Otillia Kamhunga v Antock Kurauone N.O and 5 Others

### Preamble
1
HH 784-22
CASE NO. HC 2954/22
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OTILLIA KAMHUNGA

versus

ANTIOCK KURAUONE N.O

(In his personal capacity and in his official

Capacity as the Judicial Manager of 2nd to 4th

respondents)

And

MUTOMBA HOLDINGS (PRIVATE) LIMITED

(Under Judicial Management)

and

SHOPPA STOPPA (PRIVATE) LIMITED

(Under Judicial Management)

and

SAVANGWE MINING VENTURE (PRIVATE) LIMITED

(Under Judicial Management)

and

MASTER OF THE HIGH COURT, N.O

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 14 October & 10 November 2022

Opposed Application

Ms A Chihombori, for the applicants

G Madzoka, for the 1st to 4th respondents

No appearance for the 5th and 6th respondents

MUREMBA J:   This is an application for the setting aside of irregular proceedings in terms of s 43(1) of the High Court Rules, 2021. The applicant is the plaintiff whilst the first to the fourth respondents (hereinafter called the respondents) are the first to fourth defendants in the main cause between the parties in HC 5524/2021. In that matter, the respondents in response to the applicant’s summons filed an exception, a special plea and a plea to the merits all at once. It is the applicant’s averment that the respondents failed to comply with the peremptory provisions of rule 43(2) and rule 43(8) of the High Court Rules, 2021 when they filed the exception and the special plea. It is on this basis that the applicant filed the present application seeking the following relief.

“It is ordered that:

The exception and special plea filed by the 1st,2nd, 3rd and 4th respondents on the 04th of March 2022 under case number H.C 5524/2021 be and is hereby set aside as an irregular proceeding for want of compliance with the rules of the Honourable Court.

The costs of this application shall follow the main cause.”

The irregularities

Failure to write a letter in terms of rule 42(3)

It is the applicant’s averment that the exception is irregular in the following manner. Before filing the exception, the respondents did not write a letter to the applicant’s legal practitioners stating the nature of their complaint and calling upon the applicant to remove the cause of the complaint within 12 days as is required in terms of rule 42 (3) of the High Court Rules, 2021. The respondents do not dispute that they breached this requirement. They admit that they did not write the required letter. However, their defence is that failure to write the letter does not invalidate the exception.  It only has a bearing on the issue of costs upon the determination of the exception. The court will simply take into consideration the failure to write the letter when determining the issue of costs in the event that the exception succeeds.

The rule reads:

“Before filing any exception to a pleading or making a court application to strike out any portion of a pleading on any grounds, the party complaining of any pleading shall, within the time allowed for filing a subsequent pleading, by written letter to his or her opponent state the nature of his or her complaint and call upon the other party to remove the cause of the            complaint within twelve days of the complaint.”

However, it is clear from the heads of argument by lawyers for both the applicant and the respondents that the failure by a party raising an exception to write a letter to the other party in terms of rule 42(3) does not invalidate the exception and bar its hearing. The sanction that is provided for in terms of rule 42(5) is for the party to be penalised by costs. The court will simply take into consideration the failure to write the letter when determining the issue of costs at the hearing of the exception. Rule 42(5) reads:

“In dealing with the costs of any motion to strike out or of any exception, the provisions of this rule shall be taken into consideration by the court.”

Since the lawyers were in agreement on this issue, I do not see why the applicant pursued the issue at the hearing. Ms Chihombori could have simply abandoned the issue.  Be that as it may, the foregoing shows that the failure by the respondents to write a letter to the applicant before filing their exception does not affect the validity of the exception. The exception does not become an irregular proceeding in terms of rule 43(1). Consequently, I cannot set it aside on this basis.

Failure to file heads of argument in terms of rule 42(8)

The applicant contended that a further irregularity which applies to both the exception and the special plea is that both pleadings were filed without heads of argument as is required by rule 42 (8).

