Marinda and Others v Minister of Local Government and Public Works and National Housing and Others (433 of 2025) [2025] ZWHHC 433 (21 July 2025)

1 HH 443 - 25 HC 8115/18 ROBERT DOW versus POMELO MINING (PVT) LTD and POMELO TRADING (PVT) LTD HIGH COURT OF ZIMBAWE MAMBARA J HARARE 22 & 28 July 2025 Summons commencing action– Special Plea and exception Ms P Nkomo, for the plaintiff Mr R Nyapadi, for the defendants MAMBARA J: This judgment addresses preliminary issues raised by the defendants in this matter, specifically, a special plea of prescription and an exception in the action brought by the plaintiff, Robert Dow, to recover a debt under a financing agreement. The plaintiff is a foreign investor, and the first defendant, Pomelo Mining (Private) Limited, is a Zimbabwean company. After amendments to the pleadings, a second defendant, Pomelo Trading (Private) Limited, has been joined. The defendants’ special plea and exception are considered here in limine, as they potentially dispose of the claim without a trial on the merits. The court’s task is to determine; (i) (ii) whether the plaintiff’s claim is prescribed, (ii) whether the first defendant’s exception and related special plea regarding misjoinder is procedurally and substantively sound. Factual Background The material facts are largely common cause. On 14 May 2015, the plaintiff and first defendant entered into a written Facility Agreement under which the plaintiff advanced an unsecured loan of US$200,000 to the first defendant. The funds were to be used in the defendant’s gold trading business including placement in a CABS money market account and for working capital to purchase gold. The Facility Agreement provided that the principal sum would be repaid within 12 calendar months of the agreement, that is, by 14 May 2016. It further stipulated that interest on any overdue amounts would accrue at the rate of 1% per month from the date of the agreement. In addition, and of significance to the legal issues, the HH 443 - 25 HC 8115/18 contract contained a governing law clause. It expressly states that “[t]he governing law of the Agreement is the Law of England and Wales.”. The agreement also conferred non-exclusive jurisdiction on the courts of England and Wales for dispute resolution, meaning the parties contemplated that courts in other jurisdictions, such as this Court, could also adjudicate disputes arising from the contract. It is not in dispute that the defendant failed to repay the US$200,000 by the due date of 14 May 2016. In breach of the agreement, no repayment was made within the 12-month term. The plaintiff, through his legal practitioners, issued a written demand for payment, but the defendant still neglected or refused to pay the amount due. As a result, on 6 September 2018 the plaintiff caused summons to be issued out of this Court under Case No. HC 8115/18. In his summons and declaration, the plaintiff claimed the principal sum of US$200,000, together with interest at 1% per month from 14 May 2015 to date of payment in full, costs of suit on the legal practitioner-client scale, and collection commission. The summons was served on the first defendant, Pomelo Mining (Pvt) Ltd, which entered an appearance to defend on 14 September 2018. In the initial pleadings exchange, the first defendant filed a plea on the merits on 30 January 2019. Notably, that 2019 plea did not raise any plea of prescription nor any objection that the plaintiff had sued the wrong party. The defendant’s defence at that stage addressed the substance of the claim (denying liability), without taking technical points. The plaintiff filed a replication on 14 February 2019 joining issue with the defendant. A lengthy pre-trial process then ensued, including exchanges of further particulars, discovery, and pre-trial conferences. During this period, it emerged that the plaintiff was not the only investor who had advanced funds to the Pomelo mining venture under similar arrangements. At least three other investors – one John Dallas, one David van der Valt, and one John Toussaint – had instituted parallel actions in this Court against Pomelo Mining (Pvt) Ltd to recover their investments (High Court Cases HC 8116/18, 8117/18, and 8118/18, respectively). Those matters appear to have been handled together, and on 10 October 2019 MUZOFA J delivered a judgment (High Court Harare HH 658 - 19) dealing with preliminary objections raised by the defendant in those similar cases. In the MUZOFA J judgment, which has a direct bearing on the issues now before this Court, the defendant (Pomelo Mining) had raised an exception and an application to strike out portions of the claims by the other investors. The defendant argued, inter alia, that those claims were prescribed under the Prescription Act [Chapter 8:11], and it sought to strike out HH 443 - 25 HC 8115/18 the claims for collection commission as being improperly included. The plaintiff investors opposed that application, asserting that the running of prescription had been interrupted by an acknowledgment of the debts made by the defendant’s principals at a meeting on 30 May 2017. They also took a preliminary point that prescription is a matter to be pleaded by special plea and cannot be taken by way of exception. MUZOFA J upheld the plaintiffs’ position on both counts. She observed that under our law, “the defence of prescription should not be raised by way of exception but must be specifically pleaded”. By its nature, a plea of prescription is a special plea, because it introduces new facts, the lapse of time and non- interruption to defeat the claim. MUZOFA J ruled that the defendant’s attempt to raise prescription by exception was bad in law and had to be dismissed. In so ruling, she relied on the Supreme Court’s guidance