Rio Tinto Africa Pension Fund v Zituta & Ors (HC 3047 of 2014) [2015] ZWHHC 344 (26 March 2015)
The court cannot set down a special plea for argument after expiry of dies induciae as prohibited by rule 138. The previous order is rescinded under rule 449, with parties to file a joint pre-trial conference memorandum and proceed to trial.
Source-derived case information.
- Citation
- [2015] ZWHHC 344
- Parties
- Plaintiff: RIO TINTO AFRICA PENSION FUND; Defendant: EFFIE ZITUTA; Defendant: JONNY SIPAMBENI ZITUTA; Defendant: ALLEN MLAMBO
- Court
- Harare High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HC 3047 of 2014
- Procedural Posture
- Civil / Pre Trial Conference
- Outcome
- order rescinded; directions issued
- Legal Topics
- Special Plea, Rescission of Order, Pre Trial Conference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
RIO TINTO AFRICA PENSION FUND
Plaintiff
EFFIE ZITUTA
Defendant
JONNY SIPAMBENI ZITUTA
Defendant
ALLEN MLAMBO
Defendant
Procedural Posture
Civil / Pre Trial Conference
Legal Issues
- 1 Whether the special plea can be set down for argument after expiry of dies induciae under rule 138
- 2 Whether the court can rescind its previous order referring the special plea for argument
Ratio Decidendi
The court cannot set down a special plea for argument after expiry of dies induciae as prohibited by rule 138. The previous order is rescinded under rule 449, with parties to file a joint pre-trial conference memorandum and proceed to trial.
Court Disposition
order rescinded; directions issued
Orders
- The previous order is rescinded.
- Parties to file a joint pre-trial conference memorandum by end of day 2 April 2015.
Full Case Text
Judgment text and source record
1 paragraphs
1 HH 344-15 HC 3047/14 RIO TINTO AFRICA PENSION FUND versus EFFIE ZITUTA and JONNY SIPAMBENI ZITUTA and ALLEN MLAMBO IN THE HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 27 March 2015 Pre-trial conference T Pasirayi, for the plaintiff A Marara, for the defendants MATANDA-MOYO J: On 30 September 2014 I had directed parties to file heads of argument in relation to the special plea as myself and the parties were of the view that once the special plea was dealt with the matter was capable of being resolved at PTC stage. I then had sight of r 138 of this court’s rules and realized that in terms of r 138 (a), (b) and (c) it is not permissible to refer the special plea for argument after the expiry of the dies induciae as provided for in that rule, and that paragraph (c) prohibits the setting down of the special plea for argument after the dies induciae before the trial. I have thus decided to exercise the powers granted to me in terms of r 449 to mero motu rescind my order. On 20 March instant I met with the parties in my chambers and the parties have consented thereto. Accordingly the order is rescinded and in its place the following order is made; The parties are directed to file a joint PTC memo as discussed by end of day 2 April 2015 and the matter shall be referred to trial on those issues. Gill, Godlonton & Gerrans, plaintiffs’ legal practitioners Mtangamira & Associates, defendants’ legal practitioners