Bitcon (Private) Limited t/a Kuchi Construction v Two Penny Trading (Private) Limited

The parties held a pre-trial conference before Muremba J. During the pre-trial conference, the learned judge meaningfully engaged the parties and their legal practitioners. Through this engagement, it was discovered that the respondent's claim may have prescribed. The applicant had overlooked the issue of prescription when it initially filed its plea. Following this discovery at the pre-trial conference, Muremba J did not proceed with the conference but allowed the applicant to apply to amend its plea to include a special plea of prescription. The applicant sought to include a plea that the respondent's claim, arising from services allegedly rendered, had prescribed because summons was issued on 11 September 2015 but only served on 15 September 2015, more than three years after the alleged undertaking to pay on 12 September 2012. The respondent opposed the amendment application, arguing that the real issue was simply whether or not the applicant paid for services rendered, and that prescription had not been pleaded originally.

• Whether the court should allow the applicant to amend its plea to include a special plea of prescription at the pre-trial conference stage
• Whether the amendment would prejudice the respondent or cause injustice
• Whether prescription can be raised at any stage of civil proceedings
• The role and powers of a judge presiding at a pre-trial conference

The application was granted as per the applicant's draft order, subject to the rider that the applicant shall bear the costs of the application.

The binding legal principles established are: (1) A court may, in the exercise of its discretion under Rule 132 of the High Court Rules, 1971, allow a party to amend its pleadings at any stage of proceedings, including after a pre-trial conference, where necessary to determine the real questions in controversy between the parties; (2) An amendment of pleadings will be allowed unless the application is mala fide or the amendment would cause injustice or prejudice to the other side which cannot be compensated by an order of costs; (3) Prescription may be raised at any stage of civil proceedings in accordance with section 20(2) of the Prescription Act [Chapter 8:11]; (4) A pre-trial conference judge has the authority to engage parties meaningfully, give directions, and assist parties in identifying issues (including previously unpleaded issues) that form the real dispute between the parties, and may allow a party to apply to amend pleadings following such discovery at the pre-trial conference.

The court made observations about the respondent's argument being misplaced, noting that the respondent failed to state what its position would have been if the applicant had pleaded prescription originally. The court observed that the issue of whether or not the applicant paid for services was not necessarily the only or exhaustive issue between the parties - it could be that issue alone, or together with other issues including prescription. The court also made a general observation that it is at the pre-trial conference stage that the presiding judge gives directions to parties to amend their pleadings. The court commented that the application "unnecessarily put the respondent to unjustified expense," suggesting that perhaps the matter could have been resolved more efficiently, though this did not prevent the court from granting the application.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the broad discretion of courts to allow amendments of pleadings at any stage of proceedings under Rule 132 of the High Court Rules, 1971; (2) the important facilitative role of pre-trial conference judges in meaningfully engaging parties, giving directions, and assisting parties to identify all real issues in dispute; (3) the principle that prescription can be raised at any stage of civil proceedings pursuant to section 20 of the Prescription Act; and (4) the liberal approach courts take toward amendments unless they are mala fide or cause irremediable prejudice. The case demonstrates the proper functioning of the pre-trial conference mechanism as designed to bring all real issues to the fore before trial.