in Van Brooker v Mudhanda & Anor (and Pearce v Mudhanda & Anor), SC 5/18, which emphasized the distinction between an exception and a special plea. In the Van Brooker case, the Supreme Court explained that a dilatory plea (such as a plea of prescription or misjoinder) admits the allegations in the declaration but alleges an extraneous fact that, if proven, would delay or extinguish the plaintiff’s claim. Because evidence is required to establish such extraneous facts (e.g. the passage of time without interruption), these defences must be raised by way of a special plea and proven, rather than being taken by exception on the pleadings. MUZOFA J’s judgment thus made clear that the proper procedural vehicle for a prescription defence is a special plea, not an exception. Additionally, in the course of that 2019 ruling, MUZOFA J noted the investors’ allegation that the defendant had acknowledged the debts in a May 2017 meeting, which, if accepted, would have interrupted prescription under s.18 of the Prescription Act. In fact, the acknowledgement of debt in May 2017 would restart the prescription clock from that date, but MUZOFA J did not need to make a conclusive finding on that factual point at the exception stage. She simply recorded the plaintiffs’ contention and proceeded to dismiss the exception on procedural grounds. It appears that as a result of that judgment, the other investors’ cases were allowed to proceed on the merits, with the prescription issue to be decided on evidence if it remained in dispute. Returning to the present case, the first defendant, perhaps emboldened by the delay in the proceedings, eventually sought to raise similar technical defences against Mr. Dow’s claim. On 7 October 2022, well after filing its original plea, the first defendant filed a special plea averring that the plaintiff’s claim had prescribed. The timing is telling. This came almost three years after the close of pleadings, likely prompted by the realization that the plaintiff’s HH 443 - 25 HC 8115/18 claim filed in 2018 was approaching what the defendant viewed as a prescriptive period if calculated from the May 2015 agreement. The plaintiff promptly filed a replication to the special plea, as well as Heads of Argument opposing it. The special plea was set down on the High Court opposed roll for hearing on 28 October 2022. However, before the special plea could be argued, the plaintiff took steps to strengthen his position by addressing a potential defect the defendant had hinted at but not formally pleaded earlier, namely, the identity of the correct debtor. The Facility Agreement documents in the record reveal a discrepancy in the naming of the corporate obligor. The contract defines the “Borrower” as Pomelo Trading (Pvt) Ltd, while the summons had cited Pomelo Mining (Pvt) Ltd as the defendant. It appears that Pomelo Trading and Pomelo Mining are closely related entities, possibly the same company operating under a different name, or sister companies under common control. In any event, the first defendant eventually took the position that it was “the wrong party” and that the entity which actually received the loan was Pomelo Trading. In order to pre-empt this argument, the plaintiff, in early 2023, sought leave to amend his summons and declaration to join Pomelo Trading (Pvt) Ltd as a co-defendant. A formal application for joinder was filed (recorded as Annexure “B” in the consolidated record), which the High Court granted unopposed. Consequently, an Amended Summons was issued and served in mid-2024, now citing Pomelo Mining as the first defendant and Pomelo Trading as the second defendant in Case No. HC 8115/18. The amended pleadings did not change the substance of the claim (the amount due, the cause of action, and relief sought remained the same), but they clarified the roles of the two Pomelo entities. The plaintiff alleges, in essence, that between Pomelo Mining and Pomelo Trading, one or both of them are liable for the debt: either Pomelo Mining as the entity that dealt with him and benefitted from the loan, or Pomelo Trading as the nominal borrower named in the agreement – or indeed that Pomelo Mining and Pomelo Trading were alter egos such that both are jointly liable. After service of the amended summons and accompanying amended declaration, both defendants entered appearance to defend and then filed the pleas now under scrutiny. The first defendant filed a combined Exception and Special Plea dated 1st April 2025. In that pleading, the first defendant raises two main points: (1) a special plea in bar, arguing that the first defendant was not party to the Facility Agreement and therefore the plaintiff has sued the wrong entity (misjoinder), and HH 443 - 25 HC 8115/18 (2) an exception to the declaration on the basis that, in light of the above, the plaintiff’s pleading discloses no cause of action against the first defendant. The second defendant, for its part, filed a Special Plea of prescription. The second defendant avers that the claim against it became prescribed because it was only sued in 2023, roughly eight years after the debt arose in 2015 and well outside the three-year prescriptive period under Zimbabwean law. Both defendants also filed Heads of Argument supporting these preliminary pleas. It is important to record a procedural irregularity at this juncture. The defendants’ new special pleas and exception were filed long after the stage at which such pleas are normally required to be raised. In terms of the High Court Rules 2021, Rule 42(1), a plea in bar (special plea) or exception must be filed before or together with the defendant’s plea to the merits, not afterward. By the time the first defendant filed its 2023 exception and special plea, it had already pleaded to the merits years