Introduction
I have previously written articles on what special pleas in legal proceedings are. Further, I have written articles on special pleas of jurisdiction and mis-citation. I have previously explained that 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.
Special pleas
In my previous 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.
Filing of special pleas and heads of argument
According to Rule 42(8) of the High Court Rules, 2021, a party filing an exception, special plea or an application to strike out shall, at the time of filing it, file heads of argument in support of the exception, special plea or application to strike out. I have seen attempts to file a special plea first and then the heads of arguments later.
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 waiver of right
A waiver was defined by Guibbay JA (as he then was) in the case of Agriculture Finance Corporation v Pocock 1986 (2) ZLR 229 (S) at 236F as “an abandonment or surrender with the necessary knowledge of a right accruing exclusively for the benefit of the appellant”.
The use of waivers in contracts particularly a Deed of Settlement is common. This serves to restrict future claims by the party waiving the right or to shield the beneficiary of the waiver from future claims by the party waiving the right. Examples of common waivers include the following:
- This payment is in full and final settlement of any and all amounts owed by the Defendant to the Plaintiff and the Plaintiff shall not make any further claims.
- No party shall take legal action against other after signing of this Agreement and payment of all amounts included herein.
- The employee accepts this amount in full and final settlement of any and all obligations arising from his employment contract with the employer and each party waives its rights to make claims or take future legal action against the other.
Implications of waiver of right
There are several decided cases on the special plea of waiver of right. For example, in the case of Nyemba N.O. v Chakabva N.O. & 5 Ors HH224/2018, the late Tagu J clearly stated that a person who waives a right cannot seek to assert them. He cited Dumbutshena CJ in the case of Barclays Bank of Zimbabwe Ltd v Binga Products (Pvt) Ltd 1985(3) SA 1041(ZS) at 1049 B-E who made reference to the decision by Lord Denning. It was held that “The principle of waiver is simply this, if one party, by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted on, intending that the other should act on that belief, and he does act on it. Then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him to do so…….. Nevertheless, the one who waives his strict rights cannot afterwards insist on them. His strict rights are at any rate suspended so long as the waiver lasts….”
No approbation and reprobation
It is settled at law based on decided cases that a party is not allowed to approbate and reprobate in legal proceedings. In other words, our law does not allow a party to have his or her cake and eat at the same time. The basis of this doctrine is the principle that no person can be allowed to take up two positions which are inconsistent with one another, or to blow both hot and cold. A party must select the option which best protects his interests and pursue it.
Conclusion
The special plea of waiver restricts the party who waived a right from asserting that right in future. The special plea can be raised in legal proceedings and can be dispositive of 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.
