Special Pleas in South Africa: A Powerful Procedural Defence Explained

Not every defence in litigation goes to the merits of a claim. In South African civil procedure, a special plea allows a defendant to raise a preliminary legal obstacle that, if successful, can dispose of a claim entirely, without engaging with the substance of the dispute.

At Barter McKellar, we regularly advise clients on when a special plea is appropriate, when it is strategically advantageous and when it may unnecessarily complicate proceedings.

This article explains what a special plea is, when it is relevant and how it is used effectively in South African litigation.

What Is a Special Plea?

A special plea is a pleading in which a defendant raises a point of law that does not address the merits of the plaintiff’s claim but contends that the claim is not legally enforceable.

Special pleas are governed by:

• Rule 22 of the Uniform Rules of Court (High Court); and

• Rule 17 of the Magistrates’ Courts Rules.

If upheld, a special plea may:

• Dispose of the entire action; or

• Narrow the issues significantly before trial.

How a Special Plea Differs from a Plea on the Merits

• A plea on the merits answers the factual allegations and disputes liability.

• A special plea says, in effect:
  “Even if everything you allege is true, you still have no enforceable claim.”

Because of this, special pleas are often determined before evidence on the merits is heard.

Common Types of Special Pleas in South Africa

1. Prescription

Arguing that the claim has prescribed under the Prescription Act 68 of 1969. This is one of the most frequently raised and successful special pleas in commercial litigation.

2. Lack of Jurisdiction

Contending that the court lacks jurisdiction because of:

• Geographic limits;

• Subject-matter restrictions; or

• Contractual jurisdiction clauses.

3. Lis Pendens

Alleging that the same dispute between the same parties is already pending before another court.

4. Res Judicata

Arguing that the dispute has already been finally determined by a competent court.

5. Lack of Locus Standi

Contending that the plaintiff lacks the legal standing or authority to bring the claim.

6. Arbitration Clause / Alternative Dispute Resolution

Relying on a contractual provision requiring disputes to be resolved by arbitration or mediation instead of litigation.

When Is a Special Plea Appropriate?

At Barter McKellar, we typically recommend considering a special plea where:

• There is a clear legal bar to the claim;

• The issue can be decided without oral evidence;

• Early resolution will save costs and time;

• The special plea, if upheld, will be dispositive or materially narrowing.

Special pleas are particularly relevant in:

• Commercial and contractual disputes

• Shareholder and partnership litigation

• Debt and damages claims

• Regulatory and compliance-related matters

• High-value litigation where early risk elimination is critical

Strategic Risks of Special Pleas

Special pleas are powerful, but they carry risk.

Courts have cautioned that:

• Over-technical special pleas can delay proceedings;

• Poorly founded special pleas may attract adverse costs orders;

• Some issues are better resolved at trial, not upfront.

In addition, raising a special plea often requires the defendant to:

• Plead certain facts; and

• Accept the plaintiff’s pleaded facts for purposes of the point of law.

This requires careful drafting and strategic foresight.

Procedure: How Special Pleas Are Dealt With

Once a special plea is delivered, the plaintiff may:

• Replicate to the special plea; and

• Request that it be adjudicated separately from the merits.

Courts have a discretion to:

• Hear the special plea first; or

• Defer it to be determined together with the main action.

The decision often turns on efficiency, fairness and cost.

Special Pleas vs Exceptions and Applications

It is important not to confuse a special plea with other procedural tools:

• Exception: attacks a defective pleading

• Special plea: raises a substantive legal defence

• Application to dismiss / summary judgment: seeks early final relief on the merits

Choosing the correct mechanism is essential, using the wrong one can undermine an otherwise strong defence.

A Barter McKellar Perspective on Special Pleas

At Barter McKellar, we approach special pleas as strategic instruments, not default responses.

Before advising a client to raise a special plea, we assess:

• Whether the defence is legally sound and clearly pleaded;

• The likelihood of early success;

• Cost implications and timing;

• Whether the special plea strengthens or weakens the overall litigation posture.

Our focus is always on commercially sensible outcomes, not procedural formalism.

Conclusion

Special pleas remain a cornerstone of South African civil procedure. When properly deployed, they can end litigation early or significantly narrow the issues. When misused, they can increase costs and delay resolution.

If you are considering raising a special plea or are faced with one, early, strategic advice is essential.

Need Advice on Procedural Defences?

Barter McKellar advises corporates, directors and high-net-worth clients on complex commercial litigation and procedural strategy across South Africa.

Contact us to assess whether a special plea is appropriate in your matter or how best to respond if one has been raised against you.