John Farley Piertersen and Mark Johnstone v Duration Gold Zimbabwe (Pvt) Ltd and All Aflame Marketing (Pvt) Ltd

The plaintiffs issued summons on 28 July 2021 claiming cancellation of a Joint Venture Agreement entered into with the defendants on 18 December 2012. The agreement related to certain mining claims registered in the 2nd defendant's name. Plaintiffs alleged that the parties were shareholders in the 2nd defendant, with shareholding split 57.45% for plaintiffs and 42.55% for the 1st defendant. The agreement provided that the 1st defendant would be responsible for exploration of the mining claims while plaintiffs would manage the joint venture. Plaintiffs claimed that the 1st defendant breached material terms of the agreement, causing them damages. The defendants filed a plea in bar alleging: (1) Duration Gold Zimbabwe did not enter into a Joint Venture Agreement with plaintiffs; (2) Duration Gold Zimbabwe did not enter into any agreement with Mark Hageman as stated by plaintiffs; and (3) Duration Gold Zimbabwe is not a shareholder of All Aflame Marketing (Pvt) Ltd and cannot satisfy the orders sought.

• Whether the defendants' plea in bar was properly brought as an alternative to pleading to the merits
• Whether the plea in bar raised matters of substance that did not involve going into the merits of the case
• Whether a plea in bar that denies facts pleaded in the declaration and raises defences on the merits is permissible
• Whether the defendants' contentions regarding lack of privity of contract should be raised by way of plea in bar or by exception

The plea in bar was dismissed with costs on a party and party scale.

A plea in bar, as an alternative to pleading to the merits, must raise matters of substance that do not involve going into the merits of the case. A plea in bar that is predicated on the denial of facts pleaded in the declaration and raises defences on the merits of the dispute is impermissible and will be dismissed. Parties cannot use a plea in bar as a vehicle to dispute the factual and substantive merits of a claim. Where a party contends there is no cause of action, the proper procedure is to file an exception under Rule 42(1)(b) of the High Court Rules, 2021, not a plea in bar.

The court observed that even if the defendants had adduced evidence in support of their special plea, such evidence would not have rescued the plea in bar because what they placed before court was not an alternative to pleading to the merits but was actually a plea founded on the merits. The court declined to award costs on a legal practitioner and client scale as requested by the plaintiffs, noting that no case had been made for such an order, and awarded costs on the ordinary party and party scale in accordance with the general rule that the successful party should be given its costs unless there are good grounds for deviating from this rule.

This case clarifies the proper use of a plea in bar in Zimbabwean civil procedure. It reinforces the principle that a plea in bar must be an alternative to pleading to the merits and cannot be used to raise defences that go to the substance and merits of the dispute. The judgment emphasizes the distinction between proper special pleas (such as lis pendens, res judicata, lack of jurisdiction, prescription) and matters that should be dealt with either through pleadings to the merits or exceptions. It serves as a precedent for courts to dismiss pleas in bar that are disguised attempts to dispute the merits of a case at an interlocutory stage. The case also clarifies that contentions regarding lack of cause of action should be raised by way of exception rather than plea in bar.