Introduction
Special pleas are raised as roadblocks in legal proceedings so that cases are not heard or decided on the merits. In this article I give some insights into the special pleas.
Definition of special pleas
In the cases of Van Brooker v Mudhanda SC457 and SC458 of 2015, Judgment Number SC5/18 (“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.
In the same case it was explained that generally a plea is the answer by a defendant to the claim by the plaintiff as set out in the particulars of claim or in a declaration as the case may be. In addition to a plea which raises a defence on the merits of a claim, a defendant may also raise a special plea which has its object either to delay proceedings or to quash the action altogether.
Forms of special pleas
In the Van Brooker v Mudhanda case (supra or above) reference is made to the decision by Gillespie J in the case of Doelcam (Pvt) Ltd v Pichanick and Others 1999 (“Doelcam v Pichanick”). It was said that 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.
According to that case special pleas are in three kinds. There are pleas in bar, declinatory pleas and dilatory pleas. Declinatory and dilatory pleas are generally referred to as pleas in abatement.
According to the case a special plea in bar is one by which a party may interpose a purely formal objection to the jurisdiction of the court. The plea is available as a plea to the jurisdiction or as a plea for the recusal of a judge and in no other case. Other pleas are available to disclose some ground either for quashing or delaying proceedings. Both are usually termed pleas in abatement, although that expression is properly used to describe the declinatory rather than dilatory plea. A plea in abatement, strictly so called, avers some good ground, not disclosed in the declaration, which otherwise is admitted, for denying the plaintiff relief.
According to the case, dilatory plea advances some fact, not disclosed, in the declaration, which is otherwise admitted, and which entitles the defendant to stay of proceedings.
The case of Tendai Mashamhanda versus Bariadie Investments and Others, HC 3955/22, Judgement number HH 141-23, an opposed application for special pleas, is quite useful. It covers special pleas such as recusal of the court, locus standi, non-joinder and mis-citation, lis alibi pendens, arbitration as a condition precedent, prescription, non-joinder, misjoinder, res judicata and absence of jurisdiction.
Examples of special pleas
Locus standi
It is common for an opposing party to raise the special plea of locus standi or lack of the right to be heard or sue. This is usually done by alleging that the party suing has no direct and substantial interest in either the subject matter or in the relief sought from the court.
Lack of jurisdiction
This is raised by the opposing party by alleging that the suing party has instituted legal proceedings in a court of law that lacks jurisdiction or the right to hear the dispute.
Prescription
Prescription of a claim or debt is raised as a special plea many times, to defend that the plaintiff’s right to the claim or debt has lapsed based on the provisions of the Prescription Act (Chapter 8:11).
Special plea of arbitration
Some agreements make it a requirement that parties have to go through arbitration before litigation in a court of law is instituted. In other words, jumping arbitration may be raised as a special plea.
Non – joinder and mis- joinder
It is common to raise a special plea of non-joinder where a party that ought to be part to the legal proceedings has been left out. On the other hand, a misjoinder is when a party that ought not to be part of the proceedings has been included.
Mis-citation
In this special plea a party to legal proceedings would have been cited incorrectly. For example, through citing a non-existent person or an error in the name of the legal persona.
Res judicata
This special plea of res judicata may be raised where a dispute between the parties has already been adjudicated or dealt with by a competent court and a final decision made.
Lis pendens
This special plea may be raised where other legal proceedings based on the same cause of action are pending in another court.
Conclusion
It is important for a legal practitioner to understand and properly deal with special pleas as these act as roadblocks to dealing with disputes on the merits.
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), MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. 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.
