Blooming Lilly Investments (Private) Limited and Reytalon Limited v Ontage Resources (Private) Limited and Tapiwa Zebron Gurupira and Tawanda Elias Gurupira and The Registrar of Companies (N.O)

The plaintiffs sued the defendants alleging that the defendants had illegally obtained certain benefits or advantages from them in violation of provisions of the Companies Act [Chapter 24:03]. The plaintiffs sought an order declaring as null and void the benefits or advantages which the defendants allegedly obtained. The defendants entered appearance to defend and raised four special pleas centred on locus standi, lack of authority to sue, prescription and absence of cause of action. The defendants filed Heads of argument and the plaintiffs also filed Heads, but critically, the plaintiffs failed to file any replication to the special pleas raised by the defendants.

• Whether the failure to file a replication to special pleas constitutes an admission that the special pleas are well-taken
• Whether the distinction between special pleas and exceptions is material to procedural requirements
• Whether a plaintiff can include its response to special pleas in its heads of argument rather than in a formal replication
• Whether heads of argument can serve as a substitute for a litigant's pleadings

The special pleas raised by the defendants were upheld. The plaintiffs' claim was dismissed with costs.

Where a defendant raises special pleas, a plaintiff must file a replication to those special pleas. Failure to file a replication constitutes an admission that the special pleas are well-taken, and results in there being no triable issues for determination by the court. A replication to special pleas cannot be made through heads of argument, as heads of argument are points of law prepared by legal practitioners and not averments of the litigant. Special pleas, unlike exceptions, require the introduction of fresh facts from outside the pleadings which must be rebutted by evidence introduced through a replication. In the absence of a replication to a special plea, the issues raised in the special plea remain unchallenged and there are no disputes for determination.

The court made observations distinguishing the role of legal practitioners from that of litigants, stating that legal practitioners cannot act as both the litigant and the legal practitioner representing the litigant. The court cautioned against the 'unwholesome tendency' of legal practitioners wanting to play both roles simultaneously, emphasizing that each person must play the role which the rules of court and the law of practice and procedure ascribes to them. The court also noted that the plaintiffs appeared to have suffered from a 'genuine but mistaken confusion' between the concepts of special plea and exception, suggesting this confusion led to their procedural error. The court observed that if the plaintiffs had properly understood that special pleas are established by introduction of fresh facts outside the circumference of pleadings, they would have known they had to rebut such facts by way of replication.

This case is significant in Zimbabwean (and by extension South African) civil procedure for clearly articulating the mandatory requirement to file a replication to special pleas and the consequences of failing to do so. It reinforces the distinction between special pleas and exceptions, and firmly establishes that heads of argument cannot substitute for proper pleadings. The judgment serves as an important reminder to legal practitioners about the strict procedural requirements in civil litigation and the distinction between a legal practitioner's role and the litigant's role in pleadings.