Fungai Munyorovi v Weston Sakonda

The plaintiff filed summons against the defendant on 20 August 2020. The defendant entered appearance to defend on 28 August 2020 after being served on 25 August 2020. On 21 September 2020, the plaintiff issued a notice to plead and intention to bar, which was served on the defendant on the same date. On 25 September 2020, the defendant filed a special plea raising the defense of lis pendens. The special plea was filed three days outside the time prescribed in Rule 119 of the High Court Rules 1971, which required the defendant to file his plea, exception or special plea within ten days of service of the plaintiff's declaration. At the commencement of the hearing, the defendant indicated his intention to apply for condonation of late filing. The plaintiff objected, arguing the special plea was filed out of time, violated the rules, and was a nullity. The plaintiff also argued that the special plea was prematurely set down before the period specified in Rule 138 had elapsed. The defendant countered that the notice to plead was fatally defective in form and substance.

• Whether a special plea filed outside Rule 119 of the High Court Rules 1971 is a nullity
• Whether condonation for late filing of a special plea is permissible
• At what stage an application for condonation of late filing of a special plea ought to be made
• Whether the notice to plead and intention to bar was properly filed in accordance with the rules
• Whether a special plea filed out of time but otherwise properly pleaded is fatally defective or merely irregular and invalid

The special plea was removed from the roll as it was improperly before the court. The defendant was ordered to pay the wasted costs of the hearing. The court indicated the defendant was at liberty to make a proper application for condonation of failure to comply with the rules.

A special plea filed outside the time prescribed in Rule 119 of the High Court Rules 1971 (or its equivalent in the new rules) is not a nullity but rather an irregular and invalid pleading that is condonable under Rule 4C(a) (now Rule 7(a) of the High Court Rules 2021). A breach of Rule 119 is not visited with nullity. A fatally defective pleading is one that does not conform to required substance or form and has a bearing on the cause of action—it is incurably bad and cannot be condoned. An irregular step constitutes a defect that is condonable. Where a foundational pleading such as a special plea is filed out of time, an application for condonation must be made and granted before the court can entertain the matter. Condonation for non-compliance with the rules must be sought as soon as the non-compliance becomes apparent and within a reasonable time. A court will not entertain a special plea filed outside the rules in the absence of condonation.

The court made important observations about legal practice: The mislabeling of notices of intention to bar as "notices to plead and intention to bar" is a widespread error resulting from legal practitioners copying precedents without investigating their authority. It is the duty of legal practitioners to ensure they file correct pleadings based on provisions of the rules rather than engaging in copy-and-paste practices. The court noted that wrong jurisprudence has been created through this practice. The court also observed that the rules are made for the court and not the court for the rules, and the provisions of the rules are not strictly peremptory, though strong grounds must be advanced to persuade the court to act outside them. The court expressed concern that a plaintiff should not attempt to bar a defendant from making an application for condonation—whether the defendant is entitled to condonation is a matter to be determined when the application is properly made. The court cannot stop a litigant from making an application they wish to make, especially one for condonation, regardless of the court's view on its merits.

This judgment is significant in Zimbabwean civil procedure as it clarifies important distinctions in court practice: (1) It distinguishes between fatally defective pleadings that are nullities (incurably bad and cannot be condoned) and irregular pleadings that are merely invalid (condonable under Rule 4C/Rule 7 of the new rules); (2) It establishes that a special plea filed out of time is not automatically a nullity but rather an irregular step that is invalid and requires condonation; (3) It clarifies that condonation must be sought and granted before a special plea filed out of time can be entertained by the court; (4) It corrects the widespread practice error of mislabeling notices of intention to bar as "notices to plead and intention to bar"; (5) It emphasizes the duty of legal practitioners to ensure they file correct pleadings based on provisions of the rules rather than blindly copying precedents. The judgment provides important guidance on when court rules are strictly peremptory versus when departures can be condoned in the interests of justice.