A Special Plea can be defined as “a legal objection to some aspect of the plaintiff’s claim” [See Pete, S et al Civil Procedure A Practical Guide 3rd Edition (Oxford University Press Southern Africa (Pty) Ltd 2017) 234].
It attempts to eliminate the plaintiff’s case before the merits of the plaintiff’s case are even considered.
Types of Speal Plea(s)
Special plea of arbitration.
Where there is a contract in place between the parties and the contact contain a clause of arbitration, that should a dispute arise, the dispute must firstly be referred to arbitration before court.
Where the contract is in place and the party referred the matter to court before arbitration, the other party can raise a special plea.
Special plea of lis pendens.
This special plea is raised where another action is already pending between the same parties and based on the same cause of action/ set of facts.
Special plea of premature summons.
When a summons is issued before the cause of action is complete, the defendant may raise a special plea objecting to the premature summons.
Special plea of prescription.
Every cause of action must be prosecuted within a certain period of time (presently 3 years), failing which it will prescribe.
Should the matter prescribe, the defendant will not be legally liable, even if all the plaintiff’s allegations about the defendant’s conduct are said to be true.
Special plea of misjoinder or non-joinder.
A special plea of misjoinder may be raised where a party who should not have been joined to an action, has been joined.
A special plea of non-joinder may be raised where a party who should have been joined in an action, has not been joined to the action.
Special plea of res judicata.
This special plea is raised where the dispute between the parties has already been adjudicated (decided) on.
In simple, the plaintiff’s claim has been heard previously by a competent court that has given a final judgment in the matter.
Special plea of jurisdiction.
This special plea is raised where the plaintiff has brought an action in a court that lacks jurisdiction.
Special plea of non locus standi in judicio.
This special plea is raised where the plaintiff has brought an action, but lacks the required locus standi.
