The Submissions
Counsel for the appellant submits
that an objection to jurisdiction must be
by way of special plea.
This emerges from Rule 137(1)(a)
and (b) of the High Court Rules, which provides a clear distinction
between special pleas and exceptions. In South Africa, the position may be
different but in this country there is specific authority which states that a challenge to jurisdiction must be taken by way of special
plea and that it is necessary
to restrict exceptions to objections dealing with the merits of the matter.
Counsel for the respondent submits that the distinction
between an exception and a special plea is one of form and not of substance. By
virtue of Rule 106 of the High Court Rules, no technical objection may be
raised to any pleading on the ground of any alleged want of form. Although an
objection to jurisdiction is usually raised by special plea, the failure to do
so is not necessarily fatal. In South Africa, there is clear authority to the
effect that a special plea and an exception are interchangeable.
Counsel for the appellant counters that Rule 99, which deals with the form and content of
pleadings, and Rule 106, relating to technical objections, both form part of
Order 15 regulating pleadings generally. Rule 106 itself refers only to Rule 99
and not to Rule 137, which is contained in Order 21 dealing specifically with
special pleas and exceptions.
The Case Authorities
In South Africa, the traditional approach has been to
differentiate between an exception and a special
plea on the basis the latter raises
some special defence
not apparent ex facie the
declaration. In the words of INNES CJ in Brown v Vlok 1925 AD 56…,.:
“…, a plea in bar is one which, apart from the merits,
raises some special defence, not apparent ex facie 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 same approach is adopted and elaborated by HERBSTEIN
& VAN WINSEN: The Civil Practice of the Supreme Court of South Africa (4th
ed.)…, as follows:
“The essential difference between a special
plea and an exception is that in the case of the latter the excipient is
confined to the four corners of the declaration. The defence he raises on
exception must appear from the declaration itself; he must accept as true the
allegations contained in it and he may not introduce any fresh matter. Special
pleas, on the other hand, do not appear ex facie the declaration. If they did, then the exception procedure would
have to be followed. Special pleas have to be established by the introduction
of fresh facts from outside the circumference
of the declaration, and those
facts have to be established by evidence in the
usual way. Thus, as a general rule, the exception procedure is appropriate when the defect appears
ex facie the pleading, whereas a special
plea is appropriate when it is necessary to place facts before the court
to show that there is a defect. The defence of prescription appears to be an
exception to this rule, for it has been held
that that defence
should be raised
by way of special plea even when it appears ex facie the
plaintiff's particulars of claim that the claim has prescribed, apparently because the plaintiff may wish to replicate a defence
to the claim of prescription, for example an
interruption.”
The learned authors
proceed, at pages 473-479, to enumerate and explain those special defences that are typified
by special pleas, viz. dilatory
pleas, pleas in abatement, lis alibi pendens, arbitration as a condition
precedent, prescription, non-joinder or misjoinder, res judicata and absence of jurisdiction. As regards
jurisdiction in particular, they take the view…, that:
“The usual method of raising a defence of absence of
jurisdiction is by way of a special plea because the lack of jurisdiction is
often not apparent from the allegations contained in the pleadings objected to
and must, therefore, be proved with fresh matter
introduced by way of evidence, which cannot be done in the case of an exception. Where, however, it
is apparent ex facie the pleading
itself that the court concerned has no jurisdiction, the matter may be decided
on exception.”
The case cited as authority for the last proposition is
Viljoen v Federated Trust Ltd 1971
(1) SA 750 (O)…, where STEYN AJ held that:
“If, however, it is apparent ex facie the pleading itself that the court concerned has no such
jurisdiction, a defence based upon the absence of jurisdiction can be
established without the introduction of any fresh matter….,.
In my opinion, it
is clear, therefore, that the above-quoted phrase in sub-rule (1) of Rule 23 [i.e. 'sustain an action'] has a meaning which is wide enough to cover
a case where the absence of the necessary jurisdiction is apparent ex facie the pleading concerned, and that a defence
based upon the absence of such jurisdiction can validly be raised by way
of exception.”
In advancing the respondent's position, counsel for the
respondent cites the broad principle
that the courts are inclined to look at the true nature and substance of the
matter in question as opposed to its form. He relies in particular on the
decision of the South Gauteng High Court
in Sanan v Eskom Holdings
Ltd 2010 (6) SA 638 (GSJ) which appears
to have been inspired by the need to give precedence to substance over form.
After citing VOET's Ad Pandectaes (46),
where the eminent jurist subsumes all special defences under the broad rubric
of exceptions generally, CLAASEN J opines, at paras. 18 and 21, that:
“It, therefore, seems to me of little moment whether a
particular defence is raised by way of exception or by way of special plea,
provided that it is properly and timeously raised in an intelligible form….,.
It would seem to me that the nature of a defence
raised by special
plea or exception is more important than the procedure
adopted. It is the nature
of such defence which would determine
whether or not evidence is required and whether or not the defence
should have been raised in initio litis or
whether it can be raised on appeal. How the defence is raised is of lesser
importance than the grounds for the defence and the point in time that it is
raised…,. In my view, this conclusion
is fortified by the fact that practicalities determine the method by which a
defence is raised.”
