The High Court (Amendment) Rules,2024 (No. 2), SI 81 of 2024

Precis

“It is trite that the rules are made for the court and not the court for the rules. The ultimate aim of the rules of court is to achieve justice between the parties. Rules of the court should therefore be applied to ensure as far as is possible, that the real dispute between the parties is aired, that the parties are treated on an equal footing, that the proceedings are completed expeditiously and inexpensively and that real justice is done between the parties” – Makarau J (as she then was) in Stuttafords v Madzudzu HH 33/2003.

Introduction

The High Court Amendment Rules, 2024 (No. 2) (“2024 Amendment”) published under Statutory Instrument 81 of 2024 ushered a number of changes in the High Court Rules and the landscape of practice and procedure. The key changes are detailed hereunder.

Repeal of SI 153 of 2023

The 2024 Amendment repealed the High Court (Amendment) Rules, 2023 (No.1) SI 153 of 2023 (“the 2023 Amendment”).

Creation of an IECMS account

The 2024 Amendment inserted Rule 15A which mandates litigants and their representatives to first create an account on the Integrated Electronic Case Management (“IECMS”) before accessing this platform.  In creating an IECMS account, litigants and representatives are required to provide the Registrar with all mandatory information. Any changes in the mandatory information so provided must be relayed to the Registrar within 48 hours of the changes. Providing the Registrar with a telephone number and an email address is mandatory.

In terms of Rule 15A(2), a person with an IECMS account must preserve the integrity and security of his or her account and no liability shall attach to the IECMS platform’s administrators for any failure to preserve such account.

Access to IECMS

In the repealed 2023 Amendment, access to the IECMS platform was limited to subscribers of approved service providers. An approved service provider meant “Econet, NetOne, or Telecel or any other service provider specifically identified in Practice Directions issued from time to time as being a service provider whose subscribers are enabled to access the IECMS platform.” The 2024 Amendment repealed the restriction of access to IECMS, and widened the scope of persons who may access the platform. This means any person, even those who are not litigants in the proceedings, with a court generated link can access the IECMS platform, regardless of their service provider. Rule 15B (2) states that “Members of the public who are not parties to the proceedings in question, shall be allowed access to the virtual hearing proceedings through a court generated link, unless the court orders otherwise.”

Filing

In the 2023 Amendment, “filing” meant electronic or physical filing. The 2024 Amendment does not refer to physical filing. It simply states that filing “includes” electronic filing. The word “includes” when it occurs in interpretation clauses in contradiction to the word “means” normally suggests enlargement of meaning rather than exhaustive – CIR v De Beers Holdings (Pty) Ltd 1984 (3) SA 286 (T); ITC 1394 (1984) 47 SATC 119 (Z) and Dilworth v Commissioner of Stamps [1899] AC 99.

Therefore, physical filing of pleadings and processes has not been done away with. This means that there is nothing in the Rules that stops the Court from requesting any pleading or process to be physically filed.

Pagination and indexing of electronic documents, and format of pleadings and other legal documents

All pleadings and documents filed in connection with a particular matter must be contained in a single PDF document which must be identical to the hard copies of the document. This means that a litigant or a Legal Practitioner must keep hard copies of pleadings which correspond with those filed electronically. The pagination of electronic pleadings and documents must appear at the top of the page on the right. The Applicant or Appellant must create an index of all pleadings and documents filed electronically, which index must be identical to the index of the hard copies.

The format of the pleadings and documents presented for filing to the court shall be in paragraphs, and the “Times New Roman” font type, size 12, and a line spacing of 1.5 must be used for all pleadings and documents. When faced with a pleading or document that does not comply with the format stated above, the Registrar has no option than to reject the pleading or document.

Establishment of E-filing Centres

The 2024 Amendment establishes e-filing centres with internet access and dedicated computers or electronic gadgets at each High Court station, and every Magistrates’ Court station. The e-filing centres are accessible to Legal Practitioners and represented or unrepresented litigants at no cost.

Electronic payment of court fees

In terms of Rule 15A(5), the IECMS platform must allow payment of any court fees to done electronically, in addition to any other mode of payment. Physical payment of filing fees is still recognized by the Rules.

