Zimbabwe Rural District Council Workers Trade Union v Mhondoro Ngezi Rural District Council and Washington Ruziwa N.O.

The plaintiff, a trade union established under the Labour Act, represented employees of the first defendant, a rural district council. The plaintiff claimed that it was owed union dues by the first defendant totaling US$29,776.07 and RTGS$10,010.44. The parties allegedly entered into a settlement agreement on 30 May 2019 during conciliation proceedings before the second defendant (a designated agent in the Employment Council for Rural District Councils), whereby the first defendant would pay the full amount within 8 months. The first defendant only paid US$3,966.39, leaving the balance unpaid. The plaintiff also challenged a draft ruling issued by the second defendant on 14 October 2019, claiming it was irregular as it was not based on a certificate of no settlement as required by law. The first defendant filed a combined special plea and exception, arguing that the High Court lacked jurisdiction as the matter should be dealt with by the Labour Court, that the matter was res judicata, and that the summons and declaration were vague and embarrassing.

• Whether the High Court has jurisdiction to hear a matter involving a draft ruling issued under the Labour Act that is pending confirmation before the Labour Court
• Whether the special plea of lack of jurisdiction was properly raised without first pleading to the merits
• Whether evidence can properly be attached to a special plea or whether oral evidence must be heard
• Whether the requirements for a special plea of res judicata were satisfied
• Whether the summons and declaration disclosed a cognisable cause of action
• Whether the summons and declaration were so vague and embarrassing as to warrant their dismissal

1. The plaintiff's preliminary objection (pertaining to the attachment of evidence to the first defendant's special plea) is hereby upheld. 2. The Registrar is directed to set the matter down on the next available date for hearing of oral evidence on the special pleas. 3. Costs shall be in the cause.

Where a special plea of absence of jurisdiction raises material disputes of fact that are not apparent ex facie the pleadings, the court must hear oral evidence before determining the special plea. A court cannot determine such a special plea based solely on documentary evidence attached to the plea, as this would be akin to deciding a matter through application procedure in the face of material disputes of fact. A special plea, despite being termed 'special', remains a plea which is a defence that can only be determined after hearing evidence unless the facts surrounding the plea are common cause or admitted. Fresh facts introduced by way of a special plea must be proved through oral testimony at a proper hearing where facts are disputed.

The court observed that the first defendant's special plea "does not appear like a plea at all. It looks more like an affidavit. It bears all the hallmarks of an affidavit. It is long, rumbling and rather convoluted." The court also noted that the dictum in Cargill Zimbabwe v Culveham Trading regarding the need to plead to the merits before raising a special plea was specific to special pleas to stay proceedings and refer matters to arbitration, and does not propose a "one size fits all approach" for all types of special pleas. The court further indicated that the determination of the exception would have to be stayed pending resolution of the question of jurisdiction.

This case provides important guidance on Zimbabwean civil procedure, particularly regarding special pleas. It clarifies that: (1) a special plea can be raised as an alternative to pleading to the merits under Rules 137-139; (2) where a special plea of absence of jurisdiction involves disputes of fact not apparent ex facie the pleadings, oral evidence must be heard rather than relying on documentary annexures; (3) courts cannot decide special pleas through an application-type procedure when material disputes of fact exist; and (4) the nature of a special plea remains that of a defence requiring evidence where facts are disputed. The judgment emphasizes procedural fairness and the need for proper evidence-taking in contested special pleas.