HH 306-21

                                                                                                   HC 7701/20

MOUNT MERU PETROLEUM ZIMBABWE (PRIVATE) LIMITED

versus

MUDHAWIN ENTERPRISES (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 16 & 23 June 2021

Exception to the summons

F Chinwawadzimba, for the applicant

R Mabwe, for the respondent

MANZUNZU J: This judgment deals with a preliminary point on whether or not an exception and special plea to the summons were filed within the time limits prescribed by the rules.

The chronology of events leading to the filing of an exception is as follows;

The plaintiff issued summons against the defendant on 29 December 2020. The summons and declaration were served on the defendant on 3 March 2021. The defendant entered an appearance to defend on 12 March 2021. On 29 March 2021 the defendant filed and served on the plaintiff a request for further particulars. Plaintiff’s further particulars were supplied on 30 March 2021. Thereafter the parties started to exchange correspondence with the defendant expressing the inadequacy of the supplied further particulars and the plaintiff taking a different view. There was also a threat to file an application to compel further particulars which never came to fruition.  However, an exception and a special plea were then raised on 16 April 2021.

Rule 119 of the High Court Rules provides that;

“The defendant shall file his plea, exception or special plea within ten days of the service of the plaintiff’s declaration:

Provided that where the plaintiff has served his declaration with the summons as provided for in r 113 there shall be added to the period of ten days above referred to the time allowed a defendant to enter appearance as calculated in terms of r 17.”

This rule therefore provides that an exception or special plea shall be filed within 20 days, from the date of service of the summons and declaration. In casu, summons and declaration were served on 3 March 2021. The 20 day grace period expires on 31 March 2021.

Ms Chinwawadzimba for the plaintiff, on the basis of these facts, urged the court, with confidence that the exception and special plea must be struck off with costs at a higher scale. She relied on Ecobank Zimbabwe Ltd v Chitando and Anor HH 787/16 where the court cited with approval the decision in Sammy’s Group (Pvt) Ltd v Meyburgh N.O & Ors SC 45-15 where it was held; “It is true, as the learned Judge remarked, that there is no sanction for the late filing of an exception or special plea.  However, the provision in the rules is mandatory and the documents filed in contravention thereof cannot, in the absence of condonation of the non-compliance with the Rules, have any legal validity. The sanction must, in my view be, that the pleading is invalid by virtue of its non-compliance with the Rules. First respondent’s exception was filed 15 days out of time.  Second respondent’s special plea and exception were filed 6 and a half months out of time.  Both applications were in violation of the Rules without explanation, without condonation, sought or granted.   There was, therefore, no legal basis on which they were entertained by the court a quo.”

In response to this position Ms Mabwe for the defendant relied on r 142 which says;

“142. Time for replying to pleading where application for particulars made

If a party applies for particulars, the time for replying to the pleading of which particulars are sought shall be calculated—

(a) where the particulars are supplied voluntarily or pursuant to an order of court, from the date on which the particulars are supplied;

(b) where the particulars are refused and the applicant fails to make a court application for an order within twelve days of the refusal, from the date of expiry of such period of twelve days;

(c) where the particulars are refused and the court refuses to order the particulars to be supplied, from the date of the court’s refusal.”

She argued that the request for further particulars interrupted the dies induciae and the 20 day period should be calculated from 31 March 2021 the date when defendant was served with the further particulars. I disagree with the interpretation afforded to rule 142. A reading of r 142 shows that the pleading whose dies induciae is affected is one for which the particulars are sought. The request for further particulars introduces itself in this form: “to enable the defendant to plead to the plaintiff’s claim the following further particulars are requested.” The further particulars were therefore requested to enable the defendant to file a plea. Rule 142 therefore tilts in favour of the defendant the period within which to file a plea. The further particulars were not asked for the purpose of filing an exception or special plea.

While there is no automatic bar in one’s failure to file an exception or special plea within the prescribed time limits, one cannot proceed without condonation see Sammy’s Group case (supra). In casu the exception and special plea were filed out of time and the defendant has not been condoned, in fact no such application was made. The plaintiff has asked for costs on a higher scale which in my view is not justified. There is nothing untoward by the defendant to warrant punitive costs.

Disposition.

1. The preliminary point succeeds.
2. The exception and special plea be and are hereby struck off with costs.

N B Narotam & Associates, plaintiff’s legal practitioners

Farai & Associates, defendant’s legal practitioners