Tapiwa Mark Chimombe v Audrey Rungano Chimombe (nee Magume)

The parties were married in terms of the Marriage Act, Chapter 5:11. On 18 February 2019, the plaintiff instituted divorce proceedings under HC 1271/19. The defendant entered appearance to defend and filed a plea and counterclaim on 7 March 2019. The plaintiff filed a replication and plea to the counterclaim on 20 March 2019. On 8 May 2019, the plaintiff withdrew his action in HC 1271/19, but the defendant did not withdraw her counterclaim. The plaintiff then instituted a second divorce action on 7 February 2020 under HC 950/20. In response to this second action, the defendant filed a special plea of lis alibi pendens on 19 June 2020, arguing that there was litigation still pending between the parties on the same subject matter under HC 1271/19 due to her outstanding counterclaim. The defendant sought to have the matter determined on the basis of pleadings and heads of argument without leading oral evidence. The plaintiff raised a point in limine that the defendant had used the wrong procedure by setting down the special plea for argument without the hearing of evidence.

• Whether a special plea of lis alibi pendens can be determined solely on the basis of pleadings and heads of argument without the leading of oral evidence
• What is the proper procedure for disposing of a special plea
• Whether the introduction of fresh facts in a special plea requires the adduction of evidence even when certain facts are common cause

1. The point in limine raised by the plaintiff was upheld with costs. 2. The parties were ordered to lead evidence before a ruling on the special plea.

A special plea introduces fresh facts which do not appear from the original pleadings and therefore requires the leading of oral evidence before determination. The basic difference between an exception and a plea in abatement is that in the case of a plea in abatement evidence must be led, whereas in the case of an exception the facts stated in the pleadings must be accepted. Where a party raises a special plea as a defence, new facts arise, and because of the introduction of fresh facts which did not appear in the declaration, there is need for a court to hear the evidence of the parties where facts are disputed before making a ruling on the plea. This general rule applies unless the parties agree to a stated case or the introduced fresh facts are entirely undisputed and resolution of the plea does not require determination of material factual disputes.

The court observed that if the defendant intended to curtail the proceedings by not leading evidence, she could have at least settled for a stated case with the plaintiff. The court also noted that dismissal of the special plea would not be an appropriate remedy when the special plea was not heard on merits - the plaintiff had merely succeeded in showing that the procedure adopted was improper, which warranted an order for proper procedure to be followed rather than dismissal of the plea itself.

This case reinforces the fundamental procedural distinction between exceptions and special pleas in Zimbabwean civil procedure. It establishes that special pleas, including pleas of lis alibi pendens, generally require the leading of oral evidence and cannot be disposed of merely on the basis of pleadings and heads of argument. The case is significant in confirming that even where certain facts are common cause, the existence of disputed material facts or triable issues requires the matter to proceed to evidence. The judgment emphasizes the importance of following proper procedure in civil litigation and protects parties' rights to lead evidence on material disputes.