Special plea
A special plea does not raise a defence on the merits of the case but sets up some special defence which has the objective either to –
– delay the proceedings (dilatory plea); or
– object to the jurisdiction of the court (declinatory plea); or
– quash the action altogether (peremptory plea).
The pleading is given the heading ‘Special Plea’ and the grounds to be relied upon is set out in the body of the plea.
There are essential differences between a special plea and an exception. Exception is appropriate when the defect in the particulars of claim appears ex facie (on the face thereof). The excipient cannot introduce new facts or evidence of the defect. Special plea is appropriate when it is necessary to place facts before the court to show that there is a defect in the particulars of claim. The defendant can introduce new facts or evidence of the defect. Exceptions are dealt with in detail later.
Special pleas are also distinguished from objections. Objections are taken by way of application before the trial.
The following are some special pleas that can be raised:
- Prescription: a peremptory plea that renders the claim permanently unenforceable.
- Jurisdiction: a declinatory plea that quashes the action as far as the court is concerned, but the merits of the case may be tried by another court (with jurisdiction).
- Lis pendens: a dilatory plea that delays the proceedings. Where a defendant contends that a suit between the parties on the same cause of action is pending in another court.
- Locus standi: a peremptory plea that quashes the action altogether. A person wishing to institute or defend legal proceedings must have a direct and substantial interest in the right which is the subject matter of the litigation and the outcome of such litigation. This may also be dealt with on exception.
- res judicata: a peremptory plea that quashes the action altogether. It is raised as defence to a claim that was already disposed of by a judgment in a prior action between the same parties concerning the same subject matter and the same cause of action.
- Non-joinder or misjoinder: a dilatory plea that delays the proceedings. If evidence is required that another person should have been joined as plaintiff or defendant, or some party who has been joined ought not have been. If the non-joinder or misjoinder is apparent ex facie the pleadings the objection may be taken by way of exception.
- Arbitration: a dilatory plea that delays the proceedings. When arbitration is a condition in the terms of a contract. The defendant must state that he agreeable to the dispute being referred to arbitration. A matter can be brought on application in terms of the Arbitration Act.
This list of special pleas is not exhaustive but are most commonly raised.
For more go to Notes on action (trial) proceedings