In Zimbabwe, the tendency has been to retain the
distinction between exceptions and special pleas, in keeping with the
traditional approach expounded by HERBSTEIN & VAN WINSEN: The Civil
Practice of the Supreme Court of South Africa (4th ed.)…,. Thus, in Reuben v Meyers 1957
(4) SA 57 (SR)…, MURRAY CJ
observed that:
“According to the modern practice, a defence of
prescription is raised by a special plea; in the Courts of Holland this was
done by an exception, a term which, as pointed out by INNES CJ, in Western
Assurance Co. v. D Caldwell's Trustee 1918 AD 262 at p. 270, is used not in the narrow sense
applied to it in South Africa
(and Southern Rhodesia), but as covering a number of what would here be called
special pleas.”
In Edwards v Woodnutt N.O. 1968 (4) SA 184 (R), the distinction was rationalised as being founded on the need to adduce further
evidence in the case of special pleas. As is explained by BEADLE CJ…,:
“It will be seen that the two major objections of the
defendant to the declaration relate to the locus standi of
the plaintiff to pursue his action and do not suggest that if
the plaintiff had the requisite locus standi the declaration did not disclose
a cause of action.
Objections to the locus standi of
a litigant to sue are more properly
taken by way of plea in bar or abatement than by exception. The practice
of this Court is to employ the procedure of excepting for those objections
which go to the root of the declaration and allege that the declaration does not disclose
a cause of action at all, and not for those cases where only
the locus standi of a particular
plaintiff to sue is concerned. The basic difference, however, between an
exception and a plea in abatement is that in the case of a plea in abatement evidence
may be led, whereas in the
case of an exception the facts stated in the pleadings must be accepted.”
On the particular facts of that case, although
the defendant had followed the wrong
procedure in challenging the plaintiff's locus standi by way of exception, the matter was
allowed to proceed to a determination on its merits. The reason for do doing
was that:
“In the instant case, the defendant does not rely on a
single fact which does not appear in the declaration, nor does he challenge any of the facts pleaded.
This being so, though
it would have been better
had the defendant's first and second
exception been taken by way of a plea in bar, if no possible prejudice
is caused the plaintiff by this form of procedure, I can see no reason why the
real issues should not now be determined by this Court.
Had the plaintiff wished to lead evidence
I would have ruled that the plaintiff [sic] was out of order for
adopting the wrong procedure, but as
the plaintiff has not been able to suggest any evidence which he might have led which could have any bearing at all on
these issues I have allowed the matter to proceed so that (as I have said) the
real issues raised in these proceedings can be determined without waste of costs.”
In the more recent case of Doelcam (Pvt) Ltd v Pichanick
& Others 1999 ZLR 390 (H)…, GILLESPIE J outlined the various
forms of special
plea available and the
rationale underlying that procedure:
“The purpose of a special
plea is to permit a defendant to achieve prompt
resolution of a factual issue which founds a legal argument that
disposes of the plaintiff's claim. Special pleas are three in kind. The plea in
bar, by which a party may interpose a purely formal objection to the jurisdiction
of the court. The plea is available as a plea to the jurisdiction or as a plea
for the recusal of a judge and in no other case. Other special pleas are
available to disclose some ground either for quashing or abating a declaration
or for delaying proceedings. Both are usually termed pleas in abatement, although that expression is properly used to describe
the declinatory, rather than merely dilatory, plea. The plea in
abatement, strictly so called, avers some good ground, not disclosed in the declaration,
which otherwise is admitted, for denying the plaintiff relief. The dilatory
plea advances some fact, not disclosed in the declaration, which is otherwise
admitted, and which
entitles the defendant to a
stay of proceedings.
Since a special plea involves the averment of a new fact,
it is susceptible of replication and of a hearing at which evidence on this new
fact alone may be led….,.”
The learned judge proceeded to reject the preliminary point
taken by one of
the defendants because it had been improperly mounted through a special plea
rather than by way of exception:
“In this case,
we can therefore see that the point taken by the messenger
of the court did not constitute a plea in bar. In fact, it was not properly a special plea at all. It advanced the legal argument
that a Messenger of Court acts as agent for a judgment creditor. An exception was the
appropriate method of raising the point.”
The High Court Rules
Order 15 of the High Court Rules governs pleadings
generally, while Rule 99 regulates the form and content of pleadings as follows:
“A pleading shall
-
(a) Be legibly written on A4 size paper on one side only; and
(b) State the title of the action, the case number, if any,
and the description of the pleading; and
(c) Contain a statement in a summary form of the material
facts on which the party pleading relies for his claim or defence, as the case
may be, but not the evidence by which they are to be proved; and
(d) Be divided into paragraphs numbered consecutively, each
paragraph containing, wherever possible, a separate allegation; and
(e) Have each page, including every document annexed to it,
numbered consecutively; and
(f) Be signed by the party concerned or by his legal
practitioner; and
(g) Give the
party's address for service.”
