MAC EN PAUL PRIVATE LIMITED v GWANDA MUNICIPALITY and ANOTHER (227 of 2025) [2025] ZWHHC 227 (31 March 2025)

1 HH 227-25 HCHC 357-24 MAC EN PAUL PRIVATE LIMITED Versus GWANDA MUNICIPALITY And ZIMBABWE NATIONAL ROADS ADMINISTRATION HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 5 and 31 March 2025 Interlocutory application R. G. Zhuwarara for plaintiff L. Nkomo for first defendant V. C. Chidzanga with E. Jera for second defendant CHILIMBE J BACKGROUND [1] The objection raised by plaintiff on the eve of hearing defendants` special pleas depends on the applicability of r 4(2) of the Commercial Court Rules1 to the matter at hand. I set out r 4 in its entirety below to better accentuate the import of r 4(2); - 4 Application (1) These rules shall, unless expressly provided otherwise, apply to all commercial disputes brought before the Commercial Division of the High Court (hereinafter referred to as “the court”). (2) To the extent that any procedural matter arises during any proceedings before the court, which matter is not specifically regulated or provided for under these rules, then in such event the High Court Rules, 2021 (hereinafter referred to as “the High Court Rules”) shall apply mutatis mutandis). (3) The court shall in administering these rules, have due regard to the set of values set out in the Second Schedule to these rules and the need to achieve substantial justice inter parties in any particular case without derogating from the principles of natural justice or established law and resolving the dispute timeously. 1 The High (Commercial Division) Rules SI 123 of 2020, here referred to as the “Commercial Court Rules” HH 227-25 HCHC 357-24 THE DISPUTE BETWEEN THE PARTIES [2] I will return shortly to this rule as well as the preliminary objection. Meanwhile I set out the brief facts constituting the dispute. Plaintiff (“Mac En Paul”) is duly registered Zimbabwean Corporate entity, and according tom the declaration, one renowned for its expertise in civil engineering, construction projects and mostly roads construction. [3] The two defendants are both statutory corporations. First defendant (“Gwanda Municipality”), being an urban local authority and second defendant (“Zinara”) a national roads authority. By written contract dated 21 January 2019, Gwanda Municipality engaged Mac En Paul to undertake road rehabilitation works on the Heroes Junction, Asima and Big Ben roads in Gwanda. [4] The contract- titled “Contract Agreement and Conditions of Contract for Road Reconstruction Project MOG RD 1/2018” -is cited in the papers by its reference of “MOGRD01/2018”. I will similarly refer to it as such. The relationship ran aground. On 23 May 2024, Mac En Paul issued summons against Gwanda Municipality and Zinara claiming from them jointly and severally, the sum of US$127,022,92 for services rendered. [5] Zinara, according to Mac En Paul, was party to the contract as a financier and partner. As such Zinara bore the obligation to settle the indebtedness. The two defendants resisted the suit. Each defendant raised a special plea in addition to pleading over to the merits. Gwanda Municipality argued prescription and jurisdiction, whilst Zinara also protested over jurisdiction in addition to misjoinder. THE OBJECTION BY PLAINTIFF [6] Mac En Paul replicated to the special pleas on the merits but raised, after the initial set down, a point of law which forms subject of this judgment. Whilst Mac En Paul filed written submissions in moving the point of law, the defendants elected to oppose same via oral submissions from the bar. [7] It was submitted on behalf of Mac En Paul that the two defendants` special pleas were each rendered fatally defective for want of compliance with the rules. According to Mr Zhuwarara for Mac En Paul, the special pleas fell afoul of r 4 (2) of the Commercial Court Rules as read with r 42 (2) of the High Court Rules 2021. This error, argued counsel, in turn generated a number of anomalies. HH 227-25 HCHC 357-24 [8] The defendants did not, to begin with, utilise Form 11(b) which is prescribed in the rules for usage in filing a special plea. The forms adopted did not stipulate whether special plea was in bar or abatement. Gwanda Municipality`s form did not, according to Mr. Zhuwarara, identify its legal practitioners. Neither did it indicate the parties` addresses. [9] A further breach, submitted counsel, was that both defendants filed their special plea with the plea on the merits, an approach prohibited by the rules and form concerned. The provisions of r 42 (2) of the High Court Rules were