earlier (in 2019). Similarly, the second defendant’s special plea came six to seven months after it was joined, well outside the 10-day period for pleading prescribed by the rules (absent an extension or consent). No application for condonation accompanied these out-of-time filings. According to the record, the first defendant’s exception was about 15 days late even from the date of its receipt of the amended declaration, and the second defendant’s special plea was approximately 6½ months late. This non-compliance with procedural timelines is a significant factor to be considered, as the court cannot lightly condone such breaches in the absence of a formal application explaining the delay. Indeed, both our domestic rules and case law underscore that parties must raise dilatory or preliminary pleas timeously, or risk having them disregarded as irregular. Noting this discrepancy, the plaintiff raised several points in limine to the preliminary issues raised by the defendants. These were that the matter is lis pendens, failure to comply with r 42 of the High Court Rules, 2021 and that the special plea was filed out of time in contravention of r 37(3) of the High Court Rules 2021. In order to neatly deal with this matter, I will adopt a roll over approach where will I deal with the points in limine raised by the parties against and in rebuttal and try to resolve the matter wholesomely. Against this backdrop, the issues for determination are delineated below. 1. Prescription: Whether the plaintiff’s claim or any part of it is extinguished by prescription, as contended by the defendants in their special pleas. This issue encompasses several sub-questions: (a) What is the applicable prescriptive period and law governing this claim, given the contract’s English governing law clause? HH 443 - 25 HC 8115/18 (b) When did the debt become due and when did prescription begin to run? (c) Was prescription interrupted or delayed by any acknowledgment of liability or by any conduct of the defendants? (d) In respect of the second defendant, can it invoke prescription given the circumstances of its late joinder? 2. Misjoinder and Exception: Whether the first defendant’s exception and related special plea which argues that the first defendant is not the proper debtor and that the claim discloses no cause against it is procedurally properly before the court and, if so, whether it has merit. This issue involves considering (a) the requirement to raise such pleas timeously under Rule 42(1) and the consequences of the first defendant’s failure to do so, and (b) the substantive question of whether the plaintiff has indeed sued the wrong party or no party at all, and what the legal effect of the plaintiff’s amendment (joining Pomelo Trading as second defendant) is on that objection. These are the issues that will resolve the various points in limine taken by both parties Before analysing these issues, it is worth reiterating the relevant contractual provision: the governing law clause. Both parties accept that the Facility Agreement is governed by English law. However, neither side suggests that any rule of English law would bar or permit the claim in a manner different from Zimbabwean law insofar as prescription is concerned. The choice of English law governs the substantive rights and obligations under the contract, but matters of procedure such as the prescription or limitation of actions are generally governed by the lex fori – the law of the forum (Zimbabwe) – unless the limitation law is considered part of the substance of the obligation. Under English conflict-of-law principles, limitation periods are treated as procedural unless the Foreign Limitation Periods Act applies. In Zimbabwean law, by contrast, prescription is typically regarded as substantive in effect (extinguishing the debt), but our courts will apply our own Prescription Act to actions litigated here unless justice demands otherwise. Fortunately, in this case the distinction is largely academic. The English Limitation Act 1980 provides a six-year limitation period for actions founded on a simple contract. The Zimbabwean Prescription Act [Chapter 8:11] provides a three-year prescription period for ordinary debts, running from the date the debt becomes due. The plaintiff’s claim was filed roughly two years and four months after the debt fell due, so it was well within even the shorter three-year term. Thus, under either English or Zimbabwean time limits, the suit was initiated timeously as of 2018. The defendants’ HH 443 - 25 HC 8115/18 prescription argument hinges not on the initial filing, but on events thereafter and on the second defendant’s late joinder. With this understanding, I turn to the analysis of the issues. (1) Prescription of the Plaintiff’s Claim Applicable Law and Prescriptive Period: It is common cause that the loan became due for repayment on 14 May 2016, twelve months after disbursement, absent any agreed variation of that term. According to the Prescription Act [Chapter 8:11], an ordinary debt in Zimbabwe is extinguished by prescription after the lapse of three years from the date it becomes due, unless prescription is interrupted or delayed in terms of the Act. As noted, English law, the proper law of the contract, allows six years for a contractual claim. In this case, the shorter Zimbabwean period is determinative if it is treated as a procedural bar in our courts. The plaintiff filed summons on 6 September 2018, which was within 2½ years of the due date. Therefore, prima facie, the claim was filed within the 3-year prescription period provided by our law. Even if English law were applied to the limitation issue, the claim was brought within 6 years and is timely. Thus, at face value, as of the date of summons the plaintiff’s