TRADEPASS MARKETING SERVICES (PVT) LIMITED
T/A OUTREACH FOR JESUS CARPENTERS APPLICANT
VERSUS
M. FILANNINO AND MARKOU M 1st Respondent
And
JOHN POCOCK AND COMPANY (Pvt) LIMITED 2nd Respondent
And
ADVOCATE HILDA MAKUSHA MOYO N.O 3rd Respondent
And
MR G. NYATHI, OF Sansole and Senda N.O 4th Respondent
And
PINEAUS MADZIVIRE Joel Pincus Konson and Wolhuter N.O 5th Respondent
And
CLERK OF CIVIL COURT MRS J. MAPFUMO N.O 6th Respondent
And
ACTING PROVINCIAL MAGISTRATE P. MSIPA N.O 7th Respondent
And
MESSENGER OF COURT N.O 8th Respondent
And
MAGISTRATE S. JELE N.O 9th Respondent
And
DEPUTY SHERIFF, BULAWAYO N.O 10th Respondent
HIGH COURT OF ZIMBABWE
MATHONSI J
BULAWAYO 28 AND 31 MARCH 2011
JUDGMENT
MATHONSI J: In this matter the applicant seeks an order declaring that there is a bar operating against the 2nd Respondent and that the special plea filed by the 2nd Respondent was filed out of time.
On 7 February 2011 the applicant filed a notice of intention to bar which was served on Calderwood Bryce Hendrie and Partners, the legal practitioners of the 2nd Respondent that same day. The time during which the 2nd Respondent was required to file a plea or other answer to the claim expired on 14 February 2011. The 2nd Respondent managed to file a response by close of business on that day in the form of a special plea.
The applicant has argued that the fact that the special plea was served the following day on 15 February 2011 nullified it. I do not agree. The plea was filed on time and its service a day later did not render it invalid. The applicant’s attempt to bar the 2nd Respondent on 16 February 2011 days after the plea had been filed was an exercise in futility and of no legal consequence.
The applicant has also attacked the merits of the special plea. That is an issue to be determined when the matter is argued. It cannot be raised by a separate chamber application. Heads of argument have been filed and an application for a set down date made. The matter should therefore be set down on the opposed roll and disposed of that way.
I ccme to the conclusion that the application is without merit. It is accordingly dismissed with costs.
Joel Pincus, Konson and Wolhuter, 1st, 3rd,5th,6thand 8thDefendant’s Legal Practitioners
Messrs Calderwood, Bryce Hendrie & Partners, 2ndDefendant’s Legal Practitioners
Messrs Sansole and Senda, 4thDefendant’s Legal Practitioners