peremptory. This position, argued counsel was stated in decisions such as Jensen v Acavalos2 1993 (1) ZLR 216, and Zimbabwe Open University v Madzombwe 2009 (1) ZLR 101 (H). [10] On that basis, Mr. Zhuwarara, further relying on the uncirculated decision of Mudzamiri v Yarnfield HCH 2603-23, moved the court to strike the specially pleas off for want of compliance with the rules. In response, counsel for the defendants associated with each other`s positions. Mr. Nkomo for Gwanda Municipality urged the court to adopt a pragmatic approach in dispensing with the point. The argument on behalf of Mac En Paul was, he contended, an inconsequential quarrel of form rather substance. [11] In any event, the court could remedy the situation by condoning the defendants so that matter proceeded to be heard and disposed of on the merits. Ms Chidzanga for Zinara similarly submitted that the question of which form a party adopted crystallized to whether or not the other side was prejudiced. Counsel sought to distinguish the decision of Mudzamiri v Yarnfield from the present matter. [12] The court in Mudzamiri was faced with a special plea and exception. Further, the matter was determined “in the General Division “she pointed out. Ms Chidzanga also urged the court to recognise that no prejudice had been occasioned to Mac En Paul. As such, the court had a duty to focus on resolving the underlying dispute between the parties. Mr. Zhuwarara`s answer was to draw attention to the failure by Ms Chidzanga to ask for the court`s condonation. Such failure meant that the court could not extend mero motu, a reprieve to Zinara for the infraction. 2 “Acavalos” is frequently mis-cited as “Avacalos”. HH 227-25 HCHC 357-24 DOES RULES 42 (2) OF THE HIGH COURT RULES APPLY TO THE FILING OF SPECIAL PLEAS IN THE COMMERCIAL COURT? [13] The point of law raised on behalf of Mac En Paul turns, as observed at commencement, on the application of r 42 (2) of the High Court Rules to the present proceedings. Mr. Zhuwarara presumed that its application was automatic. Neither counsel for the defendants appeared to have to have considered this point. Ms Chidzanga did attempt a distinction between the rules of the Commercial Division and General Division but took the matter no further. [14] The starting point is to recognise the obvious. The Commercial Court exists as a separate Division of the High Court. This distinction and its implications have been well-articulated in a number of decisions such as Matthew Rosenfeldt v The Brackenhills Trust & 4 Ors HH 348- 23, Blakey Investments (Pty) Ltd v Delta Beverages (Pvt) Ltd & 2 Ors HH 388-23; Centenary Tobacco (Pvt) Ltd v CMED HH 591-24, Hashiti &Anor v Seedco HH 615-24, Streamspace Incorporated (Pvt) Ltd v Hayes Construction (Pvt) Ltd HH 53-25 and Blakey Investments (Pty) Ltd v Delta Beverages (Pvt) Ltd & 2 Ors HH 388-23 where MAFUSIRE J observed as follows; - “[10] The Commercial Division of the High Court of Zimbabwe was established in 2022 in accordance with s 46A of the High Court Act [Chapter 7:06]. It opened its doors to the public on 6 May 2022. It is governed by, among other things, its own set of Rules3 as well as the High Court Rules, 2021 [SI 202 of 2021]. The broad rationale for establishing specialist divisions of a court is, among other things, to streamline and improve citizens’ right of access to justice. With the Commercial Division in particular, it is the Judiciary’s contribution to the ease of doing business in Zimbabwe in order to improve, among other things, the investment climate. The conception of this Division was with a view to quicken the process of adjudication of disputes of a commercial nature by, among other things, streamlining the rules of 3 High Court (Commercial Division) Rules, 2020, SI 123 of 2020, as amended by High Court (Commercial Division) (Amendment) Rules, 2022, SI 79 of 2022. HH 227-25 HCHC 357-24 procedure. It is a Division which, in the determination of the cases, is guided by certain principles and values.” [ underlined for emphasis] [15] Flowing from the above, one may restate the following; - the Commercial Court has its own set of rules purposive to the attainment of that court`s objects as a specialised Division of the High Court. The preamble to the rules and r 2 thereof, indicate that the said rules shall regulate proceedings in the Commercial Division of the High Court. Rule 4 (1) set out above again prescribes that the rules shall apply “unless expressly provided otherwise” to proceedings brought in the Commercial Division. [16] Pursuant to this condition in r 4 (1), between their