cause of action was not prescribed. The defendants’ special plea of prescription relies on a more nuanced timeline. They argue that by the time the matter came to be heard, or by the time the second defendant was joined, more than three years had passed, thereby barring the claim. It is necessary to distinguish two separate aspects of prescription here: (a) prescription in relation to the original action against the first defendant, and (b) prescription in relation to the claim as directed against the second defendant, who was only added in 2023. (a) Prescription vis-à-vis First Defendant: As just noted, the action against Pomelo Mining (first defendant) was instituted well within three years of the debt’s due date. The first defendant’s own pleadings acknowledge that summons was issued in September 2018. By that date, only 28 months had run since the due date of 14 May 2016, so ordinarily the Prescription Act would not yet have extinguished the debt. The first defendant’s special plea, however, seems to implicitly suggest that the debt may have become due earlier or that time was not reset by any later acknowledgment. The plea is short on specifics, but in their Heads of Argument the defendants contended that the plaintiff “held back any action in hope that the defendant’s fortunes would turn around,” effectively allowing more than three years to lapse. This is not factually accurate. The plaintiff did sue within three years. The only way the first defendant HH 443 - 25 HC 8115/18 could succeed on prescription would be if the debt were deemed to have fallen due much earlier than May 2016, or if time continued to run despite the 2018 filing. Neither proposition has merit. The Facility Agreement clearly set the due date in May 2016, and the first defendant does not allege an earlier breach or acceleration. When summons was issued in 2018, it interrupted prescription by operation of law. Service of process interrupts the running of prescription under the Prescription Act. Therefore, as against the first defendant, the claim cannot be said to be prescribed. By the time a trial on the merits occurs, the debt would undoubtedly be older than three years, but that is irrelevant. The question is whether it was already prescribed when proceedings were instituted. It was not. Furthermore, there is the factor of acknowledgment of liability. The plaintiff has adduced evidence (and it was noted in MUZOFA J’s judgment) that representatives of the defendant acknowledged the indebtedness in a meeting on 30 May 2017, after the debt had fallen due. In fact, one of the issues identified for trial in the parties’ Joint Pre-Trial Conference Minute is “Whether the Facility Agreement was varied on 30 May 2017”. The plaintiff’s position is that at the May 2017 meeting, the defendants admitted owing the money and discussed giving the plaintiff shares in the company or extending the repayment deadline due to the company’s financial difficulties. If true, such an acknowledgment would constitute an interruption of prescription on that date, in terms of s18 of the Prescription Act, acknowledgment of liability by a debtor before prescription completes causes the period to start afresh. The defendants appear to admit the meeting took place, but dispute its legal effect. They suggest the meeting led to a “variation” or understanding that repayment would be deferred until the company’s fortunes improved which they later characterize as a defence for them, not an acknowledgment. These are matters to be resolved on evidence at trial. For present purposes, however, even if one ignored the 2017 acknowledgment, the claim was timely filed. If one takes the acknowledgment into account, then prescription was interrupted in May 2017 and had not even run a full year by the time of summons in 2018. Either way, the special plea of prescription cannot succeed against the first defendant on the merits of the timeline. (b) Prescription vis-à-vis Second Defendant: The second defendant (Pomelo Trading) stands in a different position procedurally. This entity was not named in the original summons. It was joined by amendment in 2023, roughly eight years after the loan was advanced and about seven years after the original due date. On the face of it, a claim HH 443 - 25 HC 8115/18 initiated in 2023 to recover a debt that fell due in 2016 is well outside the 3-year prescription period. The second defendant’s special plea squarely raises this point. The plaintiff’s response is that the second defendant should not be allowed to hide behind prescription because, in essence, it is responsible for the delay in being sued. The plaintiff contends that Pomelo Trading is, and always was, closely related to Pomelo Mining, so closely that the distinction between the two was blurred in dealings with the plaintiff. The plaintiff believed he was dealing with Pomelo Mining (the first defendant) which was the face of the investment project, even if the paperwork named Pomelo Trading as the “borrower.” All communications, representations, and negotiations were with the same individuals, who at times used the name “Pomelo Mining.” Indeed, the plaintiff initially sued Pomelo Mining in 2018 and Pomelo Mining defended the action on the merits for years, never once pointing out that “you sued the wrong company”. It was only after years of litigation, and after the other technical defences failed, that the defendants raised for the first time the argument that Pomelo Trading and not Pomelo Mining, was the proper debtor. The plaintiff alleges that this was a tactical decision by the defendants to conceal the true identity of the debtor until the prescriptive period against Pomelo Trading had elapsed, then to spring out and claim prescription. In the plaintiff’s view, this