Taurai Buyanga v Colin Mervyn Kendall and Others

The applicant (plaintiff in the main action HC 1482/17) issued summons on 6 June 2017 claiming damages of US$448,000 and additional damages for loss of income from gold milling plants allegedly resulting from violation of a confidentiality and non-circumvention agreement by the defendants, who owed fiduciary duties to Calomondin Trading (Pvt) Ltd in which the plaintiff held 25%. The defendants entered appearance to defend and filed an exception and special plea on 6 October 2017. On 25 October 2017, defendants applied for a set down date by filing a notice of set down. On 8 November 2017, the plaintiff filed a notice of intention to bar and subsequently barred the 1st, 2nd and 4th defendants, arguing that the special plea and exception had not been set down within 14 days as required by the rules. The plaintiff then brought this application seeking a default judgment on the basis that the defendants were barred and the matter was unopposed. The defendants contested this, arguing that they had applied for a set down date within the required timeframe and that a separate application (HC 3200/17) challenging the validity of the bar was pending.

• Whether the defendants complied with Order 21 Rule 138 of the High Court Rules regarding the procedure for setting down a special plea and exception for hearing
• Whether the matter should be treated as unopposed in circumstances where defendants had filed an exception and special plea and applied for a set down date within the prescribed time
• Whether the notice to bar issued by the plaintiff was valid given that the special plea and exception had not yet been finalized
• What constitutes compliance with the requirement to 'set down' a matter within the specified time period under the rules

1. The matter is improperly before the court. 2. The matter will not be set down on the unopposed roll until the special plea is set down. 3. The matter will not be set down on the unopposed roll until case number HC 3200/17 has been finalized. 4. Costs shall be in the cause.

Under Order 21 Rule 138 of the High Court Rules, where there is no consent to set down a special plea or exception within 10 days of filing, compliance with the requirement to 'set down' the matter within a further 4 days is satisfied by filing heads of argument and submitting an application for set down to the Registrar within that period. A litigant is not required to obtain an actual hearing date within the 4-day period, as the allocation of a judge and set down date is within the control of the Registrar, not the parties. Where a party has complied with this procedural requirement, a notice to bar based on alleged non-compliance with the set down timeframe is invalid, and the matter cannot be treated as unopposed.

The court observed that it would be illogical to argue that where an exception has not been set down, the matter becomes uncontested, particularly given that Rule 138(c) provides that exceptions not set down will be heard at trial. The court noted that the plaintiff's legal practitioner had been unreasonable in refusing to see the merits of the defendants' arguments, and commented that even the plaintiff's counsel himself submitted during the hearing that in his view the matter should be heard on the merits, though his instructions were to the contrary - suggesting a disconnect between legal advice and client instructions.

This case clarifies the interpretation and application of Order 21 Rule 138 of the High Court Rules of Zimbabwe regarding the procedural requirements for setting down special pleas and exceptions for hearing. It establishes that compliance with the rule requires filing an application for set down within the prescribed timeframe, not obtaining an actual hearing date within that period. The judgment reinforces the practical reality that litigants cannot control when the Registrar allocates a judge or sets a hearing date. The case is significant for procedural law as it prevents abuse of the bar procedure where a party has substantially complied with the rules by taking all steps within their control to have a matter set down for hearing.