Service of Process through Sheriff

Rule 15(5) states that, any party required to serve process through the Sheriff shall deliver to the Sheriff a physical copy of the process within 7 days of the request, together with as many copies as there are persons to be served, failing which the request shall be deemed abandoned.

Filing of Proof of Service

Proof of service of any document required to be served must be lodged with the Registrar in all cases within 48hrs after such service. The High Court Rules, 2021 did not provide a time limit for filing proof of service. When service of pleadings or processes is done electronically by way of email, a sent status report shall be deemed to be prima facie proof of electronic service.

Authentication of electronic communication

The authentication of electronic communication must be effected by means of electronic signatures and certified backup copies of the communication must be kept in paper form or other acceptable means as may be directed from time to time by the Chief Justice.

Hearing

The definition of a “hearing” has now been expanded. Rule 2 of the High Court Rules, 2021 did not define a hearing. The 2023 Amendment defined a hearing as “an electronic or physical hearing”. Rule 2 of the 2024 Amendment defines a hearing as “court proceedings conducted in person, and includes court proceedings conducted by audio-visual means in which the court or Judge, court staff, legal practitioners, litigants, members of the public and the media participate or follow, as the case may be, simultaneously through a court-generated link.”

The 2024 Amendment does not take away physical hearings. Rule 56C provides that the IECMS platform shall be availed for parties to use on a voluntary and consensual basis, subject to the Court’s power to direct that, in the interests of justice, a particular case shall be heard virtually.

The agreement of the litigants to have a virtual hearing of their matter must be embodied in writing and signed jointly by them and lodged with the Registrar no later than ten days before the proposed virtual hearing. If the litigants do not agree as to the nature of proceedings, the Registrar must refer the matter to the judge in chambers for an appropriate determination.

The repealed 2023 Amendment provided that the IECMS platform could be accessed from locations within or outside Zimbabwe. Although there is a departure from the exact wording of the 2023 Amendment, the 2024 Amendment does not make it a requirement for litigants to be within the physical jurisdiction of the Court in order to access a virtual hearing. This means that litigants can participate in virtual hearings from anywhere in the world unless the Court directs otherwise.

Principles guiding the conduct of virtual hearings

Rule 56B(1) of the 2024 Amendment sets out the principles that guide virtual hearings as follows:

      i.        Facilitation of expeditious, effective, seamless and real-time conduct of virtual court proceedings;

    ii.        Litigants and representatives are entitled to access any e-filing centre nearest to them to participate in the virtual court hearing;

   iii.        The platform must ensure security, authenticity and where necessary confidentiality of virtual court proceedings;

   iv.        The Registrar must take measures to resolve any technical challenges experienced during the conduct of the virtual court proceedings;

    v.        Technical assistance to be afforded to litigants who need it before and during the virtual court proceedings; and

   vi.        The platform must incorporate backup facilities in case of power outages and interruptions of connectivity.

Hybrid virtual hearings

A hybrid virtual court hearing is one in which either one litigant may be physically present at the location where the court is sitting, while the other litigant accesses the court hearing using the IECMS platform from a different location. A hybrid virtual court hearing is also one where the litigants participate virtually using the IECMS platform from different remote locations. 

Default in virtual hearings

If a litigant fails to attend a virtual hearing, having agreed or been directed to participate in the hearing, and there being no technical default attributable to the IECMS platform itself, subject to proof of notification of the notice of set down, such litigant shall be subject to default judgment proceedings. It shall not be competent for the litigant to plead lack of the requisite technical resources, if it has not raised that issue with the Registrar before the start for the virtual court hearing.

Conclusion

The High Court Rules as amended by SI 81 of 2024 have revolutionized the practice and procedure at the High Court and have enhanced access to court through virtual court hearings and electronic filing of court pleadings and documents. Ease of access to the IECMS platform by litigants and members of the public is made possible by the introduction of e-filing centres with internet access and dedicated computers or electronic gadgets at each High Court station, and every Magistrates’ Court station, which are accessible to Legal Practitioners and represented or unrepresented litigants at no cost.