The
plaintiff instituted summons actions against the defendant on 25
February 2014 for payment of a sum of $30,696= together with interest
at the prescribed rate from 31 December of an un-named year to date
of payment and punitive costs for services alleged rendered from 31
December 2008 to March 2013. It averred that it leased to the
defendant PABX systems and telephones at Chinhokwe site.
In
response to the summons, the defendant filed a special plea in the
following:-
“Defendant
hereby files its special plea as follows:-
1.
Prescription
Plaintiff's
claim has prescribed. Plaintiff's claim arose in 2008 and it has
since prescribed.
2.
Cause
of action
(i)
There is no contract between plaintiff and defendant. Defendant does
not know plaintiff as plaintiff entered into a contract with Forestry
Commission of Zimbabwe.
(ii)
There is no basis for the claim in Unites States dollars yet the
contract is in Zimbabwean dollars. Further, there was never a
contract signed in United States dollars between the parties.”
At
the hearing of the matter, I raised the issue of failure to comply
with the Rules of Court relating to such matters as there appeared to
be a serious disregard of those rules in setting down the matter.
Counsel
for the defendant skirted around the issue. He submitted that,
whereas the rules require that such a matter be set down within a
specified period of time, it can only be set down when heads of
argument have been filed. For that reason, the practice makes it
impossible for the matter to be set down within the time prescribed
by the Rules. To him, the issue is as simple as that and for that
reason parties should be allowed to request a set down as they please
and they should be given audience.
Ordinarily,
one would overlook that kind of aberration but the infringement of
Rules providing for exceptions and special pleas has become too
frequent that one begins to doubt if litigants ever bother to
consider those provisions in the Rules. There is, therefore, a need
to redirect the attention of litigants to the requirements of the
Rules relating to exceptions and special pleas.
In
terms of Rule 137(1) of the High Court of Zimbabwe Rules, 1971, a
party may take a plea in bar or abatement where the matter is one of
substance which does not involve going into the merits, except to the
pleading, apply to strike out or apply for further particulars. When
such plea in bar or exception has been made there are peremptory
provisions for set down. In terms of Rule 138:
“Where
a special plea, exception or application to strike out has been filed
–
(a)
The parties may consent, within ten days of the filing, to such
special plea, exception or application being set down for hearing in
accordance with sub-rule (2) of Rule 223;
(b)
Failing consent, either party may, within a further period of four
days, set the matter down for hearing in accordance with subrule (2)
of Rule 223;
(c)
Failing such consent and such application, the party pleading
specially, excepting or applying, shall, within a further period of
four days, plead over to the merits if he has not already done so and
the special plea, exception or application shall not be set down for
hearing before the trial date.”
Clearly,
these are peremptory provisions that have to be complied with.
A
litigant cannot be allowed to ignore the procedure spelt out in the
Rules because this is not any other day in office where they would
otherwise do as they please. The procedure itself is disarmingly
straight forward and is there for a purpose. The bigger picture is
that the process of pleading specially, excepting or applying to
strike out should not be unrolled as a vehicle for delaying
proceedings. It is meant for genuine and serious litigants desiring
to bring finality or at least to obtain genuine relief where shoddy
pleading has occurred.
What
is happening presently at this court is that the procedure is
frequently being summoned by defendants, or is it legal
practitioners, who find themselves cornered to file a plea and are
unable to do so either because they are not ready, the legal
practitioner not having taken full instructions but finding nothing
ethically wrong with entering appearance to defend, or, having taken
instructions, is very much aware of the shaky defence the defendant
has or the non-existence of it. The procedure is then abused for
dilatory purposes.
The
time frames set out in the Rules have to be followed every step of
the way in order to put the special plea, exception or application
which is not meritable out of the way and get on with the business of
completing pleadings. Where it has merit, the first prize is won.
Therefore,
where the other party has not consented to the special plea,
exception or application to strike out within 10 days of their filing
the matter has to be set down for hearing within a further period of
4 days. With the procedure for set down currently in place at this
court where litigants are required to submit an application for set
down to the Registrar before the matter is allocated a judge who
would then give it a set down date, all the litigant is required to
do to satisfy the provisions of that Rule is to file heads of
argument in readiness and submit an application for set down. This
has to be done within the four day period following the failure to
consent.
In
the event that the party pleading specially has not secured the
consent of the other party to the special plea, exception or
application and has not made an application to the Registrar of this
court for a set down, that party loses the opportunity to have the
special plea, exception or application to strike out determined at
that early stage of the filing of pleadings. As they say, time waits
for no one. In that event, the party has to plead over to the merits
and the special plea, exception or application shall only be
determined at the trial.
I
am aware that Rule 223 provides for the set down of opposed
exceptions and applications to strike out in Harare on a business day
agreed with the Registrar not less than 6 business days before the
day of set down. This only simplifies the procedure to the extent
that even before the practice of having matters set down by the
presiding judges, there was always a need for the date of set down to
be agreed with the Registrar of the court to avoid a set down date
which would have no takers.
In
my view, the requirement for the filing of heads of arguments where
the applicant or excipient is to be represented by a legal
practitioner does not impugn the procedure for set down I have
alluded to as, in terms of Rule 238(1)(a), the heads of argument
should be filed before the matter is set down. I do not agree with
counsel for the defendant that the practice of filing heads of
argument makes it impossible for one to comply with the timeframes
set out in the Rules. It boils down to the simple point that you
should not file a special plea, exception or application to strike
out when you are not ready to argue it. Prepare it together with the
heads of argument for filing.
In
this case, the defendant filed the plea on 14 August 2014. There was
no consent to it. Instead, the plaintiff replicated to it on 25
August 2014 without the defendant having applied for a set down date.
In fact, the defendant's legal practitioner only filed heads of
argument on 4 September 2014 - 10 days shy of a month after the
special plea was filed and paid for the service of the notice of set
down on 18 September 2014.
This,
the defendant could not do.
The
Rules specifically prohibit the set down of a special plea in that
manner. It cannot be set down before trial. The same point was stated
in Mazibuko
& Anor v Ndebele & Ors
2008 (2) ZLR 26 (H)…, that:-
“The
applicants did not plead over to the merits when it is mandatory that
they should do so. As if that was not bad enough, the applicants
went on to set down the matter for argument before trial. The rules
prohibit that. On that basis also, the Applicants are not properly
before this court.”
I
would therefore not countenance entertaining the special plea which
has been set down for hearing in violation of the Rules. The matter
is improperly before me.
Accordingly,
IT IS ORDERED THAT:-
1.
The defendant's special plea is hereby stood down for determination
at the trial.
2.
The defendant is directed to plead over to the merits of the claim
within 10 days of this order.
3.
The costs shall be in the main cause.
