Tendai Albert Mutukwa and Wilfred Marekwa and Delta Corporation Ltd v Brian Ellse

The applicants received summons in the main matter and entered appearance to defend on 14 October 2016. They requested further particulars and further and better particulars. After being served with a notice to plead, they only filed an exception on 24 February 2017. The applicants sought condonation for late filing and setting down of their exception and leave to set down the exception within 10 days. The respondent, a self-actor, opposed the application but was not in attendance despite service of the notice of set down. The matter was ready for argument in early October 2017, but applicants had it removed from the roll on 5 October 2017, and it only returned to court on 18 October 2018, over a year later.

• Whether condonation should be granted for late filing and setting down of an exception
• Whether the applicants should be granted leave to set down their exception for argument or be required to plead over to the merits
• Whether the court should exercise its discretion under Rule 4C of the High Court Rules, 1971 to condone non-compliance with the rules
• The application and interpretation of Rule 138 of the High Court Rules, 1971 regarding the procedure for filing and setting down exceptions

1. The late filing of applicants' exception is condoned. 2. The applicant shall plead over to the merits within 10 days of the granting of the order. 3. The exception shall be heard and determined at trial. 4. Costs to be in the cause.

When exercising discretion to grant condonation for non-compliance with procedural rules, particularly Rule 138 governing exceptions, courts must consider: (1) the adequacy of the explanation for the delay; (2) the degree of non-compliance and dilatory conduct by the applicant; (3) the prejudice to the opposing party, including their right to have matters determined within a reasonable period; and (4) whether the relief sought can be achieved through alternative means that would not further delay proceedings. Where an exception is filed out of time and the prescribed procedures in Rule 138 are not followed, the court may exercise its discretion to condone the late filing while still requiring the excepting party to plead over to the merits and have the exception determined at trial, thereby balancing the interests of both parties and avoiding further delays.

The court observed that Rule 139(2) provides that a party who pleads over to the merits may be allowed the costs of such plea even where the case has been disposed of without going into the merits. This means that an applicant would not be prejudiced if they successfully argue an exception at trial and the exception is upheld, as they can still recover their costs. The court also noted that the reasons why the procedural rules in Rule 138 are structured as they are is to ensure speedy determination of exceptions, and that failure to comply with the timeline results in the exception being heard at trial rather than as a separate interlocutory application. The court commented that seeking further and better particulars is a legitimate right, but the failure to take action after receiving them until served with a notice to plead demonstrated indolence and lack of diligence.

This case reinforces the importance of strict compliance with procedural rules in Zimbabwe civil litigation, particularly Rule 138 of the High Court Rules, 1971 regarding the timing and procedure for filing and setting down exceptions. It demonstrates that courts will not readily grant condonation for non-compliance where there are unexplained delays and dilatory conduct by litigants, and that the court's discretion to condone must be exercised judiciously, balancing the interests of justice with the opposing party's right to have their matter determined within a reasonable time. The judgment clarifies that exceptions filed out of time may still be heard at trial stage without prejudicing the excepting party's rights to costs if successful, per Rule 139(2).