Zimbabwe Mining Development Corporation and Marange Resources (Private) Limited v Grandwell Holdings (Private) Limited and Others

The parties were involved in protracted litigation since 2016 arising from a collapsed joint venture to exploit diamond fields in Chiadzwa, Manicaland Province. Grandwell Holdings (first respondent) issued summons on 17 November 2020 claiming USD 378,536,300 from the applicants for breach of contract. The applicants were required to file a special plea by 15 December 2020 but only filed it on 22 March 2021, after requesting and receiving further particulars. First respondent pointed out in its replication filed 12 April 2021 that the special plea was filed out of time. Applicants' legal practitioner maintained the special plea was filed timeously until 26 May 2022 (eve of pre-trial conference) when he came across Sammy's Group v Meyburgh SC 45/15 which changed his view. The application for condonation was only filed on 9 June 2022, after two pre-trial conferences where prescription was excluded from the list of issues for trial. The delay in filing the special plea was over 3 months, and the delay in seeking condonation was approximately 17 months from when the defect was first pointed out.

• Whether a special plea filed out of time is a nullity or a condonable irregularity
• Whether condonation can cure an improperly filed special plea
• Whether the applicants demonstrated good and sufficient cause for condonation
• The standard to be applied in evaluating legal practitioners' conduct resulting in non-compliance with court rules
• The interpretation and application of section 20(2) of the Prescription Act regarding raising prescription at any stage of proceedings
• Whether a reasonable explanation was provided for the delay in filing the special plea and the application for condonation

1. Application for condonation of late filing of special plea is dismissed. 2. Applicants to pay first respondent's costs of suit on an ordinary scale.

A special plea filed outside the time prescribed by Rule 119 of the High Court Rules is not a nullity but an invalid pleading that constitutes a condonable irregularity. The invalidity arises from non-compliance with procedural rules rather than fatal substantive defects. An application for condonation of late filing requires the applicant to demonstrate good and sufficient cause by satisfying cumulative requirements including: the extent of delay, reasonableness of explanation, prospects of success, prejudice to other parties, finality in litigation, importance of the case, and convenience to the court. A legal practitioner's error in understanding simple procedural requirements regarding time limits does not constitute a reasonable explanation for delay, particularly in matters of significant commercial importance where the practitioner has the duty to ascertain applicable deadlines. Condonation will not be granted merely for the asking, and applicants bear the onus of demonstrating they deserve the court's clemency.

The court expressed reservations about legal practitioners deposing to affidavits rather than the parties themselves, noting that "lawyers belong to the bar and not the stand" and that such affidavits often carry traces of hybrid witness statements and heads of argument. The court suggested that given the complexity of determining when prescription commenced and the existence of 12 previous suits between the parties, the provisions of section 19 of the Prescription Act regarding judicial interruption of prescription may have defeated the special plea in any event. The court observed that in the interests of justice, considering the protracted litigation since 2016 involving 12 Superior Court judgments, there was a need to quell the disputes with requisite speed and bring finality to the matter. The court noted that section 20(2) of the Prescription Act allowing prescription to be raised at any stage must be read consistently with Allied Bank Limited v Dengu SC 52-16, which requires that points of law be raised in a formal manner with proper notice to the other party.

This case clarifies the distinction between a nullity and a condonable irregularity in relation to special pleas filed out of time in Zimbabwean civil procedure. It affirms that late filing of special pleas constitutes an irregularity that may be condoned rather than an absolute nullity, following the approach in Munyorovi v Sakonda. The judgment emphasizes that condonation is not automatic and requires applicants to demonstrate good cause by satisfying cumulative requirements including reasonable explanation for delay, prospects of success, prejudice, and interests of justice. The case illustrates the high standard expected of legal practitioners in complying with procedural time limits, particularly in significant commercial matters, and that errors of legal judgment regarding simple procedural matters will not readily excuse non-compliance. It also addresses the proper interpretation of section 20(2) of the Prescription Act, clarifying that while prescription may be raised at any stage, it must still be raised in a procedurally proper manner.