Church of the Province of Central Africa v Mr Elson M Jakazi and Others

The plaintiff church issued summons against twelve defendants on 1 October 2008, seeking an order declaring that the defendants had seceded from the plaintiff church, restraining them from holding themselves as office bearers in the Manicaland Diocese, and evicting them from the plaintiff's property. The defendants filed a plea denying they had seceded and challenging the legality of any divesture. After pleadings closed and during pre-trial conference, the defendants raised issues of locus standi and non-citation of the Board of Trustees. The presiding judge at pre-trial conference directed the defendants to file an exception outside the usual time limits to deal with these issues. The defendants filed an exception and special plea on 27 April 2009 alleging the claim was bad in law and did not set out a valid cause of action. Prior to the resumed hearing of the exception, the defendants withdrew it by written notice dated 24 February 2010 and simultaneously filed a notice to amend their plea at trial to add a special plea in virtually identical wording. The plaintiff sought costs for the withdrawn exception.

• Whether a party who withdraws an exception should be ordered to pay the opponent's wasted costs
• Whether substituting a withdrawn exception with a special plea to be raised at trial absolves a party from liability for wasted costs
• The proper exercise of judicial discretion in awarding costs where a pleading is withdrawn

The defendants were ordered to pay the plaintiff's wasted costs occasioned by the withdrawal of the exception.

In a party-driven legal system, any party is entitled to withdraw its pleadings (including exceptions) provided this does not cause injustice to the other party. Where a party withdraws an exception after the opposing party has incurred costs in considering or dealing with it, the withdrawing party must pay the opponent's wasted costs. This liability for wasted costs arises regardless of whether the withdrawing party substitutes the withdrawn pleading with another pleading raising similar issues, and regardless of whether the same dispute remains before the court. The relevant consideration for awarding costs is whether the opposing party was put to expense by the filing of the withdrawn pleading, not the ultimate outcome or continuation of the dispute in another form.

MAKARAU JP made observations about the underlying church dispute, noting that the spate of litigation between the two factions of the "Anglicans" was "now assuming nuisance value." The judge also commented on procedural uncertainties following the withdrawal of the exception, noting that it was unclear what should happen procedurally since the pre-trial conference had not been concluded and issues for trial had not been agreed upon. The judge observed that "this matter will be before the courts for a while longer than is necessary" and that "the parties may have to make a further approach to this court for directions." The judge further noted that unless amended, the special plea to be raised at trial was "worded in the exact language used in the exception" and questioned whether the issues raised were properly characterized as a special plea or were simply issues arising from the plea on the merits that would be determined at trial.

This case reinforces the principle in Zimbabwean civil procedure that a party who withdraws a pleading (such as an exception or special plea) must tender the opposing party's wasted costs, regardless of whether the same issues remain before the court in a different form. It clarifies that substituting a withdrawn exception with a special plea to be raised at trial does not absolve a party from liability for costs already incurred. The case emphasizes that the discretion to award costs must be exercised judiciously and guided by the established principle of compensating parties for wasted expense. It also provides guidance on proper case management where exceptions are withdrawn and highlights the court's concerns about protracted litigation and procedural uncertainties in complex church property disputes.