MATHE v MATHE 2012 (1) ZLR 160 (H)

Flynote

Practice and procedure — set down — notice of — matrimonial matter — need for notice of set down to be given personally in all situations — notice in accordance with Form 30 — no need to serve such notice on defendant where summons in accordance with Form 30A

Headnote

In terms of r 272 of the High Court Rules, 1971, in an action for divorce or nullity of marriage, where the defendant has failed to enter appearance, the plaintiff who wishes to obtain judgment must, if the declaration has not been served with the summons, file and deliver his or her declaration and, either simultaneously or subsequently, a notice in accordance with E Form No. 30. This notice calls upon the defendant, if he or she wishes to defend, to plead, answer or except or make a claim in reconvention within 12 days of the date of delivery of the notice and informs him or her that in default, judgment will be sought against him or her. If the declaration was served with the summons, the plaintiff must file and deliver the notice to the defendant after the expiry of the dies induciae. After that the plaintiff may set the case down for trial but must serve personal notice of set down upon the defendant. The court may not proceed to trial unless it is satisfied that the personal notice of the defendant has been drawn to the fact that the matter has been set down for trial or that, for good and sufficient reason, the giving of personal notice is impracticable.

However, under r 269A, the summons commencing an action mentioned may, at the option of the plaintiff, be issued in Form No. 30A, to which a copy of the plaintiff's declaration is annexed. In that event, r 272 does not apply and there is no need to serve a Form 30 notice. Nonetheless, personal service of the notice of set down must be given. This salutary

A rule of practice is motivated by the irreparable harm that may result in a final decree of divorce. Divorce results in a final change of status of the parties.