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

The plaintiff instituted proceedings claiming arrear rentals based on a lease agreement. The defendants filed a special plea alleging that: (1) the lease agreement was null and void, (2) the first plaintiff lacked locus standi, and (3) the matter was res judicata. The plaintiff raised a point in limine challenging the procedure used to set down the special plea for hearing. The plaintiff contended that the defendants failed to comply with Order 2 Rule 138 which requires: (a) parties to consent within ten days to setting down, (b) failing consent, either party may set down within a further four days, and (c) failing both, the special plea cannot be heard before trial. The defendants did not seek consent as required by Rule 138(a) before attempting to set down the matter under Rule 138(b). The first defendant, who was a qualified legal practitioner representing himself, argued that he believed Rule 138(b) was applicable as it meant that failing consent under Rule 138(a), he could proceed under Rule 138(b).

• Whether the special plea was properly set down for hearing in compliance with Order 2 Rule 138 of the High Court Rules
• Whether failure to seek consent under Rule 138(a) allows a party to proceed directly to set down under Rule 138(b)
• Whether Rule 138 is peremptory or directory in nature
• Whether punitive costs are warranted for flagrant breach of court rules

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

Order 2 Rule 138 is peremptory and prescribes a sequential procedure that must be strictly followed when setting down special pleas, exceptions, or applications to strike out. A party filing such interlocutory matters must first seek consent to set down within ten days under Rule 138(a). Only upon failing to obtain such consent (after actually seeking it) may a party then proceed to set the matter down unilaterally within a further four days under Rule 138(b). Failure to comply with both Rule 138(a) and (b) means the special plea cannot be set down for hearing before trial under Rule 138(c). Simply failing to obtain consent without actually seeking it does not entitle a party to invoke Rule 138(b). Non-compliance with this sequential procedure renders the set down improper and the matter liable to be struck off the roll.

The court observed that Rule 138's sequential requirements serve the important purpose of ensuring that interlocutory matters are dealt with expeditiously without undue delay, failing which they should give way to the setting down of the main matter. The court also commented that qualified legal practitioners have a duty to research procedural points once raised, and failure to do so when continuing to pursue an improper procedure amounts to a flagrant breach warranting punitive costs. The court noted that proceeding with a procedural hurdle puts the opposing party unnecessarily out of pocket, justifying an order for costs at a higher scale.

This case clarifies the proper interpretation and application of Order 2 Rule 138 of the Zimbabwe High Court Rules regarding the procedure for setting down special pleas, exceptions, and applications to strike out. It establishes that Rule 138 is peremptory and must be followed sequentially. The case emphasizes that parties cannot bypass the requirement to seek consent under Rule 138(a) before proceeding to set down under Rule 138(b). It reinforces the importance of strict compliance with procedural rules and demonstrates that legal practitioners who flagrantly breach court rules may face punitive costs orders. The judgment serves as a precedent for the proper handling of interlocutory applications and the consequences of non-compliance with procedural requirements.