length and breadth, the Commercial Court Rules make extensive reference to the application of the High Court Rules. Rule 12 providing for the filing of special pleas does not carry such an express reference to r 42 (2) of the High Court Rules. I set these two provisions side by side The Commercial Court Rules The High Court Rules Subheading 12 Plea 42. Exceptions, special pleas, applications to strike out and applications for particulars Procedure 12 (2) The plea, exception, special plea or other 42 (2) A plea in bar or abatement, exception, application prescribed answer shall be supported by a paginated and indexed to strike out or application for particulars shall be in the bundle of all relevant and material documentary form of such part of Form No. 11 as may be appropriate evidence and a summary of the evidence that the with the necessary changes and a copy thereof filed with defendant relies on which shall be in Form No. CC 2. the registrar and in the case of an application for particulars, a copy of the reply received to it shall also be filed DOES R 4 (2) OF THE COMMERCIAL COURT RULES INVITE R 42 (2) OF THE HIGH COURT RULES ON THE PROCEDURE FOR FILING SPECIAL PLEAS? [17] The option for one Superior Court to adopt the rules of another is a flexibility well- entrenched in the adjectival tradition of our courts. Equally well-established is the formula by which such cross-referencing takes effect. It may be by way of specific reference, default of other specific parameter. HH 227-25 HCHC 357-24 [18] In all such instances, the rules themselves prescribe when and how the application of rules of one court in another will occur. I set out how the various courts have addressed the matter in a few examples hereunder: - (i)The Constitutional Court [19] Rule 45 of the old Constitutional Court Rules SI 61 of 2016, now R 53 of the Constitutional Court Rules SI 19 of 2025 provided that; - 45 Application of Supreme Court Rules In any matter not dealt with in these rules, the practice and procedure of the Court shall, subject to any direction to the contrary by the Court or a Judge, follow, as near as may be, the practice and procedure of the Supreme Court or where the rules of the Supreme Court are silent, of the High Court. [ 20] This rule was interpreted as follows in Liziwe Museredza And 385 Ors V (1) Minister of Agriculture, Lands, Water And Rural Resettlement & 9 Ors CCZ 11-21. At page 2 per MAKARAU JCC held that; - “This rule of the High Court is applicable in this Court by virtue of the provisions of r 45 of the Rules. Rule 45 imports into the practice and procedures of this Court, as near as may be, the practice and procedures of the Supreme Court, or where the rules of the Supreme Court are silent, of the High Court, in any matter that is not dealt with by the Rules. There is no equivalent of r 449 of the High Court Rules in the Rules or in the rules of the Supreme Court.” (ii)The Supreme Court [21] Rules 39 and 73 of the Supreme Court Rules SI 84 of 2018 provide that; - 39. Applications generally (4) Applications referred to in rules 43, 48, 49, 53 and 55 shall be by way of chamber application as regulated, mutatis mutandis, by the High Court Rules. 73. Application of High Court rules HH 227-25 HCHC 357-24 In any matter not dealt with in these rules, the practice and procedure of the Supreme Court shall, subject to any direction to the contrary by the court or a judge, follow, as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules. [22] The Supreme Court per MAVANGIRA JA commented as follows on in Dairiboard Zimbabwe (Private) Limited v The Taxing Master N. O. (2) Richard Gangira SC 61-24 at page 5; - “The rule clearly stipulates that recourse to the practice and procedure of the High Court in terms of the High Court Act and the High Court Rules is resorted to in any matter not dealt with in the Supreme Court Rules. The matter at hand is dealt with in the Supreme Court Rules. In terms thereof, any party aggrieved by a taxation that has been done is afforded the remedy of seeking a review of the same. That is the remedy that the applicant seeks in this application. No cause exists, nor has any been established for perceiving a lacuna in the rule.” (iii) The Commercial Division [23] In Zimbabwe Leaf Tobacco Company (Pvt) Ltd v Bhuka Fungai Chinamasa HH 658-23 MANZUNZU J held as follows at page 1; - “Provisional sentence is governed by Rule 14 of the High Court Rules, 2021. Subrule (1) provides that: “Where the plaintiff is the holder of a valid acknowledgment of debt, commonly called a liquid document, the plaintiff