Rasmos Pasipanodya v Zimbabwe Platinum Mine (Pvt) Ltd

### Preamble
1
HH 144-22
HC 6609/20
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RASMOS PASIPANODYA

versus

ZIMBABWE PLATINUM MINE (PVT) LTD

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 17 January, & 9 March, 2022

T Biti, for the applicant

A.K.Maguchu, for the respondent

Opposed Matter

MANGOTA J: what defendant and the plaintiff (“the parties”) placed before me is what I may refer to as an exception –within-an exception. Its genesis is that, the plaintiff sued the defendant under the law of delict. He claimed certain sums of money from the plaintiff, his former employer, in the form of the damages. He grounded his suit under the Acquilian action,

The plaintiff served his summons and declaration upon the defendant on 17 November 2020. The defendant entered appearance to defend on 26 November, 2020 after which it, on 11 December 2020, wrote a letter of complaint to the plaintiff. It does not explain why the letter which it addressed to the plaintiff in December, 2020 found its way to its addressee only on 2 March, 2021. It filed its exception to the plaintiff’s summons and declaration three days later-ie.on 5 March, 2021.

The registrar of this court allocated the defendant’s exception to me for hearing. I set it down for 12 noon of 17 January, 2022. During the hearing, counsel for the plaintiff took a point in limine. The point was that the exception was improperly filed, was invalid and should, therefore, be dismissed with costs which are at attorney and client scale. He placed reliance on Rules 119 and 138 of the High Court Rules, 1971.

I mention, in passing and for completeness of the record of proceedings, that the High Court Rules 1971, which are now repealed and replaced by the High Court Rules 2021, were in operation when the plaintiff filed his suit. Counsel for him was, therefore, within his client’s rights when he cited the above-mentioned rules of court as the basis for impugning the exception.

Rule 119 of the High Court Rules 1971 which constitutes the plaintiff’s first line of argument is relevant. It makes it mandatory for the defendant to file his plea, exception or special plea within ten days of service upon him of the plaintiff’s declaration. The proviso to the rule is that, where the plaintiff has served upon the defendant the declaration together with the summons, the latter shall file his plea, exception or special plea within twenty days of service upon him of the plaintiff’s summons and declaration.

It is common cause that the plaintiff’s founding papers were served upon the defendant in terms of the proviso to Rule 119. They were served upon it on 17 November, 2020. The sheriff’s return of service which appears at p8 of the record bears testimony of the stated matter.

The defendant, in terms of the proviso to the rule, should have filed its exception to the plaintiff’s summons and declaration on or before 15 December, 2020. It, for some unexplained reason, filed the exception on 5 March 2021.

The filing of the exception eighty days after the event constitutes the plaintiff’s cause of action. He insists that the defendant violated Rule 119 of the repealed rules of court. The rule, it has already been observed, makes it mandatory for the defendant to file his plea or other answer to the claim of the plaintiff within either ten, or twenty, days of his receipt of the plaintiff’s founding papers. He places reliance on such case authorities as Sammy’s Group (Pvt) Ltd v John Butcher Meyburgh No & Ors Sc 45/15; Aaaron Vico v Amanda Berkowitz & Anor, HC 10280/19 and Zimbabwe National Water Authority v RM Webb, HC 787/16

Mr Muguchu, for the defendant, did not dispute the correctness of the authorities which the plaintiff cited. He, however, sought to go beyond those authorities. His view, he asserted, was to show that the exception was filed regularly. He submitted that, on 2 March 2021 the plaintiff filed a notice to plead and intention to bar in terms of which he invited the defendant to file   its plea or other answer to his claim. He insisted that the exception which the defendant filed on 5 March 2021 constituted the latter’s other answer. He, in the mentioned regard, placed reliance on Harare City Council v D&P Investments (Pvt) Ltd & Anor, 1992 (2) ZLR 254 at 257 B-C wherein it was remarked that:

“An exception is plainly an ‘answer to the plaintiff’s claim’ or, to the defence raised”

A number of points arise out of the position which the defendant has taken. The first is that, according to counsel for him, the plaintiff filed and served upon the defendant a notice to plead and intention to bar. It is this allegedly filed notice which, the defendant insists, places the exception which it filed on 5 March 2021 within the time-frame which is stipulated in the notice making the exception to be validly filed as well as taken.

The record which the parties placed before me does not, it is observed, have any notice to plead and/or intention to bar which Mr Maguchu speaks about. I was, therefore, left to wonder as to what counsel was making reference to when he made the submission in respect of the allegedly filed notice to plead. The same was or is not part of the record. The letter of complaint which the defendant served upon the plaintiff on 2 March, 2021 is the only document which bears the date which Mr Maguchu made mention of. He, however, cannot assert that the letter of complaint which he served upon the plaintiff on 2 March, 2021 translates into the notice to plead and intention to bar.

