NEC, CONSTRUCTION INDUSTRY v ZIMBABWE NANTONG INTERNATIONAL (PVT) LTD 2015 (2) ZLR 671 (S)

Flynote

Practice and procedure — pleadings — exception and special plea — distinction between — exceptions must be limited to objections or defences that arise ex facie declaration itself — matters which should be raised by way of special plea — where averment of some new fact is required, objection should be raised by way of special plea — other party may rebut defence raised The appellant had issued summons in the High Court against the respondent, claiming various sums of money, plus interest. After the exchange of pleadings, but before filing its plea, the respondent filed an exception to the claim, the objection being that the High Court lacked jurisdiction to entertain the claim as it was a labour matter. The respondent also averred that part of the claim had prescribed by effluxion of time and that the rate of interest claimed exceeded the prescribed rate of interest.

The High Court found that the claim was premised on a collective bargaining agreement, and thus was a labour matter. The court held that it was an abuse of court process for the appellant to approach the High Court after the jurisdictional issue was raised by the respondent and dismissed the appellant's claim with costs on a legal practitioner and client scale.

On appeal, apart from challenging the entirety of the court's ruling pertaining to its jurisdictional competence, the appellant raised the procedural point that the court erred in entertaining a challenge to its jurisdiction by way of an exception as opposed to a special plea. Argument at the appeal hearing was confined to this procedural point. The respondent argued that the distinction between an exception and a special plea was one of form and not of substance. By virtue of r 106 of the High Court Rules, it was argued, no technical objection may be raised to any pleading on the ground of any alleged want of form. Although an objection to jurisdiction is usually raised by special plea, the failure to do so is not necessarily fatal.

Held, that in South Africa, the traditional approach, based on the cases, has been to differentiate between an exception and a special plea on the basis the latter raises some special defence not apparent ex facie the declaration. However, the trend lately in South Africa is that the courts are inclined to look at the true nature and substance of the matter in question as opposed to its form. The nature of the defence determines whether evidence is required and whether the defence should have been raised at the outset or whether it can be raised on appeal. In this country, the practice has been to employ the procedure of excepting for those objections which go to the root of the declaration and allege that the declaration does not disclose a cause of action at all. The purpose of a special plea is to permit a defendant to achieve prompt resolution of a factual issue which founds a legal argument that disposes of the plaintiff's claim. There are three kinds of special pleas: (a) the plea in bar, by which a party may interpose a purely formal objection to the jurisdiction of the court; (b) the plea in abatement, which avers some good ground, not disclosed in the declaration, which is otherwise admitted, for denying the plaintiff relief; and (c) the "dilatory" plea, which advances some fact, not disclosed in the declaration, which is otherwise admitted, and which entitled the defendant to a stay of proceedings. Since a special plea involves the averment of a new fact, it is susceptible of replication and of a hearing at which evidence on this new fact alone may be led.

Held, further, that r 106, which precludes technical objections on the ground of any alleged want of form, is confined to the application of r 99, which regulates the form and content of pleadings. It does not extend to the application of r 137, which prescribes alternatives to pleading to the merits and the forms to be utilised for any such alternative. There are two reasons: (a) r 137 is set out in an entirely separate Order 21 dealing specifically with special pleas and exceptions; (b) more importantly, although r 137(2) is concerned with the form of special pleas and exceptions, the more crucial aspect of r 137 is subr (1) which is designed to regulate the procedure to be followed in raising exceptions or special pleas and explicitly differentiates between special pleas on the one hand and exceptions on the other.

Held, further, that as a general rule, then, exceptions taken by a defendant must be limited to objections or defences that arise ex facie the declaration itself.

These would include averments that the declaration or part thereof does not disclose a valid cause of action or is vague and embarrassing. On the other hand, where the point taken constitutes a special defence, such as absence of jurisdiction, res judicata or prescription, the procedure to be followed is by way of special plea. In these instances the defence relied upon is not evident ex facie the declaration and involves the averment of some new fact or facts to be proved with fresh matter. The procedure by way of special plea enables the plaintiff to rebut the defence raised by replication and the adduction of further evidence where necessary. In exceptional cases, however, where the special defence in question is apparent ex facie the declaration itself, the court may allow the matter to be decided on exception. This is subject to the qualification that the plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a decision being taken on exception.

Held, further, that in this matter, although the issue of the court's jurisdiction should normally have been raised in a special plea, the previous pleadings had fully ventilated the question. There was nothing further that either party might have adduced, whether by way of further pleadings or through fresh evidence, to enable the court to determine the propriety or otherwise of its jurisdiction over the matter. Nor was the appellant prejudiced in any fashion by the matter having been allowed to proceed on exception rather than by way of special plea. Consequently, it could not be said that the court a quo erred in entertaining a challenge to its jurisdiction raised through an exception.