CITY OF HARARE v D & P INVESTMENTS (PVT) LTD & ANOR 1992 (2) ZLR 254 (S)

Flynote

Civil procedure — exception — purpose of — whether pleading and whether notice to bar must be given — error in notice — whether still valid despite error

Headnote

An exception is an answer to the plaintiff's claim or to a defence claimed. Its main purpose is to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked and so settle the dispute in the most economical manner by having the faulty pleading set aside.

Rule E 80 of the Rules of the High Court deals with "any pleading" and lays down the procedure for barring. An exception is a pleading as envisaged by Rule 80 and therefore the time allowed for filing of an exception specified in Rule 119 read with Rule 137(1)(b) of the Rules simply determines the time which must be allowed to expire before a notice of intention to bar must be given. An exception is not automatically barred if this time period has elapsed. Notice of bar must be given. The right to file an exception will only be lost when the bar period has expired. An excipient is allowed 16 days after filing the exception to set it down for hearing, failing which he has to plead over the merits and cannot have the exception heard before the trial. Appellant's notice of set down was timeous and valid despite its incorrect statement that the set-down was by consent. These objections in limine were dismissed with costs and the Registrar was ordered to set down the exception for hearing.