Reverend Clifford Nunu Ndlovu v La Fontaine College and Oswell Madya

The appellant issued summons claiming US$750.00 for the value of his generator leased to the respondents, including interest and costs. The respondents filed a special plea alleging that the same matter was lis pendens under case 1311/20, in which the appellant had sued for outstanding amounts in respect of the generator plus holding charges. A month after the special plea was filed, the appellant applied for summary judgment. The court below upheld the special plea at the hearing of the application for summary judgment on the basis that it was the same cause of action, which disposed of the application for summary judgment. The court also remarked that summary judgment would not have been granted because the claim was not based on a liquid document.

• Whether the special plea could be heard simultaneously with the application for summary judgment when it was filed a month before the summary judgment application
• Whether the special plea remained properly before the court given the failure to set it down within the prescribed time periods under Order 14 Rules 6 and 7
• Whether the claim in case 184/21 was the same as the claim in case 1311/20 (lis pendens)
• Whether the claim for the generator was based on a liquidated amount

1. The appeal partially succeeds with costs. 2. The judgment of the court below is substituted to read: (a) The special plea being invalidly before the court for non-compliance with the rules is struck off. (b) The application for summary judgment is dismissed. (c) Each party to pay their own costs.

Where a special plea has been filed, it can only be heard together with an application for summary judgment if: (1) the application for summary judgment was filed first, and (2) particulars of the special plea were delivered before the hearing of the summary judgment application (Order 14 Rule 6(4)). Where a special plea is filed but not set down for hearing within the time periods prescribed by Order 14 Rule 7 (consent within 7 days, or either party setting it down within a further 48 hours), the special plea falls away and is no longer properly before the court. The party who filed the special plea must then plead to the merits, and the special plea cannot be set down for hearing before trial. Failure to comply with these procedural requirements renders the special plea invalid and it must be struck off.

The court observed that even if the special plea had been properly before the court, the magistrate had indicated that summary judgment would not have been granted because the claim was not based on a liquid document. The appellant conceded this point. The court also noted that once it was determined that the special plea was not properly before the court, all grounds relating to the hearing of that special plea (including the lis pendens argument) necessarily succeeded, as they should not have been considered in the first place.

This case clarifies the procedural requirements for hearing special pleas in conjunction with summary judgment applications under Order 14 of the Zimbabwean High Court Rules. It emphasizes the strict time limits within which special pleas must be set down for hearing and the consequences of failing to comply with these time limits. The case establishes that a special plea filed before a summary judgment application cannot automatically be heard with that application unless it was properly set down within the prescribed time periods. The case is important for practitioners in understanding the automatic bar against defendants who fail to have special pleas heard within the stipulated times.