Zimbabwe Manpower Development Fund and Minister of Higher and Tertiary Education Science & Technology Development v Walter Nyabadza Law Chambers and Walter Nyabadza

The plaintiffs instituted proceedings claiming arrear rentals against the defendants. The defendants filed a special plea alleging that the lease agreement was null and void, that the first plaintiff had no locus standi, and that the matter was res judicata. The defendants set down the special plea for hearing without first seeking the plaintiff's consent as required by the rules. The plaintiff raised a point in limine objecting to the procedural irregularity in setting down the special plea, arguing that the defendants had not complied with Order 2 Rule 138 of the High Court Rules.

• Whether the special plea was properly set down for hearing in accordance with Order 2 Rule 138 of the High Court Rules
• Whether Rule 138 is peremptory or directory
• Whether failure to seek consent before setting down a special plea is a fatal procedural defect
• Whether punitive costs are warranted where a legal practitioner breaches procedural rules

The special plea was struck off the roll with costs at a higher scale against the defendants.

Order 2 Rule 138 of the High Court Rules is peremptory and sets out a mandatory sequential procedure for setting down special pleas, exceptions or applications to strike out. A party filing a special plea must first seek consent to set it down within ten days; failing consent, the party may set it down within a further four days; failing both steps, the special plea cannot be set down before trial. "Failing consent" in Rule 138(b) does not mean a party can proceed without first attempting to obtain consent under Rule 138(a). Non-compliance with this sequential procedure renders the setting down of the special plea irregular and liable to be struck off the roll.

The court observed that the purpose of Rule 138's sequential procedure is to ensure that interlocutory matters are set down without undue delay, failing which they should give way to the setting down of the main matter. The court also noted that where a legal practitioner, who should know better, forges ahead with a procedurally defective application after a point has been raised, this amounts to a flagrant breach of the rules that puts the opposing party unnecessarily out of pocket, warranting an order for punitive costs.

This case reinforces the importance of strict compliance with procedural rules in Zimbabwean civil procedure, particularly regarding the setting down of interlocutory applications such as special pleas. It establishes that Order 2 Rule 138 is peremptory and must be followed sequentially, and that legal practitioners who flagrantly breach procedural rules may be liable for punitive costs. The decision promotes procedural efficiency by ensuring that interlocutory matters are dealt with expeditiously or allowed to proceed to trial without unnecessary delay.