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HC 308/20
BLOOMING LILLY INVESTMENTS (PRIVATE) LIMITED

and
REYTALON LIMITED
versus
ONTAGE RESOURCES (PRIVATE) LIMITED
and
TAPIWA ZEBRON GURUPIRA
and
TAWANDA ELIAS GURUPIRA
and
THE REGISTRAR OF COMPANIES (N.O)
HIGH COURT OF ZIMBABWE

MANGOTA J
HARARE, 28 October, 2020 and 30 December 2020 and 4 January 2021
Opposed Matter
Ms C Damiso, for the plaintiffs

T Mpofu with T. Mapuraga, for the 1st 2nd & 3rd defendants
MANGOTA J: An exception and a special plea fall under the genus “Alternatives to
pleading to the merits; forms”. Whilst the stated matter is the case, the two are not the same.
They are markedly different from each other.
Herbestein & Van Winsen articulate the difference which exists between a special plea
and an exception. They do so in The Civil Practice of the Supreme Courts of South Africa, 5th
ed Volume 1 pp 599-600. They state that:
“The essential difference between a special plea and an exception is that in the case of the latter,
the excipient is confined to the four corners of the pleading. The defence raised on exception
must appear from the declaration itself; the excipient must accept as correct the allegations
contained in it and he may not introduce any fresh matter. Special pleas, on the other hand, do
not appear ex facie the pleading. If they did, then the exception procedure would have to be
followed. Special pleas have to be established by the introduction of fresh facts from outside
the circumference of the pleading, and those facts have to be established by evidence in the
usual way …..
Thus, as a general rule, the exception procedure is appropriate when the defect appears ex facie
the pleading whereas a special plea is appropriate when it is necessary to place facts before the
court to show that there is a defect ….” (emphasis added).
The distinction between the two concepts-special plea and exception –places this matter
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into context: The plaintiff sued the defendant which it alleged to have illegally obtained certain
benefits or advantages from it in violation of provisions of the Companies Act [Chapter 24:03].
It moved for an order which declares as null and void the benefits or advantages which the
defendant allegedly obtained from it.
The defendant entered appearance to defend and raised four special pleas. These centred
on locus standi, lack of authority to sue, prescription and absence of cause of action. They
constitute the subject matter of these proceedings.
The defendant filed Heads and so did the plaintiff which did not file any replication to
the special pleas of the defendant.
On the day of hearing of the special pleas, Mr Mpofu who appeared for the defendant
travelled a very easy road. He moved for the dismissal of the plaintiff’s claim on the basis that
its non-replication of the special pleas which had been raised constituted an admission by it
that the special pleas were well-taken. He placed reliance on such case authorities as Fawcett
Security Operations v Director of Customs & Excise, 1995 (2) ZLR 12.(SC), DD Transport v
Abbot 1988 (2) ZLR 92 both of which state the simple rule of law which is to the effect that
what is not denied in affidavits must be taken to be admitted.
Ms Damiso who appeared for the plaintiff had a very bumpy road to travel during
submissions. She, as a learned and capable legal practitioner who she is, had no choice but to
concede that the plaintiff’s case died the moment it failed to file a replication to the special
pleas of the defendant. Her concession was well made.
The plaintiff, in my view, suffered from a genuine but mistaken confusion of the above
mentioned concepts namely, special plea and exception. If it applied its mind to the
characteristics of a special plea which, as is known, is established by introduction of fresh facts
which are outside the circumference of the pleadings, it would have known, as it should, that
it had to rebut such fresh facts by way of a replication. Its mistaken view of treating a special
plea as an exception accounts for the pitifal which it created for itself.
Authorities are agreed on the point that a replication is a sine qua non aspect of a special
plea. GOWORA JA, for instance, discusses the point at hand in Jennifer Nan Brooker & Anor v
Mudhanda & Anor SC 5/18 wherein she dealt with the special plea of prescription and said:
“After being served with the special plea of prescription, the respondent should have replicated.
The purpose of a replication is to inform the court and the defendant of the plaintiff’s rebuttal
to the special plea. The failure by the respondent to file a replication to the special plea means
that there are no disputes for determination on the special plea. In the absence of such
replication, there would be no issue for determination by the court a quo.”
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Most of the matters which the plaintiff included in its Heads are, it is apparent, not
points of law. They are averments which should have been in its replication. SANDURA JA dealt
with a matter which was akin to what the plaintiff did in casu. He advisedly discouraged the
stated practice of including the litigant’s averments in his heads. He did so in Nedbank
Investment (Pvt) Ltd & Anor v Global Electrical Manufacturers (Pvt) Ltd and Anor, SC 43/09
wherein he remarked that:
“If Global wished to rely upon the alleged interruption of the running of prescription, it should
have filed its replication to the special plea. In the absence of a replication, the issues between
the parties were to be found in the pleadings as they stood. Those issues did not include the
issue of whether the running of prescription had been interrupted” (emphasis added)
It is only in its replication that the plaintiff’s case becomes known to the court and the
defendant. Where it has not replicated, as is the case in this matter, the issues which the
defendant will have raised in its special plea remain unchallenged. The trite law which was
enunciated in Fawcett Security as well as in DD Transport (supra) remains applicable under
the stated set of circumstances. The long and short of that matter is that there will be no triable
issues to talk of.
The plaintiff’s replication to the defendant’s special plea cannot be found in the
plaintiff’s heads as the plaintiff attempted to do in casu. Heads of argument are points of law
which a legal practitioner prepares and files for, and on behalf of, the litigant whom he
represents. They are not averments of the litigant. They are simply the law which is applied to
a given set of facts by the legal practitioner. There is, therefore, a marked difference which
exists between a litigant’s averments which are contained in his pleadings and the heads which
the litigant’s legal practitioner draws from the litigant’s pleadings.
A legal practitioner, it is a fact, cannot act as both a litigant and the legal practitioner
whom the litigant engages to represent him. Legal practitioners must, therefore, disabuse
themselves of the unwholesome tendency of wanting to play the role of the litigant whom they
represent together with their own role which they play when they represent the litigant. Each
person must play the role which the rules of court as well as the law of practice and procedure
ascribes to him. The difference of the two roles should not be allowed to be blurred. It is real
and it must, at all times, be regarded as such.
The defendant, it is my view, proved its case on a balance of probabilities. The special
pleas which it raised are upheld. The plaintiff’s claim is dismissed with costs.
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Rubaya-Chinuwo Law Chambers, plaintiffs’ legal practitioners

Mangwiro Tandi Law, 1st, 2nd, 3rd defendants’ legal practitioners

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BLOOMING LILLY INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

Ms C Damiso, for the plaintiffs

Rubaya-Chinuwo Law Chambers, plaintiffs’ legal practitioners

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