amounts to mala fides and fraudulent concealment of a cause of action, which in law can prevent a debtor from relying on prescription. The court finds considerable equity in the plaintiff’s position. It would be fundamentally unjust to allow the second defendant to evade liability by pointing to the time- bar, if indeed the second defendant, through the agency of the first defendant’s directors or officers, deliberately obscured its role and induced the plaintiff to sue the wrong entity initially. The question is whether our law provides a remedy for such a situation. Fortunately, it does. Both Zimbabwean and English law recognize that fraud or deliberate concealment by a debtor can postpone or interrupt the running of prescription (limitation). Under English law, which the parties chose as the substantive law of their contract, statute provides that where any fact relevant to the plaintiff’s right of action has been deliberately concealed by the defendant, the limitation period does not begin to run until the plaintiff has discovered the concealment or could reasonably have discovered it. Fraud by the debtor is treated similarly. This is codified in section 32(1)(b) of the UK Limitation Act 1980. In Zimbabwe, while our Prescription Act [Chapter 8:11] does not contain an identical provision, the general HH 443 - 25 HC 8115/18 principles of prescription in our law informed by Roman-Dutch law, arrive at a comparable result. It has been held that prescription will not run against a creditor who is prevented from acting by the debtor’s own fraud or dolus. For example, where the debtor actively conceals the existence of the debt or the identity of the true debtor (see Mukahlera v Clerk of Parliament & Ors 2005 (2) ZLR 365 (S), which dealt with the knowledge of a cause of action). Moreover, section 16(3) of the Prescription Act implicitly acknowledges that the prescriptive period begins when the cause of action arises and the creditor is able to institute proceedings. If a creditor is ignorant of the identity of the person liable, and such ignorance is not through negligence, our courts have held that prescription does not commence to run until the creditor could reasonably have identified the debtor. This is analogous to the reasoning in Van Staden v Fourie 1989 (3) SA 200 (A) under the South African Prescription Act, which is similar to ours. In the present case, the plaintiff was aware that someone owed him the money. Indeed, Pomelo Mining (first defendant) was the obvious candidate and was sued. But the plaintiff was not aware, until it was raised by the defence much later, that Pomelo Trading (second defendant) would be alleged to be a distinct debtor. By the time this came to light, more than three years had passed. The court is satisfied that the plaintiff did not fail to sue Pomelo Trading due to any negligence or lack of diligence on his part. Rather, he relied on the representations made to him that Pomelo Mining was the responsible company and on Pomelo Mining’s conduct in defending the suit as if it were the proper party. The second defendant was only brought in when the first defendant shifted its stance to claim misjoinder. To allow the second defendant now to say “Aha, you’re too late – time’s up!” would be to permit a manifest injustice. It would encourage exactly the kind of manoeuvre that erodes confidence in the justice system: a debtor hiding behind corporate technicalities to run down the clock on its creditor. Equity will not suffer a wrong without a remedy. In English law, as noted, deliberate concealment by a debtor stops the clock. Special circumstances can prevent a defendant from succeeding on a time-bar if their own conduct kept the plaintiff in the dark – essentially an estoppel against pleading prescription. A debtor who induced the creditor not to sue could be debarred from raising prescription). The plaintiff before us expressly argues that the second defendant “colluded” with the first defendant to conceal its involvement and thus “is estopped from claiming prescription.” I find this argument persuasive on the facts alleged. HH 443 - 25 HC 8115/18 Ultimately, however, I need not rest solely on estoppel or equitable tolling principles. There is a more straightforward legal basis to reject the second defendant’s special plea: the plaintiff’s joinder of the second defendant in 2023 was not the introduction of a brand-new cause of action, but rather a corrective measure relating back to the original claim. The amendment did not raise any fresh claim or new debt. It merely added another party alleged to be liable for the same debt that was already validly claimed in 2018. Our courts have held that where an amendment introduces no new claim but corrects the citation of a party, the plea of prescription will not succeed if the proceedings in respect of that claim were already instituted in time. The general rule is that an amendment relates back to the date of the original process, especially if the amendment is to correctly name the true defendant. In this case, joining Pomelo Trading was, from the plaintiff’s perspective, an act of abundant caution to ensure that the correct debtor is before the court, in light of the first defendant’s contentions. The core cause of action, breach of the May 2015 Facility Agreement and non- payment of the $200,000, remains the same. Pomelo Trading, which is part of the same corporate grouping and represented by the same persons as Pomelo Mining, cannot claim any legitimate prejudice from being added now, except the loss of an unmeritorious technical escape. It has been aware of the claim from inception. Indeed, Pomelo Trading is the entity named in the contract itself and shares an address and management with the first defendant. In these