Order 21 Rule 137(1)(a) of the High Court Rules recites as follows:“137 Alternatives to pleading to merits(1) A party may –(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if ...
Order 21 Rule 137(1)(a) of the High Court Rules recites as follows:
“137 Alternatives to pleading to merits
(1) A party may –
(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case.”
What comes out from the above is that the requirements of a special plea are that:
(a) The matter must be one of substance;
(b) Which does not involve going into the merits of the case; and
(c) If allowed, disposes of the case.
In the case of Brown v Vlok 1925 AD 56 which was quoted in George v Lewe and Another 1936 CPD 402…, INNES CJ had this to say:
“Now, a plea in bar is one which, apart from the merits, raises some special defence not apparent from the declaration, for in that case it would be taken by way of exception, which either destroys or postpones the operation of the cause of action.”
The plea in bar is not predicated on a denial of any facts set out in the declaration, as that would involve going into the merits of the case made by the plaintiffs in their declaration. The plea proceeds on the basis that the allegations in the plaintiffs declaration are correct but should nevertheless be disposed of for one reason or another that does not appear ex facie the pleadings.
In Scuddingh v Vitenhage Municipality 1937 CPD 113 the court had this to say in respect of a plea in bar…,.:
“It (a special plea) is the type of plea the object of which is to avoid the necessity of going into the merits of the plaintiff''s claim because of the existence of certain circumstances not apparent from the declaration which either bar or postpone the claim made.”
The courts have stated, repeatedly, that, the purpose of a special plea is to permit the defendant to achieve a prompt resolution of a factual issue which founds a legal argument which disposes of the plaintiffs claim as called for by Rule 137(1)(a) of the High Court Rules above.
See, for instance, Doelcam (Pvt) Ltd v Pitchamick and Others 1999 (1) ZLR 390.
