Marian Chombo v The Partners for the Time Being of Mtetwa & Nyambirai Legal Practitioners

The appellant engaged the respondent, a firm of legal practitioners, to represent her in acrimonious divorce proceedings before the High Court and Supreme Court from 17 June 2011. On 2 September 2014, the parties signed an Acknowledgment of Debt in which the appellant acknowledged being indebted to the respondent in the sum of US$100,000 for legal fees. The respondent's Managing Partner had initially charged US$400,000, which was negotiated down to US$200,000, and eventually the appellant agreed to US$100,000. The appellant made a payment of US$2,360 on 25 January 2024 through her son. The respondent issued summons in January 2024 claiming the US$100,000. The appellant defended on grounds that the fees were excessive, unquantified, untaxed, and raised defences of prescription and the effect of Statutory Instrument 33 of 2019 (which converted US dollar debts to local currency). The High Court granted judgment in favour of the respondent for the full amount claimed.

• Whether the defences of prescription and the application of S.I. 33 of 2019 were properly raised before the court a quo
• Whether prescription had to be specifically pleaded as a special plea or could be raised in a summary of evidence, during trial, or in closing submissions
• Whether the application of S.I. 33 of 2019 (regarding currency of payment) constituted a point of law that could be raised at any stage without special pleading
• Whether the court a quo erred in refusing to determine the effect of S.I. 33 of 2019 on the acknowledgment of debt
• The distinction between pleadings and summaries of evidence in civil procedure

1. The appeal is allowed. 2. The judgment of the court a quo is set aside. 3. The case is remitted to the court a quo before the same Judge for determination of the effect of S.I. 33 of 2019 on the Acknowledgment of Debt signed by the parties on 2 September 2014. 4. The respondent shall pay the appellant's costs.

1. Prescription is a special defence that must be specifically pleaded as a special plea in the formal pleadings filed of record, in accordance with section 20 of the Prescription Act [Chapter 8:11] and Rule 42 of the High Court Rules, 2021. 2. A summary of evidence is a preparatory document that outlines evidence a party intends to rely upon at trial; it is not a pleading and cannot be used to introduce a special plea of prescription or other special defences for the first time. 3. While a summary of evidence may support or elaborate upon a prescription plea already properly pleaded, it cannot itself introduce the defence, as this would circumvent the procedural requirement of formal pleadings. 4. An ordinary point of law, such as the currency of payment under S.I. 33 of 2019 (section 22(1)(d) of the Finance Act No. 2 of 2019), need not be specially pleaded and can be raised at any stage of the proceedings, including on appeal. 5. Where a point of law has been raised in evidence and submissions before the court a quo, the court must determine it even if not formally pleaded.

The Court noted that the appellant's counsel conceded that the payment of US$2,360 made by the appellant on 25 January 2024 had the effect of interrupting prescription. The Court observed that it must avoid making decisions as a court of first instance, especially in cases where the issues on which determination is to be made have been fully ventilated in the court of first instance, hence the decision to remit rather than determine the currency issue itself. The Court confirmed the principle from El Elion Investments (Pvt) Ltd v Auction City (Pvt) Ltd that closing submissions are not pleadings and cannot cure the failure to properly plead an issue that must be pleaded. The Court also noted that pleadings define the procedural framework of a dispute by setting out claims, defences, and issues to be adjudicated, thereby providing notice to the opposing party and guidance to the court.

This case is significant in Zimbabwean civil procedure law as it clearly delineates the distinction between pleadings and summaries of evidence, and reinforces the requirement that special pleas such as prescription must be formally and specifically pleaded in accordance with the High Court Rules and the Prescription Act. The judgment establishes that a summary of evidence, being preparatory in nature, cannot introduce special defences. However, the case also confirms the principle that ordinary points of law, such as those relating to currency of payment under monetary legislation, can be raised at any stage without special pleading. The case provides important guidance on procedural requirements in civil litigation and the proper method of raising different types of defences. It also touches on the application of currency conversion legislation to existing debts, an issue of practical importance in Zimbabwe's evolving monetary environment.