The respondents do not dispute that they did not file heads of argument together with the exception and special plea. However, their defence or explanation for not filing heads of argument is that the provisions of rule 42 (8) are not applicable in instances where an exception and a special plea are filed together with a plea on the merits. They averred that in such instances the exception and the special plea will not be set down for hearing before the date of the trial.  The matter will simply proceed with the plaintiff filing her replication in terms of rule 40(1) and the matter proceeds all the way to pre-trial conference stage and then to trial. It is at trial that the trial court deals with the exception and special plea first before dealing with the issues on the merits of the matter. It was the respondents’ contention that the need to file heads of argument in terms of rule 42 (8) only arises in instances where the defendant files an exception and/or special plea without pleading over to the merits. The respondents averred that the applicant is misconstruing the provisions of rule 42. The respondents prayed for the dismissal of the application.

In response the applicant averred in her answering affidavit that the rules do not exempt the defendants from the requirement to file heads of argument on the basis that in filing an exception and/ or special plea they simultaneously filed a plea to the merits.

Rule 42 (8) reads:

“A party filing an exception, special plea or an application to strike out shall, at the time of filing it, file heads of argument in support of the exception, special plea or application to strike out”

I am in agreement with the applicant that in terms of rule 42 (8) the use of the word “shall” makes it peremptory for the party filing an exception and special plea to simultaneously file heads of argument in order to support the pleadings. Rule 42 (9) puts this issue beyond doubt. It reads:

“Where the other party is represented by a legal practitioner, he or she within ten days of        receipt of the exception, special plea or application to strike out and the heads of argument accompanying it, file his or her replication and heads of argument and whereupon, the
registrar shall give such party a set down date within a month from the date of filing.”

This rule provides that the party receiving an exception, special plea and application to strike out if legally represented ought to respond or replicate to it within 10 days and simultaneously file heads of argument. From the date of filing of the replication and the heads of argument, the registrar shall set down the matter for hearing within 30 days. Again, the use of the word ‘shall’ shows that it is peremptory that the exception, special plea and application to strike out be set down, heard and determined before the date of the trial. The rules do not provide for any other way in which a special plea and or exception should be set down for hearing. It thus appears to me that in terms of rule 42 (9) of the 2021 rules, all preliminary objections must be set down and determined first before a plea is made to the merits. I am thus in agreement with Ms Chihombori for the applicant that if the party raising an exception or a special plea does not simultaneously file heads of argument, the defending party if legally represented is prejudiced because he or she is unable to prepare his or her own heads of argument in response yet the rules require that the replication be filed together with heads of argument.

The rules do not say that in instances where a party files an exception and a special plea together with a plea on the merits he or she will be exempted from filing heads of argument. There is no such provision in the rules. There is also no provision in the rules for the determination of an exception, and special plea at trial as was the procedure under the repealed High Court Rules, 1971 yet this is the procedure that the respondents want resorted to in the present matter. The argument by Mr Madzoka is that there is a lacuna in the present rules as the rules do not provide for the procedure to be followed in the event that an exception, special plea and a plea to the merits have been filed at the same time.  His submission was that in such a case resort should be had to the repealed rules of 1971. To put things into perspective let me cite the relevant old rule. The rule was rule 138 (a) to (c) and it read:

“138 Procedure on filing special plea, exception or application to strike out

When 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 subrule (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.”

Under this old rule the procedure for setting down special pleas, exceptions and applications to strike out was totally different from the procedure now.  The first option was for the parties to consent to setting down the matter between themselves. Secondly, failing such consent, either party could apply to set the matter down for hearing. Thirdly, failing such consent and such application, the party pleading specially or excepting was obliged to then plead over to the merits if he or she had not already done so, and the special plea, exception or application to strike out would be heard at trial. S 138 (c) was very categoric that the special plea, exception or application to strike out would be heard at trial if they were not heard before. There is no similar provision in the current rules.  The question that arises is whether the repealed High Court Rules, 1971 rules can be used to fill in the so-called lacuna in the current rules. In terms of Rule 109 of the High Court Rules, 2021, the High Court Rules of 1971 were repealed by the High Court Rules 2021. The Interpretation Act [Chapter 1:01] in s 3 defines the word ‘repeal’ as including rescind, revoke and cancel.  Rules that were rescinded or revoked or cancelled ceased to have force and effect when the new rules came into force. The repealed rules cannot therefore be of any force and effect now because they are now non-existent. Besides, the High Court Rules, 2021 do not say that in case of a lacuna there should be a fall back on the repealed rules. Put differently, resort cannot be had to a law that is no longer in existence.

