Great Insight Investments (Pvt) Ltd and Nyland Enterprises (Pvt) Ltd v Chemist Siziba and Dwellworth Marketing (Pvt) Ltd and Mavista Investments (Pvt) Ltd and Chief Registrar of Deeds N.O

The plaintiffs filed an exception and plea in bar to the first defendant's claim in reconvention on 20 May 2014, together with heads of argument. The exception and special plea was only set down for hearing on 14 January 2016, pursuant to an application for set down filed on 13 October 2015 by the plaintiffs' legal practitioners. This was done more than a year outside the prescribed time periods under Order 21 Rule 138, which requires that if parties do not consent within 10 days to set down, or if either party does not set down within a further 4 days, the party must plead over to the merits within a further 4 days and the matter cannot be set down for hearing before trial. Neither party raised the non-compliance issue in their heads of argument, and no point in limine was taken by respondents at the hearing.

• Whether Order 21 Rule 138(c) had been abrogated by disuse
• Whether the court should exercise its discretion under Rule 4(c) to condone non-compliance with the peremptory provisions of Rule 138(c)
• Whether the requirement to file heads of argument under Rule 238(1)(a) made compliance with Rule 138 impossible
• Whether a special plea and exception could be set down for hearing before trial when filed outside the time periods prescribed in Rule 138(a) and (b)

The matter was dismissed with each party paying its own costs on the basis that it was not properly before the court due to non-compliance with the peremptory provisions of Order 21 Rule 138(c).

Order 21 Rule 138(c) of the High Court Rules is peremptory and remains in full force and effect, having not been abrogated by disuse. Where a special plea, exception or application to strike out has been filed, and parties have not consented within the prescribed 10 days to set down under Rule 138(a), and no party has set down within a further 4 days under Rule 138(b), the party must plead over to the merits within a further 4 days and the special plea, exception or application shall not be set down for hearing before trial. Non-compliance with this peremptory rule renders a matter not properly before the court. The court will not readily exercise its discretion under Rule 4(c) to condone flagrant and inexcusable breaches of peremptory procedural rules, particularly where the breach involves significant delay (such as applying for set down more than a year outside the prescribed period).

The court expressed concern about a growing tendency of legal practitioners becoming too relaxed in their observance of court rules, taking it for granted that courts will readily condone non-compliance when moved to exercise discretion under Rule 4(c). The court noted that while rules should not be rigidly applied as a matter of principle, there is a real risk that unchecked resort to relaxation of rules could further undermine the quality of legal representation in the superior courts. The court commented that when faced with inexcusable breaches, legal practitioners often argue that rules are meant for the court's convenience in doing justice and not vice versa, but this approach is problematic when it encourages non-observance of clear procedural requirements.

This case is significant for emphasizing the continuing validity and peremptory nature of procedural rules governing the set down of exceptions and special pleas. It serves as a warning against the growing tendency of legal practitioners to disregard court rules expecting automatic condonation. The judgment reinforces that courts will not readily exercise discretion to condone non-compliance with peremptory procedural rules, particularly where there has been flagrant and inexcusable breach. It confirms that Rule 138(c) has not been abrogated by disuse and remains binding, and that the requirement to file heads of argument under Rule 238 does not render compliance with Rule 138 impossible or excuse non-compliance. The case underscores the importance of strict adherence to procedural timelines in Zimbabwean civil procedure.