Guta Ra Mwari v Guta Ra Mwari, Tshabalala

The plaintiff, Guta Ra Mwari (established in 1961 with constitution registered in 1974), instituted proceedings against a defendant described as "Guta Ra Mwari, Tshabalala" (established in 2014 with constitution registered in January 2014). On 9 September 2014, the defendant filed a special plea arguing that there was no legal entity known as "Guta Ra Mwari, Tshabalala" and that plaintiff was suing a non-existent institution, or alternatively that plaintiff could not sue itself. Nearly three months later, on 18 December 2014, the defendant filed an application to strike out the plaintiff's summons and declaration in terms of Rule 141(a)(ii) and (iii), arguing that: the declaration did not allege the defendant had legal personality; the parties had the same name; there were no two parties before the court; and consequently the pleadings were vague, evasive, embarrassing, inconsistent, contradictory and prejudicial. The plaintiff raised a point in limine challenging the procedural regularity of the application to strike out.

• Whether the defendant's application to strike out complied with Rule 140 requiring a letter of complaint before filing such an application
• Whether the application to strike out complied with Rule 139(1) requiring all special pleas, exceptions and applications to strike out to be filed at one time
• Whether the application to strike out complied with Rule 137(1)(c) and Rule 141 requiring the application to specify particular paragraphs to be struck out
• Whether the plaintiff's point in limine should be upheld

The point in limine was upheld and the application to strike out was dismissed with costs.

An application to strike out pleadings that does not comply with the mandatory procedural requirements of the High Court Rules is irregular and must be dismissed. Specifically: (1) Rule 140 mandatorily requires that a letter of complaint must precede any application to strike out pleadings; (2) Rule 139(1) mandatorily requires that all special pleas, exceptions and applications to strike out must be filed at one time - there is no discretion to file them separately; and (3) Rules 137(1)(c) and 141 require that applications to strike out must specify the particular paragraphs to be struck out, not seek to strike out entire pleadings without such specification.

The court described the non-compliant application as "strange and irregular," suggesting that the procedural defects were fundamental and obvious. While not explicitly stated, the court's reasoning implies that had the defendant wished to challenge the entirety of the pleadings on the basis that no proper parties existed before the court, the special plea mechanism (which had already been filed) was the appropriate procedural vehicle for such a challenge rather than an application to strike out under Rule 141.

This case reinforces the strict application of procedural rules in Zimbabwean civil litigation, particularly regarding applications to strike out pleadings. It confirms that compliance with the High Court Rules is mandatory and not discretionary, especially Rule 139(1) requiring all special pleas, exceptions and applications to strike out to be filed simultaneously. The case also emphasizes that applications to strike out must be preceded by a letter of complaint (Rule 140) and must specify particular paragraphs to be struck out (Rules 137 and 141). The judgment demonstrates that failure to comply with these procedural requirements will result in the application being dismissed as irregular, regardless of the potential merits of the substantive complaint.