circumstances, I conclude that the initiation of the action in 2018 interrupted prescription in respect of the debt, and that interruption inured for the benefit of the claim as now directed against the second defendant as well. To hold otherwise would exalt form over substance. In summary, the court finds that the special plea of prescription fails on multiple, independent grounds. The plaintiff’s claim was filed within the applicable prescriptive period in 2018. Prescription was, in any event, interrupted by the defendants’ acknowledgment of liability in 2017 (a factual issue to be confirmed at trial, but provisionally in plaintiff’s favour for current purposes). The first defendant’s attempt to invoke prescription is thus devoid of merit. The second defendant’s prescription plea is defeated by the doctrines of interruption, estoppel due to concealment, and the relation-back of the amendment. At the very least, the second defendant’s conduct places it in the category of a debtor who cannot in good conscience be allowed to rely on a time-bar it helped to bring about. I therefore hold that the plaintiff’s claim is not prescribed and the special plea is liable to be dismissed. (2) The First Defendant’s Exception (Misjoinder / No Cause of Action) HH 443 - 25 HC 8115/18 The first defendant’s exception asserts that the plaintiff’s declaration does not disclose a cause of action against Pomelo Mining (the first defendant) because, according to the defendants, the agreement was with Pomelo Trading and not with Pomelo Mining. In substance, this is the first defendant’s argument that it is the “wrong party” before the court. This contention was also framed as a special plea in bar by the first defendant. The court will address it as such – essentially a plea of misjoinder or non-liability – as well as from the perspective of the procedural propriety of raising it at this juncture. Procedural propriety: As detailed earlier, the first defendant’s exception and special plea on misjoinder were raised very late in the day, several years after the first defendant had filed a plea to the merits. Rule 42(2) of the High Court Rules, 2021 is clear that a special plea or exception must be filed as a separate pleading before or at the same time as the plea to the merits. The rationale is plain: objections to jurisdiction, misjoinder, prescription, etc., should be flagged early so that they can be resolved without unnecessary waste of time and costs. A defendant is not permitted to “lie low” on a known technical defence, conduct a full defence on the merits, and then years later ambush the plaintiff with a dilatory plea. In Doelcam (Pvt) Ltd v Pichanick 1999 (1) ZLR 390 (H), it was held that a special plea “must be taken in the pleadings and must be supported by evidence”. In other words, it cannot be raised for the first time in heads of argument or by ambush. There is a formal procedure to be followed. Likewise, the Supreme Court in Allied Bank Ltd v Dengu & Anor SC 52/16 acknowledged that while a special plea (even of prescription) can in theory be raised at any time before judgment, this is subject to stringent conditions. Those conditions, drawn from the old South African authority of Western Assurance Co. v Caldwell’s Trustees 1918 AD 262, require the defendant to satisfy the court on oath that the ground of the special plea either arose after the close of pleadings or, if it existed before, that the defendant was not aware of it despite acting diligently. Voet (44,1,6) states that even a dilatory exception after litis contestatio must meet these special circumstances, and Carpzovius (Part 1, cons. 6, def. 6 par. 4) concurred that a defendant must show he only learned of the defence later despite earlier ignorance. (This was cited in Western Assurance Co v Caldwell’s Trustees 1918 Ad 262). Absent such proof, a late special plea should not be entertained. In the present case, the first defendant has not even attempted to meet these requirements. There is no affidavit or evidence from the first defendant explaining why it did not raise the “wrong party” argument back in 2018 or 2019 when it filed its original plea. It is beyond dispute that the first defendant knew of the Facility Agreement’s contents from the HH 443 - 25 HC 8115/18 start. The contract was presumably in the first defendant’s possession and indeed is part of the record. The very first paragraph of the plaintiff’s declaration explicitly pleads that the loan agreement was with Pomelo Mining (Private) Ltd (the first defendant). If Pomelo Mining believed that statement was incorrect and that Pomelo Trading was the true contracting party, one would have expected an immediate plea in abatement or at least a mention in the plea. Instead, the first defendant filed a plea on the merits, effectively representing that it was the proper defendant but denying liability on other grounds. Years went by. It was not until the brink of the special plea hearing in late 2022 (and after MUZOFA J’s ruling had neutralized the prescription argument) that the first defendant pivoted to the stance that “we are not liable because the contract is with someone else.” This sequence of conduct smacks of a tactical afterthought. The misjoinder point was plainly available from day one. It “was established before litis contestatio” – and the first defendant offers no explanation for its failure to plead it earlier. The Western Assurance test, endorsed in Allied Bank, is clearly not satisfied. On this ground alone, the first defendant’s special plea of misjoinder ought to be dismissed. As MUZOFA J noted in the related cases, a defendant who has already “answered to the claim” cannot “reasonably be said to only have noticed the issue of citation at the stage of evidence during trial.” The