The dictum of the court as stated in paragraph D page 257 of Harare City Council v D&P Investments (supra) requires consideration as well as comment. The paragraph creates the impression that Rule 119 is open-ended in terms of time. It creates the picture that the rule has no time-limit within which the defendant shall file his plea or other answer to the plaintiff’s claim unless the plaintiff has served upon him the notice to plead in terms of which the defendant is enjoined to act within the period which is specified in the notice failing which he remains barred. The dictum reads as follows:

“Viewed in the context of Rule 80, Rule 119 simply determines the time which must be allowed to expire before a notice of intention to bar may be given. It is not peremptory in the sense that non-compliance deprives a party of the right to file an exception.  He loses that right when the bar period has expired”

It is pertinent to observe and mention, at this stage, that, if the construction which the court was pleased to place on Rule 119 in the Harare City Council v D&P Investments case was/is correct, one is left to wonder why the legislature stipulated the time-frame within which the defendant who receives the plaintiff’s summons and declaration is called upon to file his plea or other answer to the same within the time which is stipulated in the rule. The legislature, it is my view, would not stipulate the time-frame within which the defendant shall act for no specific purpose. The time which is mentioned in the rules serves a specific purpose. This is a fortori given the peremptory character of the rule which is under consideration. If the time which is mentioned in the rule serves no purpose, as the case seems to suggest, other than its employment in circumstances where the plaintiff contemplates issuing the notice to plead, the following questions would arise from the suggested matter:

why did the legislature impose the time-frame within which the defendant who receives the plaintiff’s summons alone or, as in casu, the summons and declaration should act within ten or twenty days- and

why did the legislature make it mandatory for the defendant to act within the time-frame which is stipulated in Rule 119 where summons and declaration have been served upon him.

It is, in my view, in acknowledgement of the unpalatable situation which Harare City Council v D.&P Investments created that the Supreme Court, which has the capacity to regulate its own process, took a view which was contrary to that case in Sammy’s Group )Pvt) Ltd v John Butcher Meyburgh NO & Ors, SC 45/15. It is in mentioned case more than in any other that the Supreme Court reconciled its reasoning with the peremptory character of Rule 119. It is in the same that the court stated, in clear and unambiguous terms, that filing of the exception or other answer by the defendant outside the dies which is stipulated in the rules renders the filed exception invalid. The reasoning of the court in the case accords with sound logic. It maintains the harmony which exists between the rule and relevant dicta of the court. The Supreme Court was, therefore, well within its rights when it commented on the rule in the case in the following words:

“It is true  ...that there is no sanction for the late filing of an exception or a special plea. However, the provision in the Rules is mandatory and the documents filed in contravention thereof cannot, in the absence of condonation of the non-compliance with the Rules, have any legal validity… the sanction must…be that the pleading is invalid by virtue of non-compliance with the Rules. First respondent’s exception was filed 15 days out of time. Second respondent’s special plea and exception were filed six and half months out of time. Both applications were in violation of the Rules without explanation, without condonation, sought or granted. There was, therefore, no legal basis on which they were entertained by the court a quo”.

The defendant, it is evident, fell foul of Rule 119. It issued its exception eighty, and not twenty, days of its receipt of the plaintiff’s summons and declaration. It issued it two month outside the dies. It did so without any explanation or any condonation having been sought and /or granted to it. The exception stands on no leg. It cannot, therefore, stand. It is devoid of merit.

The plaintiff rested his second line of argument on Rule 138 of the High Court Rules, 1971. The rule relates to the filing of special plea, exception and/or application to strike out. It stipulates time-frames within which parties who are seized with the mentioned matters must act. The guiding principle of the rule is the date on which the special plea, exception or application is filed

In the matter which the parties placed before me, for instance, the defendant filed the exception on 5 March, 2021. According to the time-lines which are stipulated in the rule, therefore, the following matters obtain:

the defendant and the plaintiff should have, by consent, set the exception down on or before 19 March, 2021-failing which

the defendant or the plaintiff should have set the exception down on or before 25 March, 2021-failingwhich

the defendant should have pleaded over to the merits on or before 31 March, 2021.

The defendant, as can be gleaned from the papers, set its exception down within the dies. It filed its Heads as well as its notice of set down on 25 March, 2021. Reference is made in the mentioned regard to pages 17 and 57 respectively.

It follows from the above-observed matter that the plaintiff’s second argument cannot hold. It cannot do so in circumstances where the defendant acted in compliance with R 138. Its conduct cannot be impugned. It is above board.

Mr Maguchu, for the defendant, conceded, properly in my view, that Sammy’s Group (Pvt) Ltd v John Butcher Meyburgh (supra) spells the correct position of the law which relates to Rule 119. I am persuaded to an equal effect. That the dictum which the Supreme Court pronounced in the case reflects the correct law in regard to the meaning and import of Rule 119 requires little, if any, debate. The dictum remains in sync with the mandatory character of the rule.

The plaintiff, I am satisfied, proved his case on a balance of probabilities. The exception is therefore, dismissed with costs.

Tendai Biti, law plaintiff’s legal practitioners

Maguchu & Muchada, defendant’s legal practitioners