Cairns Foods (Pvt) Ltd v Reddy Cash and Carry (Pvt) Ltd

The plaintiff issued summons against the defendant on 4 March 2013 seeking payment of US$10,996.26 for goods sold and delivered to the defendant at its instance and request. The defendant entered appearance on 13 March 2013 and filed a special plea in abatement raising prescription, alleging that the cause of action arose in December 2009 or January 2010. The defendant simultaneously pleaded over to the merits of the claim. On 30 April 2013, the same day the plea was filed, the defendant applied for the special plea to be set down for hearing. There was no evidence of compliance with Rule 138(a) and (b) of the High Court Rules, which require consent or application within specified time periods before a special plea can be set down separately from trial.

• Whether a special plea can be set down for hearing separately before trial where the party raising the special plea has pleaded over to the merits
• Whether there was compliance with the procedural requirements of Rule 138 of the High Court of Zimbabwe Rules 1971 for setting down a special plea

1. The special plea is hereby stood down until the trial date. 2. The costs shall be costs in the cause.

Where a defendant files a special plea and pleads over to the merits of a claim, and there is no compliance with the consent or application requirements under Rule 138(a) and (b) of the High Court of Zimbabwe Rules 1971, the special plea cannot be set down for hearing separately before trial but must be stood down until the trial date in accordance with Rule 138(c).

The court did not make substantive observations beyond the procedural ruling. The judgment is strictly focused on the application of Rule 138 without addressing the merits of the prescription defense or the underlying claim for payment.

This case reinforces the procedural requirements for setting down special pleas in Zimbabwean civil procedure. It emphasizes that parties must strictly comply with Rule 138 of the High Court Rules 1971, and that where a party has pleaded over to the merits after raising a special plea, and there is no consent or timely application to set down the special plea separately, the special plea must be heard at trial rather than as a preliminary matter. The case serves as a reminder of the importance of procedural compliance in civil litigation.