional legal services. It is fair to say that people engage commercial attorneys for litigation as they are conversant with commercial disputes and the commercial rules of the courts.

The Commercial Division of the High Court of Zimbabwe in Savechem (Pvt) Ltd & Another v Masimba Industries (Pvt) Ltd & Another HH 61-25 at para 10-11 held that:

“Two issues emerge from the above; firstly, the duty falls initially upon the litigant and its legal practitioner to establish if indeed their dispute fits the definition of r3(1) of the Commercial Court Rules. In other words, the selection process commences with some self-governance. Should a litigant fail in, or neglect that duty, then the next gateway is the adversary.

Secondly, should both parties fail, neglect or act complicitly, the court must step in to ensure that the dispute complies with the requirements of r 3(1). Whilst further procedural mitigants are discussed in Rosenfeldt, the key issue is that a matter cannot proceed to be heard in the Commercial Division if it breaches r 3(1).”