Future Chirango Muvirimi and Others v Ramsway Investments (Pvt) Ltd and Others

The plaintiff sued the defendant. The defendant excepted to the suit and raised a special plea and an application to strike out. The plaintiff's initial summons and declaration (filed 18 November 2015) lacked precision. After a request for further particulars, the plaintiff filed amended summons and declaration on 11 July 2016 without the defendant's consent and without leave of the court, purportedly in terms of Rules 132 and 133. The defendant filed its special plea, exception and application to strike out on 18 July 2016, but this was filed outside the prescribed timelines under Rules 119, 142 and 138 of the High Court Rules, 1971. The defendant also set down the matter on 16 August 2016, which was seven clear days out of time in violation of Rule 138. The plaintiff raised four in limine matters arguing that the defendant's processes were not compliant with the rules of court and should be expunged. Neither party sought condonation for their breaches of the rules.

• Whether the plaintiff's amended summons and declaration were properly filed without consent or leave of court
• Whether the defendant's special plea, exception and application to strike out complied with the timelines prescribed in Rules 119, 142 and 138 of the High Court Rules, 1971
• Whether a plaintiff is required to replicate to a defendant's special plea, exception or application to strike out
• The effect of filing process in breach of peremptory rules of court
• Whether process filed in breach of peremptory rules can stand without condonation

1. The plaintiff's amended summons and declaration are struck off the roll. 2. The defendant's special plea, exception and application to strike out are struck off the roll. 3. Each party to pay its own costs. The status quo ante the purported filing of the parties' respective processes was restored.

Process filed in breach of peremptory rules of court is treated as if it was never filed and will be struck off the roll unless condonation is sought and granted. Rules 132 and 134 require that amendments to pleadings be made either with consent of the other party or with leave of court. Rules 119, 142 and 138 prescribe peremptory timelines for filing special pleas, exceptions and applications to strike out which must be strictly adhered to. Rule 125 of the High Court Rules only applies where a defendant pleads over to the merits and does not require a plaintiff to replicate to a special plea, exception or application to strike out. A plea in terms of Rule 116(1) is the defendant's answer to the plaintiff's declaration dealing with the merits, and is distinct from a special plea or exception.

The court respectfully disagreed with the decision in Khan v Muchenje & Anor HH 126/13 which suggested that a litigant should indicate to the court and the other party that he opposes an exception. Mangota J observed that there is no rule which specifically provides for such a requirement, and what is not provided for in the rules cannot be read into them. The court described the case as having "the characteristics of a see-saw" given that both parties had violated the rules of court in their respective processes.

This case is significant in Zimbabwean civil procedure as it emphasizes the strict adherence required to peremptory rules of court, particularly Rules 119, 132, 134, 138 and 142 of the High Court Rules, 1971. It clarifies that amendments to pleadings require either consent or leave of court, and that timelines for filing special pleas, exceptions and applications to strike out are peremptory and must be strictly observed. The case establishes that process filed in breach of peremptory rules is treated as if never filed, and condonation must be sought for such breaches. It also clarifies that there is no requirement for a plaintiff to replicate to a special plea, exception or application to strike out, and distinguishes the application of Rule 125 which only applies when a defendant pleads over to the merits.