The High Court (Commercial Division) Rules, 2020, were gazetted as Statutory Instrument 123 of 2020, and have brought about the establishment of the Commercial Division of the High Court. The rules came into operation on Monday 1st June 2020. In terms of Rule 2, the rules “shall have effect in relation to all proceedings of the Commercial Division of the High Court, including so far as is practicable proceedings pending.” The rules therefore provide for the transfer of all disputes of a commercial nature before the High Court to the new commercial division.


The rules are a welcome development in the ease of doing business approach to commercial transactions. The following explains the most important sections of the Rules:


When is it applicable?
The Rules apply for all commercial disputes in Zimbabwe which would ordinarily fall within the jurisdiction of the High Court. Section 3 defines what a commercial dispute is. The most notable examples are:

1. Formation of a business
2. Contractual liability
3. Disputes involving banking and financial services
4. Enforcement of arbitral awards
5. Insolvency, insurance claims, Companies Act, competition and anti-trust laws
6. Disputes involving the duties of Directors

Monetary Jurisdiction?
Section 3(2) of the Rules states that the Commercial Division will have jurisdiction over disputes that involve amounts that exceed whatever the monetary jurisdiction of the Magistrates Court (Commercial Division) is at any given time by one United States Dollar or its official equivalent. This clause is quite unprecedented but I am of the view that it was added particularly in United States Dollars to reduce the need of having to constantly review the monetary jurisdiction of the Court. One only has to look at what the monetary jurisdiction of the Magistrates Court (Commercial division) is at any given time and if a commercial dispute exceeds such limit by USD$1 or its official equivalent, such dispute falls within the jurisdiction of the Commercial Division.

Electronic Filing
Section 3(4) of the Rules provides for the electronic filing of pleadings which can be done via the court’s website.

Electronic Service
This is provided for in terms of Section 46 of the Rules. It allows the Registrar to serve parties via electronic mail or a web portal using the addresses they would have provided in their business transactions. Litigants must therefore ensure that the electronic addresses they provide in their company documents or before the court are up to date and usable. Section 46(3) goes on to state that a sent report shall be prima facie evidence of successful service of process.


The Court Registry
The court shall have registries in Harare, Bulawayo, Mutare and Masvingo in terms of Section 5(2).


E-court status
The commercial division shall be entirely paperless by its second anniversary in terms of Section 57.


SYNOPSIS

• Overally, the rules provide for an electronic filing mechanism which is easy to understand. It remains to be seen on whether it will be efficient in practice.
• The rules give an alternative dispute resolution mechanism for commercial disputes outside of the conventional courts. If implemented well, this may be a faster and more sophisticated way of dispensing with commercial disputes.
• It is welcome that the court has registries outside Harare. This ensures access to justice on a wider scale for commercial disputes occurring outside Harare.
• In conclusion, the Rules do provide sufficient clarity on the operations of the Commercial Division. What remains to be seen is how the rules will play out in practice particularly on the use of technology in case management and electronic filing & service.

Muvingi & Mugadza is a proud member of the Alliott Global Alliance (an international worldwide alliance of accountants and lawfirms) and has a full corporate law practice group.