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 including that they are raised as roadblocks or checkpoints in legal proceedings so that cases are not heard on the merits i.e. the substantive issues. On 26 February 2026 I wrote an article titled “Jurisdiction in legal proceedings” wherein I explained the special plea of jurisdiction which can be dispositive of a matter if the special plea is upheld by the Court.
Special pleas
In my above mentioned articles, I relied heavily on two decided cases being Van Brooker v Mudhanda 457 and 458 of 2015 (“Van Brooker v Mudhanda”) and Tendai Mashamhanda versus Bariadie Investments and Others, HC3955/22, Judgment Number 141-23.In the Van Brooker v Mudhanda case 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.
Examples of special pleas
Some of the special pleas 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 mis – citation
In simple terms mis – citation involves citing a wrong party, usually a non-existent one. This is a common error in litigation where a party that is being sued is wrongly described in its name. I will share with you some of the cases decided by Courts.
Marange Resources (Private) Limited versus Core Mining and Minerals (Private) Limited & 3 Others, SC 37/16.
In that case the issue of mis-citation was addressed as follows:
“The need for the proper citation of parties is highlighted in, Cilliers, A.C. et al in Herbstein & van Winsen’s The Civil Practice of the High Courts of South Africa, 5th ed, vol.1 page 143 as follows:
“Before one cites a party in a summons or in application proceedings, it is important to consider whether the party has locus standi to sue or be sued (legitima persona standi in judicio) and to ascertain what the correct citation of the party is.” (emphasis added)”
In the same matter it was clearly stated as follows:
“Thus, the fate of an application where a wrong party is cited is clear. The proceedings cannot be sustained. In casu, the wrong citation was compounded by the appellant’s stubborn refusal to rectify the error even when assured by the other side that such an application would not be opposed. This application should therefore suffer not only the general fate consequent upon such errors …”
Smoke End Motors (Private) Limited versus Treat and Company
In that case the Defendant was cited as Treat and Company instead of its correct name being Treat and Company (Private) Limited. The learned judge in his ruling stated as follows;
“This reasoning was followed in a number of decisions including those referred to by Mr. Nyahuma. In Tinashe M. Zenda v Emirates Airlines & 2 Ors (supra), MATANDA-MOYO J held as follows at page 2; –
“The law with regards to proper citation of persons is trite. Where a misdescription involves the citation of a non-existent persona, such pleadings are a nullity ab initio. Such person lacks legal personality and cannot therefore sue or be sued….”
JDM Agro- Consult & Marketing (Pvt) Ltd versus the Editor of the Herald Newspaper & Anor HH61-2007
The Court decided that:
“It is pertinent to state from the outset that the application to amend the summons by altering the name of the second defendant which was granted at the pre-trial conference was without effect. The party named as the second defendant did not exist at the time that the summons was issued and served. The correct appellation for the publisher and owner of the newspaper is Zimbabwe Newspapers (1980) Limited. This is the registered company duly incorporated under the laws of this country. Its coming into being is due to the process by which it is incorporated as such. It is then, after its incorporation, that it becomes a juristic person, capable of suing and being sued in its own right. Without that process it is non existent. The entity sued by the plantiff as the second defendant is The Herald Newspaper. It is not a registered company and does not exist in any form. Consequently, the plaintiff issued summons against a non existent being….”
Conclusion
The special plea of mis-citation can be dispositive of a matter if upheld by the Court.
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.
