Hausen (Pvt) Ltd v CMA CGM Zimbabwe (Pvt) Ltd

Plaintiff, a meat exporter dealing in perishable fresh meat products, contracted defendant (a shipping service provider) in November 2019 to transport a consignment of meat from Zimbabwe to Vietnam via the Beira corridor. Defendant was to supply specialized refrigerated containers called "reefers". Plaintiff alleged that defendant conducted inspections at Beira port and assured suitability, but ultimately failed to supply functional reefers, resulting in the meat spoiling and losing commercial value. Plaintiff issued summons on 29 September 2020 claiming USD$100,000 in restitution and USD$50,000 in contractual damages. Defendant entered appearance on 7 December 2020 with a simultaneous request for further particulars. After particulars were supplied on 11 October 2021, defendant filed an exception on 9 November 2021. Plaintiff then raised a point in limine that the exception was filed out of time.

• Whether the exception was filed timeously under the applicable rules of court
• Which rules of court applied: the repealed High Court Rules 1971 or the new High Court Rules SI 202/2021
• Whether a request for further particulars interrupted the period for filing an exception
• Whether the repeal of the old rules lifted the bar on late filing of exceptions
• The effect of section 17 of the Interpretation Act on rights and obligations accrued under repealed legislation

1. The plaintiff's point in limine was upheld. 2. The defendant's exception was dismissed with costs.

Where summons were served under the High Court Rules 1971, the obligation to file an exception within 20 days pursuant to Order 18 rule 119 remained binding even after those rules were repealed and replaced. The repeal of legislation does not revive expired rights or extinguish accrued obligations. Section 17 of the Interpretation Act [Chapter 1:01] preserves rights, privileges, obligations and liabilities acquired or incurred under repealed legislation. A defendant who fails to file an exception within the mandatory 20-day period prescribed by the old rules is barred from filing that exception, and this bar is not lifted by the subsequent promulgation of new rules. A request for further particulars does not interrupt the running of the period for filing an exception.

The court observed, citing General Leasing (Pvt) Ltd v Allied Timbers (Pvt) Ltd HH 76-15, that a defendant who loses the opportunity to except at the early stage must plead over to the merits and can only have the special plea, exception or application determined at trial. The court also noted the irony that both parties sought costs on a higher scale against each other, reflecting the intractability of their positions.

This case clarifies the application of transitional rules when court rules are repealed and replaced. It establishes that rights, privileges, and obligations that accrued under repealed rules are preserved by section 17 of the Interpretation Act and are not automatically neutralized by the promulgation of new rules. The judgment reinforces the strict and mandatory nature of time limits for filing exceptions under the old High Court Rules 1971, particularly the principle from Sammy's Group that failure to file within the prescribed 20-day period creates an absolute bar absent condonation. It also confirms that requests for further particulars do not interrupt the running of time for filing exceptions. The case provides important guidance on determining which procedural rules apply when litigation straddles the transition between old and repealed rules and new rules.