Rule 106, which also forms part of Order 15, is concerned
with technical objections to form and states
that:
“No technical objection shall be raised
to any pleading on the ground of any alleged want of form.”
Order 21 deals with special pleas, exceptions, applications
to strike out and applications for
particulars. Rule 137 prescribes alternatives to pleading to the merits and the
forms to be utilised for any such alternative. It provides that:
“(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;
(b) Except to the pleading or to single paragraphs thereof
if they embody separate causes
of action or defence as the case may be;
(c) Apply to strike out any paragraphs of the pleading
which should properly be struck out;
(d) Apply for a further and better statement
of the nature of the claim
or defence or for further and better particulars of any matter stated in any
pleading, notice or written proceeding requiring particulars.
A plea in bar or
abatement, exception, application to strike out or application for particulars
shall be in the form of such part of Form No.12 as may be appropriate mutatis
mutandis, and a copy thereof filed with the Registrar. In the case of an
application for particulars, a copy of the reply received to it shall also be filed.”
The form referred
to in subrule (2) of Rule 137, i.e. Form No. 12, is divided into three separate forms, each dealing
respectively with;
(a) The plaintiff's or defendant's exception;
(b) The defendant's plea in bar or abatement; and
(c) The plaintiff's or defendant's
application to strike out.
No specific form is prescribed for a request for particulars before the close of pleadings, as opposed
to a notice calling for further particulars in order to enable the requesting
party to prepare for trial, i.e. Form
No.13, as prescribed by Rule 143.
Rule 137, in its present form, has, apart from a minor
inconsequential amendment effected by section 3 of Statutory Instrument 120 of
1995, S.I.120 of 1995, remained unaltered
since the enactment of the original High Court (General
Division) Rules 1971 (R.G.N. No. 1047
of 1971). These
Rules repealed and replaced the Rules of the High Court of Rhodesia,
contained in the Schedule to the High Court Practice and Procedure Act (Chapter
9 of the 1939 Revised Edition of Statutes).
Order 15 of the 1939 Rules regulated the taking of
exceptions and special pleas and the procedure to be followed in their set-down
for hearing. Rule 1 of Order 15 dealt with pleas in bar or in abatement, while Rule
2 of that Order related to exceptions. Rule 1 was virtually identical to its
current equivalent in Rule 137(1)(a). Rule 2 was somewhat differently
formulated as compared with the present Rule 137(1)(b), but in substance,
captured the same restriction against excepting to single paragraphs of a
pleading.
In short, nothing of significance is to be derived or
gleaned from the legislative history of Rule
137.
Exception
versus Special Plea
My reading of Rule 106, which precludes technical objections on the ground
of any alleged want of form, is that it is confined to the application
of Rule 99. I take this view not only because both Rules are contained in the
same Order 15 but also because they both relate, in particular, to the form of pleadings. Rule 106 does not extend
to the application of Rule
137 for two reasons;
(i) Firstly, the latter Rule is set out in an entirely
separate Order 21 dealing specifically with special pleas and exceptions.
(ii) Secondly, and more importantly, although subrule (2)
of Rule 137 is concerned with the form of special pleas and exceptions, the
more crucial aspect of Rule 137 is subrule (1) which is designed to regulate
the procedure to be followed in raising exceptions or special pleas.
As for the formulation of Rule 137(1) itself, there can be
no doubt that it explicitly differentiates between
special pleas, on the one hand, and exceptions on the other. Moreover, Rule 137(2) clearly
stipulates that different forms are to be utilized when one or the other
procedure is followed. This tends to support the argument that Rule 137(1) is
to be strictly applied and that any deviation therefrom is to be visited with an adverse
ruling.
The critical question is whether this position invariably
applies in each and every case irrespective of the particular circumstances of a given
case.
In the absence
of clear guidance from the provisions of Rule 137 per se, but having
regard to the case authorities on the subject, I am inclined to adopt a
negative answer to that question.
As a general rule, exceptions taken by a defendant must be
limited to objections or defences
that arise ex facie the declaration
itself. These would include averments that the declaration, or part thereof,
does not disclose a valid cause of action or is vague and embarrassing. On the other hand, where the point taken constitutes a special defence,
such as absence of jurisdiction, res judicata or prescription (cf. the
pleas referred to above, as discussed by HERBSTEIN & VAN WINSEN: The Civil
Practice of the Supreme Court of South Africa (4th ed.)…, the procedure to be
followed is by way of special plea. These
are instances where the defence relied upon is not evident ex facie the declaration and involves the
averment of some new fact or facts to be proved with fresh matter. The
procedure by way of special plea enables the plaintiff to rebut the defence
raised by replication and the adduction of further evidence
where necessary. In exceptional cases, however, where the
special defence in question is apparent ex facie the declaration itself, the court may allow the matter to be decided on exception. This is subject
to the qualification that the
plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a
decision being taken on exception.
