Introduction
On 9 June 2024 I wrote an article titled “Special pleas in legal proceedings” (hereinafter “the article”). In that article I explained what special pleas are and I gave some examples. Special pleas are raised as roadblocks or checkpoints in legal proceedings so that cases are not heard on the merits i.e. the substantive issues.
Definition of special pleas
In the said article I relied heavily on the cases of Van Brooker v Mudhanda 457 and 458 of 2015 (“Van Brooker v Mudhanda”). A special plea was defined as an objection on the basis of certain facts which do not appear in the plaintiff’s declaration or particulars of claim and has the effect of either destroying or postponing the action. I also relied on the case of Tendai Mashamhanda versus Bariadie Investments and Others, HC3955/22, Judgment Number 141-23, which was an opposed application for special pleas.
Examples of special pleas
In the article, I gave examples of special pleas which include locus standi, lack of jurisdiction, prescription, special plea of arbitration, non-joinder and misjoinder, mis-citation, res judicata and lis pendens.
Special plea of lack of jurisdiction
According to the article I explained that there are three types of special pleas, namely pleas in bar, declinatory pleas and dilatory pleas. A special plea in bar is one by which a party may interpose a purely formal objection to the jurisdiction of the court. In a special plea of lack of jurisdiction the opposing party (usually the defendant or respondent) alleges that the suing party (plaintiff or applicant) has instituted legal proceedings in a court of law or tribunal that lacks the jurisdiction or the right to hear the dispute.
Definition of jurisdiction
Jurisdiction has been defined by many Courts and scholars. For example in the case of ZESA Holdings (Private) Limited vs Clovegate Elevator Co (Private) Limited & Anor SC69/23 (at page 11) the Court held that “In our law, jurisdiction denotes the power or competence of a court to hear and determine an issue brought before it…..”
According to Herbstein & Van Winsen: The Civil Practice of the High Court of South Africa, Fifth Edition, Volume 1 at pages 44-45 “jurisdiction can be defined as the power of a particular court or tribunal or forum to hear and determine an issue brought before it”.
In a recent case in which I represented one of the parties, it was held that Black’s Law Dictionary (927 9th ed 2009) makes mention of three types of jurisdiction, namely territorial jurisdiction, personal jurisdiction and subject- matter jurisdiction.
Legal implication if the preliminary point on jurisdiction succeeds or is upheld
Reference has been made many times to the case of Chinhoyi Municipality v Mangwana & Partners & Anor 2016 (2) ZLR 42(H) wherein Chitapi J held that an arbitrator is enjoined to determine an objection relating to jurisdiction before relating to the merits. The Court held that “The preliminary point raised by the applicant on jurisdiction was not just a technical issue. It was a plea whose determination would decide whether the proceedings should continue or be terminated on the part of the second respondent”.
According to the case of Zimasco (Private) Limited v Marikano SC6/14 the Court held that “If a court has no jurisdiction that would be the end of the matter and any determination made thereafter would be null and void”.
Justifying the preliminary point on lack of jurisdiction
There are many arguments legal practitioners may raise to disqualify a court or tribunal on the basis that it lacks jurisdiction to entertain the matter. Some of the allegations or arguments include those summarised below.
- An arbitrator may be disqualified on the basis that a contract or agreement alleged to have been breached has no provision for dispute resolution through arbitration.
- The Magistrate’s Court (Civil) may be disqualified on the basis that the amount in dispute is beyond the monetary jurisdiction of the Court.
- A party may challenge the jurisdiction of a regulatory authority on the grounds that the party is not regulated by that regulator or that the alleged offence is outside those offences that fall under the regulator.
- In certain situations, a party may argue against what is referred to as “lifting or piercing of the corporate veil” where it is alleged that the alleged offence was committed by a juristic person such as a company not a natural person in that company, such as the company’s officers.
- Some contracts provide that they are subject to certain laws, for example the laws of Zimbabwe, South Africa, Mauritius or China, to the exclusion of others. This is normally a big issue in international trade.
Conclusion
If the preliminary point or point in limine on jurisdiction is upheld by a court or tribunal that will be dispositive of the matter. The court or tribunal cannot proceed with the matter.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), ACCA (Business Valuations) MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, commercial arbitrator, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce where he worked as Finance & Administration (Human Resources) Director and Chief Operating Officer for many years and is a former World Bank staffer in the Resource Management Unit. He has wide ranging board experience up to Chairperson, spanning over 20 years. He writes in his personal capacity. He can be contacted on +263 772 246 900 or ghofisi@hofisilaw.com or gohofisi@gmail.com. Visit www//:hofisilaw.com for more articles.