first defendant here “also fails on this aspect”. Additionally, the first defendant’s exception on the same point is procedurally irregular. By filing a plea and engaging in the matter for years, the first defendant has waived the right to except that the declaration discloses no cause of action against it. If the defendant truly believed the summons and declaration disclosed “no cause,” it would not have been able to plead over as it did. The Supreme Court in Van Brooker & Pearce v Mudhanda (SC 5/18) observed that the determination of prescription and by analogy other special defences like misjoinder is a question of fact to be decided on evidence, not a mere legal question apparent ex facie the pleading. Here, whether Pomelo Mining is liable or not involves factual issues (what role it played in the transaction, how the entities related, etc.) – it is not a pure question of law apparent on the declaration’s face. The declaration clearly alleges that Pomelo Mining received the loan and failed to repay. On those allegations, a cause of action is disclosed against Pomelo Mining. The first defendant’s contention is that those allegations are factually wrong – a matter of evidence, not a basis for exception. In short, the exception lacks merit because it is trying to introduce a factual defence, alleged wrong party under the guise of a pleading defect. HH 443 - 25 HC 8115/18 For these reasons, the court holds that the first defendant’s belated special plea and exception on misjoinder are not properly before the court. They were filed out of time, without leave, in contravention of the mandatory rules. No condonation was sought or granted for this irregular step. In line with established authority, such an irregular or invalid pleading cannot be entertained and is liable to be struck out or dismissed. The plaintiff raised this point in limine in argument, and rightly so. On this procedural basis alone, the first defendant’s exception and related special plea should be dismissed. Even if I were to consider the merits of the first defendant’s contention for the sake of completeness, the result would be the same. The crux of the argument is that the plaintiff sued Pomelo Mining when he should have sued Pomelo Trading, and therefore Pomelo Mining is not liable. The difficulty with this argument is two-fold. First, it is not at all clear as a matter of fact that Pomelo Mining was not involved in the transaction. The plaintiff avers that Pomelo Mining held itself out as the entity behind the deal, and that all discussions, including the alleged May 2017 variation and offers of shares, were made by the principals of Pomelo Mining. The companies Pomelo Mining and Pomelo Trading appear to have a close relationship. The record suggests they share the same business address in Borrowdale, Harare, and presumably the same directing mind. It is conceivable that Pomelo Mining was effectively an alter ego or trading name for the same enterprise that executed the loan. These are matters to be proved at trial. It is premature to declare that Pomelo Mining is “the wrong party” when evidence might show it benefitted from or even informally assumed the obligations of the borrower. The first defendant, in its own earlier plea, never denied receiving the money. Rather, it seemed to deny the obligation to repay, claiming financial distress and that the plaintiff agreed to wait (which implies Pomelo Mining acknowledged owing the money, at least initially). Thus, on the merits, the line between the two Pomelo entities may be thinner than the defendants now suggest. Secondly, even assuming Pomelo Trading is a distinct legal person and was strictly the contracting party, the appropriate remedy was to join that party, which the plaintiff has done, rather than to dismiss the claim against Pomelo Mining outright. Misjoinder or non- joinder is not necessarily fatal to a claim. The rules allow the court to order joinder of the correct party at any stage of the proceedings (Rule 32 of the High Court Rules, 2021). The plaintiff, recognizing a possible misjoinder, obtained exactly such a joinder order. The situation now is that both the purported debtor (Pomelo Trading) and the originally sued entity (Pomelo Mining) are before the court. In the court’s view, it would be premature to HH 443 - 25 HC 8115/18 dismiss Pomelo Mining from the matter on exception. Depending on the evidence, it may yet transpire that Pomelo Mining was so closely involved that it incurred liability – for example, if it is proven that Pomelo Mining and Pomelo Trading were used interchangeably in the contractual dealings, or that Pomelo Mining guaranteed Pomelo Trading’s obligations, or perhaps that Pomelo Mining unjustly benefited from the funds. The plaintiff’s pleadings, as amended, leave room for such possibilities, and our law would allow recovery in such scenarios under doctrines like the Turquand rule (if representations were made about authority) or even piercing the corporate veil in cases of abuse. At the very least, the presence of Pomelo Mining in the suit ensures that complete relief can be granted without further delay, should the court find at trial that one or both defendants are liable. If, on the other hand, the evidence clearly shows Pomelo Mining truly had nothing to do with the loan, then the court can absolve Pomelo Mining from liability at trial. Dismissing Pomelo Mining at the exception stage would be a draconian step, unwarranted when the pleadings, read charitably, do allege its involvement in the breach. There is also the practical consideration of avoiding a potential nullity. The first defendant argued that citing the wrong entity is a nullity that cannot be corrected. It relied on the principle that suing a non-existent or entirely