Jen Technologies (Pvt) Ltd and Taboka Maphosa v Old Mutual Life Assurance Company Zimbabwe (Private) Limited

The plaintiffs issued summons and a declaration against the defendant on 29 May 2024. The defendant entered appearance to defend on 4 June 2024. On 5 June 2024, the defendant wrote to the plaintiffs in terms of Rule 42(1)(a) read with sub-rule 3 of the High Court Rules 2021, identifying defects: (a) citation of a non-existent party (the defendant's correct name was "Old Mutual Insurance Company Private Limited" not "Old Mutual Life Assurance Company Zimbabwe (Private) Limited"), and (b) lack of peremptory details on the summons and declaration in terms of Rule 12(5)(b) and (c) read with Rule 13(1)(a). The defendant gave the plaintiffs 12 days to remedy the defects. On 21 June 2024, the plaintiffs refused to take remedial steps and only addressed the citation issue. On the same day, the plaintiffs filed a Notice of Amendment giving the defendant 10 days to object. On 24 June 2024, the defendant protested the lack of service of the notice of amendment. On 25 June 2024, the plaintiffs filed a notice to plead and intention to bar, requiring the defendant to file its plea within 5 days. On 26 June 2024, under protest, the defendant filed its objection to the amendment and simultaneously filed a Special Plea with Heads of Argument.

• Whether the defendant's special plea was filed outside the prescribed 10-day period under Rule 37(3) of the High Court Rules 2021
• Whether the citation of a non-existent party rendered the summons null and void
• Whether the summons complied with the peremptory requirements of Rule 12(5)(b) and (c) of the High Court Rules 2021
• Whether the issue raised was properly a special plea or an exception
• Whether the defendant could benefit from its own conduct in being wrongly cited

1. The special plea was upheld. 2. The plaintiffs' summons and declaration were struck off for want of compliance with the Rules. 3. The 1st and 2nd plaintiffs were ordered to pay costs on an attorney-client scale, one paying for the other to be absolved.

A summons that cites a non-existent legal entity is null and void and cannot sustain an action. The peremptory requirements of Rule 12(5)(b) and (c) of the High Court Rules 2021 must be strictly complied with. Where a plaintiff initiates an amendment process but simultaneously files a notice to plead and intention to bar, thereby creating confusion and effectively abandoning the amendment application, the dies for the defendant to file a special plea runs from the point when it becomes clear that the amendment has been abandoned, not from the initial entry of appearance to defend. A party cannot benefit from their own non-compliance with court rules or from creating procedural confusion that prejudices the opposing party.

The court observed that when senior counsel writes a letter, whether as a mandatory requirement of the rules or out of professional courtesy, there is a reciprocal duty of professional courtesy to carefully read the letter, understand its contents, and promptly reply. While it is not required to agree, it is advisable to disagree in a courteous manner citing the rules or authority relied upon. The court noted that it does not usually yield favorable results to sit on correspondence and reply only on the very last day of an ultimatum. The court expressed disapproval of the plaintiffs' counsel's conduct in dealing with only one part of the defendant's complaint while completely ignoring the other, and for creating two self-destructing processes that would cause detriment to the defendant regardless of which route was followed.

This case emphasizes the importance of strict compliance with the peremptory provisions of the High Court Rules 2021, particularly Rule 12 regarding the contents of summons. It demonstrates that citation of a non-existent legal entity renders summons null and void and incapable of sustaining an action. The case also illustrates the application of the doctrine that a party cannot benefit from their own wrong, and highlights the professional duty of legal practitioners to engage constructively with correspondence from opposing counsel, particularly when such correspondence is grounded in court rules. The case provides guidance on when the dies for filing a special plea commences when an amendment process has been initiated but subsequently appears to have been abandoned.