National Social Security Authority v Twenty Third Century Systems (Pvt) Ltd & 3 Ors And Blessmore Chanakira & Anor

### Preamble
1
HH752/22
HC 7384/20
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NATIONAL SOCIAL SECURITY AUTHORITY

Versus

TWENTY THIRD CENTURY SYSTEMS (PVT) LTD

And

LEADBAKE ENTERPRISES (PVT) LTD

And

BLESSMORE CHANAKIRA

And

AUXILLIA DANAYI MUNYEZA

And

HENRY CHIKOVA

HIGH COURT OF ZIMBABWE

CHILIMBE J

HARARE 25 February & 26 October 2022

Adv F. Chinwawadzimba-for 5th defendant -excipient

Adv T. Mpofu-for plaintiff-respondent

No appearance for 1st,2nd,3rd and 4th respondents

Interlocutory application

CHILIMBE J

BACKGROUND

[ 1] Fifth respondent took a special plea to plaintiff`s claim. Plaintiff objected to the special plea on the basis that it was in breach of r 42 (8) of the High Court Rules 2021. Indeed, the special plea was not filed concomitantly with the defendant`s heads of argument as required by r 42 (8).

[ 2] This defect was brought to defendant`s attention on 22 November 2021 in the plaintiff`s replication as well as heads of argument responding to defendant`s special plea. Defendant responded to this letter and replication some forty-three (43) or so days later through a letter, by his legal practitioners, to plaintiff`s lawyers. In that letter defendant (correctly) dismissed some of the matters that plaintiff had raised in the replication and heads of argument.

[ 3] Inexplicably though, defendant’s legal practitioners completely overlooked perhaps the most critical aspect of plaintiff`s preliminary objections; -the non-filing of heads of argument simultaneously with the special plea.  Absolutely nothing was said about the breach and absolutely nothing was done to remedy it.

THE APPLICATION FOR CONDONATION FROM THE BAR

[ 4] It took an objection from Advocate Mpofu, (for plaintiff), on a point in limine on the day of argument to trigger an application for condonation from the bar by Advocate Chinwawadzimba for defendant. She urged the court to consider, as highly mitigatory, the fact that the omission to file heads of argument together with the special plea was promptly rectified four (4) days later. Counsel cited Munyorovi v Sakonda HH 467-21 in support of defendant`s plea for condonation. I understood her interpretation of that authority as being that in considering such applications, the court- (a) will make a distinction between an irregular pleading, which could be condoned, and an invalid pleading which was an unpardonable nullity and (b) stated that r 7 conferred wide discretion on the court to condone irregular pleadings on proper considerations.

[ 5] Counsel therefore argued that having regard to Munyorovi, the defendant’s breach in the present matter could not, on that basis, be considered as a gross violation of the rules and was therefore pardonable. Counsel therefore moved the court to exercise its discretion reposed in r 7 to condone the breach. Advocate Mpofu argued that in the absence of a proper application for condonation where facts were placed before the court through evidence on affidavit (or witness testimony in court), there was nothing for the court to condone.

THE RULE IN FORESTRY COMMISSION v MOYO

[ 6] Advocate Mpofu argued further that the Supreme Court in authorities such as Forestry Commission v Moyo 1997 (1) ZLR 254 (S) and GMB v Muchero 2008 (1) ZLR 216 (S) and Sammy`s Group (Pvt) Ltd v Meyburgh & 2 Ors SC 194-13 effectively held that a breach of rules must be followed by an application for condonation. Without such application, the offending pleading remained improperly before the court and stood to be struck off.

[ 7] The requirements for condonation were laid out by SANDURA JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) at 315 B-D.

“The factors which the court should consider in determining an application for condonation are clearly set out in Herbestein & Van Winsen’s The Civil Practice of the Supreme Court of South Africa 4 ed by van Winsen, Cilliers and Loots at pp 897-898 as follows:

“Condonation of the non-observance of the rules is by no means a mere formality.  It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance….The court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides in which the court will endeavor to reach a conclusion that will be in the best interests of justice.  The factors usually weighed by the court in considering applications for condonation…. Include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.” [ underlined for emphasis]

[ 8] It is therefore well-settled that where a party commits a breach of the rules of court, an assessment of the breach itself must be conducted. That assessment forms the first part of a broader inquiry to establish whether the offending pleading can be pardoned or struck off. I would agree in this instance with Advocate Mpofu that in the absence of a proper application, it will be difficult to properly and correctly evaluate the plea for leniency raised by defendant`s counsel from the bar. I am fully aware of the apparent difficulty which may arise by demanding that defendant motivates a proper application for condonation, especially on delay. Moreso having regard to the fact that the reasons likely to be advanced by defendant as cause of his mishap being rather predictable thus making the entire exercise a formality.

[ 9] I found it rather tempting to adopt a robust approach considering the 4-day delay in filing the heads of argument but decided against that for the following reasons;(a) the interests of justice and propriety dictated by precedent cannot be traded for seeming expediency. (b)  the breach on the part of the defendant relates to a peremptory rule. Defendant walked into this problem with his eyes open. He took a conscious decision to take a special plea in response to the plaintiff`s summons. The resultant procedure of pleading was not at all complex. Surely defendant`s legal counsel must have applied their mind to the task at hand and one wonders why they faltered. As (c), it would be improper to be distracted by the four (4) day period involved as there are other considerations to be taken into account when dealing with condonation applications and facts must be placed before the court. Thirdly as (d) there are other aspects that would require defendant`s explanation especially why they deigned to respond to the warning that their pleading was irregular.

DISPOSITION

[ 10] It is my view that the defendant be granted an opportunity, should he be so advised, to approach the court and explain how he came to be in breach of the rules of court. The special plea will in the interim, thus be struck from the roll.

It is hereby ordered that

Defendant`s special plea be and is hereby struck of the roll.

Defendant to file and serve, within ten (10) days from the date of this order, an application for condonation for failure to file his special plea in accordance with rule 42 (8) of the High Court Rules 2021, should he be so advised.

Defendant to pay the wasted costs of this interlocutory application.

Mutumbwa Mugabe and Partners -plaintiff-respondent`s legal practitioners

Maguchu and Muchada-fifth defendant-excipient`s legal practitioners

CHILIMBE J ______26/10/22