wrong party renders the proceedings void ab initio referring to cases like Veritas v ZEC & Ors SC 103/20 and others. However, those cases are distinguishable. Here, Pomelo Mining is not a non-existent entity. It is a real company. The plaintiff did not sue a fictitious name. He sued an actual company that he believed to be liable, and that company appeared and defended the suit. Only later did it claim “I am not the one.” This is a far cry from, say, suing “ABC Ltd” which doesn’t exist. The correct approach in such misnomer situations is elucidated in Clan Transport Co. (Pvt) Ltd v Pamhenyayi & Anor 1999 (1) ZLR 520 (H). If the defendant is misnamed but there is enough detail to identify the intended target, the summons is not a nullity and can be amended. In this matter, the summons identified “Pomelo Mining (Private) Limited, 4 Montclair Close, Borrowdale, Harare” – which is a real company at a real address. That company understood it was the one being sued. It entered appearance and pleaded. In fact, if Pomelo Mining truly had no connection whatsoever to the debt, one wonders why it engaged in the litigation at all instead of simply saying “you have the wrong company” at the outset. Its conduct rather suggests that it considered itself – at least initially – the proper defendant. Only when cornered by the merits did it change tack. In these circumstances, I am not prepared to hold the proceedings a nullity. The amendment to join Pomelo Trading cured HH 443 - 25 HC 8115/18 whatever defect may have existed. This court, being a court of substantial justice, prefers to have all potentially liable parties before it and to decide the matter on the evidence rather than on hyper-technical pleading points. For the above reasons, the first defendant’s exception is dismissed on its merits as well. The plaintiff’s declaration, read with the amended summons, does disclose a cause of action. The plaintiff asserts he lent money which has not been repaid, and he sets out the essential terms of the loan and the breach. Whether the first defendant is ultimately proved to be the obligor is a matter of proof, not pleading. The declaration cannot be faulted for alleging Pomelo Mining was the debtor. That was the plaintiff’s honestly held contention, and it is a factual allegation to be tested. It is certainly not so implausible or insufficient as to be excipiable. An exception cannot succeed unless the pleading is so vague or so lacking in averments that it fails to state a cause of action at all. That is not the case here. Resultantly, the first defendant’s special plea of misjoinder and its exception are both dismissed. For completeness, the court confirms the effect of the governing law clause in the Facility Agreement. The agreement provides that it is governed by the law of England and Wales. This clause is valid and binding. Accordingly, questions of interpretation of the contract, the substantive rights and obligations of the parties, and remedies for breach will be determined in accordance with English law to the extent evidence of any differences from our law is led. However, as discussed earlier, procedural matters including the prescription of the claim are governed by the law of Zimbabwe as the lex fori. In practical terms, this means that while the plaintiff may need to prove his claim in a manner consistent with English contract law, for example, proving breach and loss under English principles, the issue of whether the claim was brought within the permissible time was addressed under Zimbabwe’s Prescription Act and the result was the same under English limitation law in any event. The choice of English law also does not oust this Court’s jurisdiction. The jurisdiction clause was non- exclusive, and the defendants, by defending the matter here, submitted to this Court’s jurisdiction. The court emphasizes that nothing in this judgment should be taken as relieving the plaintiff from proving his case on the merits under the applicable substantive law at trial. Today’s decision purely determines that the case may proceed to that stage, as the technical objections have been resolved in the plaintiff’s favour. The general rule is that costs follow the result. The defendants have been unsuccessful in their special plea and exception. The plaintiff asked in his papers for costs on the legal HH 443 - 25 HC 8115/18 practitioner and client scale, alleging that the defendants’ pleas were tactical and abusive. There is some justification for that view. The defendants waited an inordinate period and only raised these points after substantial proceedings had taken place, necessitating an amendment and a separate hearing. However, the court also recognizes that a defendant is entitled to raise prescription or misjoinder if genuinely believed to be applicable, and punitive costs are reserved for clearly frivolous or vexatious defences. While I find the defendants’ approach to have been largely without merit, I am not prepared to say it was malicious to the degree warranting attorney-client costs. An award of costs on the ordinary scale will adequately compensate the plaintiff for the expense of opposing these preliminary skirmishes. It is also appropriate that the two defendants, who acted in concert in raising these failed pleas, indeed represented by the same counsel, bear the costs jointly and severally. Disposition In the result, it is ordered as follows; 1. Both defendants’ exception and special pleas are hereby dismissed. 2. The defendants shall bear the costs of these preliminary proceedings, jointly and severally, the one paying the other to be absolved. MAMBARA J: ………………………………………………… Muza Nyapadi, 1st and 2nd defendants legal practitioners Manokore Attorneys, plaintiff’s legal practitioners for the plaintiff