Tradepass Makerting Services (Pvt) Limited t/a Outreach for Jesus Carpenters v Filanninno and Ors (HC 596 of 2011) [2011] ZWBHC 57 (30 March 2011)

TRADEPASS MARKETING SERVICES (PVT) LIMITED

T/A OUTREACH FOR JESUS CARPENTERS APPLICANT

VERSUS

M. FILANNINO AND MARKOU M 1^st Respondent

And

JOHN POCOCK AND COMPANY (Pvt) LIMITED 2^nd Respondent

And

ADVOCATE HILDA MAKUSHA MOYO N.O 3^rd Respondent

And

MR G. NYATHI, OF Sansole and Senda N.O 4^th Respondent

And

PINEAUS MADZIVIRE Joel Pincus Konson and Wolhuter N.O 5^th Respondent

And

CLERK OF CIVIL COURT MRS J. MAPFUMO N.O 6^th Respondent

And

ACTING PROVINCIAL MAGISTRATE P. MSIPA N.O 7^th Respondent

And

MESSENGER OF COURT N.O 8^th Respondent

And

MAGISTRATE S. JELE N.O 9^th Respondent

And

DEPUTY SHERIFF, BULAWAYO N.O 10^th Respondent

HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 28 AND 31 MARCH 2011

JUDGMENT

MATHONSI J: In this matter the applicant seeks an order declaring that there is a bar operating against the 2^nd Respondent and that the special plea filed by the 2^nd Respondent was filed out of time.

On 7 February 2011 the applicant filed a notice of intention to bar which was served on Calderwood Bryce Hendrie and Partners, the legal practitioners of the 2^nd Respondent that same day. The time during which the 2^nd Respondent was required to file a plea or other answer to the claim expired on 14 February 2011. The 2^nd Respondent managed to file a response by close of business on that day in the form of a special plea.

The applicant has argued that the fact that the special plea was served the following day on 15 February 2011 nullified it. I do not agree. The plea was filed on time and its service a day later did not render it invalid. The applicant’s attempt to bar the 2^nd Respondent on 16 February 2011 days after the plea had been filed was an exercise in futility and of no legal consequence.

The applicant has also attacked the merits of the special plea. That is an issue to be determined when the matter is argued. It cannot be raised by a separate chamber application. Heads of argument have been filed and an application for a set down date made. The matter should therefore be set down on the opposed roll and disposed of that way.

I ccme to the conclusion that the application is without merit. It is accordingly dismissed with costs.

Joel Pincus, Konson and Wolhuter, 1^st, 3^rd,5^th,6^th and 8^th Defendant’s Legal Practitioners

Messrs Calderwood, Bryce Hendrie & Partners, 2^nd Defendant’s Legal Practitioners

Messrs Sansole and Senda, 4^th Defendant’s Legal Practitioners