may cause a summons to be issued claiming provisional sentence on the said document.” The plaintiff issued summons in terms of this rule. The Commercial Division resorts to this rule because r 4 (2) of the High Court (Commercial Division) Rules 2020 authorizes this court to do so.” [24] MAFUSIRE J followed this approach in Ever Prosperous Worldwide Ltd v Bekithemba Moyo HH 31-25, when dismissing a challenge that the provisional sentence procedure was an alien procedure in the Commercial Division. He determined the point on the basis that the relief concerned was of intrinsic relevance to disputes specifically meant for resolution by the HH 227-25 HCHC 357-24 Commercial Court as a specialised Division of the High Court. The learned judge observed that; - “[20] The Commercial Division in Zimbabwe opened its doors to the public on 6 May 2022. It is governed by, among others, its own set of rules [S. I. 123 of 2020, as read with S. I. 179 of 2022]. But it is also governed by the rules of the Civil Division of the High Court, S. I. 202 of 2021. In particular, r 4 of the Commercial Division Rules provides that the Commercial Division Rules shall apply to all commercial disputes brought before the Division but that should any procedural matter arise during any proceedings before the court which may not specifically be regulated or provided for under its own rules, then the rules for the General Division would apply mutatis mutandis .” (iv) The Intellectual Property Tribunal [25] Section 12 (2) (b) of the Intellectual Property Tribunal Act [ Chapter 26:08] provides as follows; - 12 (b) if the rules referred to in paragraph (a) cannot be applied appropriately, the Tribunal shall act in such manner and on such principles as it considers best fitted to do substantial justice and to effect and carry out the objects and provisions of this Act and the appropriate Act, and for that purpose may give the parties to the proceedings instructions on the course to be pursued. APPLICATION OF THE LAW TO THE PRESENT DISPUTE [26] It is clear that migration from one set of rules follows a structured process to justify same. The arguments before did not adopt that approach. They did not commence with an identification of the deficiency, gap or grey area in the Commercial Court Rules. Such an exercise should have examined closely, r 12 dealing with special pleas. [27] Importantly, the survey ought to have taken due regard and explained the import of rr 6 and 7 which I set out below; - 6 Commencement of proceedings HH 227-25 HCHC 357-24 (1) Proceedings in the court shall, except in the case of proceedings which by these rules or under any other law are required to be instituted by any other specified mode of commencement, be instituted by way of application. (2) Proceedings shall be instituted in the relevant form as may be prescribed. 7 Determination of nature of proceedings (1) Proceedings— (a) in which the sole or principal question at issue is or is likely to be one of the interpretation of any law or of any instrument made under any law, or of any deed, contract or other document, or some other questions of law, shall be instituted by way of application; (b) in which there is likely to be a substantial dispute of fact or for any other reason a person considers that the proceedings may not appropriately be instituted by way of an application, shall be instituted by way of a summons commencing action. [28] Finally, the discussion needed to then establish if any perceived gap or difference in the Commercial Court Rules was in fact not intentional. Especially having regard to r 2 as read with the Values listed in the Second Schedule. This aspect constitutes a critical component of any inquiry into whether r 4 (2) should be employed. DISPOSITION [29] From the aforegoing, it is clear that the point of law was rather desultorily moved and defended. In that regard, I am not persuaded to make a firm finding on whether the procedure set out in r 42 (2) of the High Court Rules should necessarily apply to special pleas filed in the Commercial Court. The point of law will not find favour. I am also inclined-again based on the largely tangential arguments presented -to let each party bear its own burden of costs. It is therefore ordered that; 1. The point of law raised on behalf of plaintiff be and is hereby dismissed. 2. Each party to bear its own costs. Jonasi Attorneys-plaintiff`s legal practitioners Coghlan and Welsh-first defendant`s legal practitioners Moyo and Jera -second defendant`s legal practitioners. [CHILIMBE J____31/03/24] HH 227-25 HCHC 357-24