Amanda Berkowitz (nee Cohen) and Waverley Plastics (Private) Limited v Aron Vico and AA Omar and Company and Registrar of Companies N.O.

The plaintiffs initially brought an application for a declaratur that the purported issue and allotment of 245 and 124 ordinary shares to the first defendant and Victor Cohen respectively was null and void, and that the CR2 return of allotment was irregular. On 13 November 2019, the court referred the matter to trial and ordered the plaintiffs to file their declaration within 10 days. Instead of filing their declaration, the plaintiffs appealed to the Supreme Court in SC 624/19. The Supreme Court struck the appeal off the roll on 28 May 2020 by consent with costs against the plaintiffs. On 12 June 2020, the plaintiffs filed their declaration. The first defendant filed a special plea on 2 October 2020 objecting that the declaration was a nullity for having been filed outside the time frame specified in the court order. The first defendant filed heads of argument on 20 October 2020 but did not set down the special plea within 14 days as required by Rule 138.

• Whether the declaration filed by the plaintiffs was a nullity for having been filed outside the time period specified in the court order
• Whether the appeal to the Supreme Court had the effect of suspending the High Court order
• Whether the first defendant's special plea was properly before the court given non-compliance with Rule 138(c)
• Whether the defendant could amend his special plea through oral arguments at the hearing

1. The first defendant's special plea is stood down for determination at the trial; 2. The first defendant is directed to plead over to the merits of the claim within 10 days of this order; 3. The first defendant shall pay plaintiffs' costs of suit.

Rule 138 of the Zimbabwean High Court Rules is mandatory and requires a special plea to be set down within 14 days of filing the heads of argument. A special plea filed but not set down within the prescribed time limit without seeking condonation is improperly before the court and cannot be heard as a preliminary matter but must be stood down for determination at trial. A party cannot amend or expand the grounds of a special plea through oral submissions at the hearing to raise new issues not contained in the written pleadings.

The court observed that it would not be appropriate for the High Court to determine whether an appeal to the Supreme Court was a nullity, as that would be a matter for the Supreme Court itself. The court also noted that the common law position is that the noting of an appeal suspends a judgment except in certain exceptional circumstances, though this was not determinative given that the issue was not properly pleaded. The court commented that punitive costs on the higher scale are only warranted in exceptional circumstances and would not be appropriate where no substantive determination has been made on the merits of the special plea.

This case reinforces the strict application of procedural rules in Zimbabwean civil procedure, particularly Rule 138 governing the setting down of special pleas. It establishes that parties cannot amend their pleadings through oral argument to introduce entirely new grounds not contained in the written pleadings. The case also confirms that compliance with mandatory procedural time limits is essential and that failure to seek condonation for non-compliance has serious consequences. It emphasizes the principle that special pleas that are not properly set down within the required time frame must be determined at trial rather than as a preliminary matter.