Let me hasten to point out that my reading of the High Court Rules of 2021 gives me the impression that they do not provide for pleading over to the merits at the time of filing an exception, special plea and application to strike out. A plea to the merits should only be made after the exception, application to strike out and special plea have been determined. I say this because of rules 37(3); 42(1) and 42(7).

Rule 37(3) reads:

“Where the defendant has delivered notice of appearance to defend, he or she may, subject to rule 39, within ten days after filing such appearance, deliver a plea with or without a claim in

reconvention, or an exception with or without application to strike out or special plea.”

This means that after the defendant has entered appearance to defend, he or she has the following alternatives. Firstly, he or she may file a plea to the merits. Secondly, he or she may file a plea to the merits together with a claim in reconvention. Thirdly, he or she may file an exception. Fourthly, he or she may file an exception together with an application to strike out and/or a special plea. Fifthly, he or she may file a special plea. The way this rule is couched shows that a plea to the merits is not filed together with an exception, an application to strike out and a special plea.  However, an exception, an application to strike out and a special plea can be filed together. Rule 42 (6) puts this position beyond doubt. It provides that,

“A party shall state all his or her exceptions, special pleas and make all his or her applications to strike out at one time.”

Rule 42(1) also provides that a party may file exceptions, special pleas, applications to strike out and applications for particulars as an alternative to pleading to the merits. It reads:

42. (1) “As an alternative to pleading to the merits, a party may within the period allowed for filing any subsequent pleading: —

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 where the pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be;

(c) apply to strike out any paragraphs of the pleading which should properly be struck out or which contain averments which are scandalous, vexatious, or irrelevant:

Provided that the court shall not grant the application unless it is satisfied that the applicant may be prejudiced in the conduct of his or her claim or defence if it is not granted;

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.”

Rule 42 (7) seals the position by providing that:

“Wherever any exception is taken to any pleading or an application to strike out is made, until it has been determined, no plea, replication or other pleading shall be necessary except as provided for in subrule (8).”

This rule means that all preliminary objections relating to exceptions, special pleas and applications to strike out ought to be determined first before a plea to the merits in terms of rule 37 and a replication in terms of rule 40(1) can be filed.

In view of the foregoing rules, I conclude that the procedure that was adopted by the respondents of filing an exception, special plea together with a plea to the merits is a procedure of their own creation which is not provided for in the High Court Rules of 2021. The procedure does not to comply with the rules because as has already been discussed above, the rules do not provide for pleading over to the merits at the time of filing an exception and a special plea. As a result, the argument by Mr Madzoka that there is a lacuna in the rules on the basis that the rules do not provide for the procedure to be followed in the event that an exception, special plea and a plea to the merits are filed at the same time has no merit. The lacuna is a creation of the respondents which arose as a result of them having created their own procedure which is outside the rules. If a party complies with what the rules provide for, they will not encounter the challenges the respondents encountered. No lacuna will be created.

A party that files an exception, special plea and an application to strike out without the heads of argument files an incomplete pleading because the heads of argument are meant to support the pleading filed. Rule 42(8) is peremptory. Therefore, if the rule is not complied with, the pleading filed becomes irregular and as such can be set aside in terms of rule 43(1) which provides that a party to a cause in which an irregular step has been taken by the other party may apply to court to set it aside. In casu the exception and the special plea having been filed without heads of argument to support them, do not comply with rule 42(8).   They are therefore irregular. As such I will set them aside.

In the result, it be and is hereby ordered that:

The exception and special plea filed by the 1st, 2nd, 3rd and 4th respondents on the 04th of March 2022 under case number H.C 5524/2021 are set aside.

The costs of this application shall be in the main cause.

Sibanda and Partners, applicant’s legal practitioners

Mafongoya and Matapura, first, second, third and fourth respondents’ legal practitioners