MATHONSI J: The plaintiff sued the first
defendant, who is the excipient in this matter, and 2 police officers, the
second and third defendants, as well as the co-ministers of Home Affairs, for
damages in the sum of US$150 000-00 arising out of her arrest and detention on
charges under the Children's Act [Cap 5:06]
In her declaration, the plaintiff averred that on an unknown date, the first
defendant made a false report or caused a false report to be made to
Marlborough Police to the effect that the plaintiff had neglected her minor
daughters in breach of the law. As a result of that false report the
plaintiff was arrested and subsequently made court appearances but the state
subsequently withdrew the charges levelled against her. She then prayed
for damages aforesaid, arising out of the unlawful deprivation of liberty,
pain, suffering, contumelia and humiliation.
There is
nothing in the record to suggest that any complaint was made by the first
defendant against that pleading as provided for in r 140 (1) (b) of the High
Court of Zimbabwe Rules, 1971. However, the first defendant has excepted
to the summons as follows:
“The first defendant excepts to the
plaintiff's summons, as read with her particulars as being wrong and bad in law
in that it does not disclose a valid cause of action. More particularly
that:
1. The
summons does not disclose a true and concise statement of the nature, extent
and grounds of the cause of action as required by law; and
2.
Plaintiff's further particulars set out that the cause of action is that of a
'false, wrongful and unlawful report', which cause of action does not exist in
law.”
Ms Drury who appeared for the
first defendant, appeared to abandon the first ground of attack relating to the
violation of r 11 (c) in her address to the court as she placed emphasis upon
the second ground of exception. I must mention that a failure to include
a statement of the nature, extent and grounds of the cause of action and of the
relief sought on the face of the summons is an omission that is easily curable
by an amendment of that summons. Ms Drury sought an
outright dismissal of the plaintiff's claim on the basis that the pleading is
bad at law as it does not disclose a cause of action. In her view the
plaintiff's claim “is totally absent”.
It was submitted that the making of a
report to the police, whether false or otherwise, does not cause any harm or
prejudice to the reported person. For that reason, the first defendant
cannot be expected to defend himself against a non-existent cause of
action. Reliance for that proposition was placed on the words of MAKARAU
JP (as she then was) in Chifamba v Mutasa & Ors HH16/08
(unreported) that;
“The purpose of pleadings is not only to
inform the other party in concise terms of the precise nature of the claim they
have to meet but pleadings also serve to identify the branch of law under which
the claim has been brought. Different branches of the law require
different matters to be specifically pleaded for a claim to be sustainable
under that action----. This may appear trite but a number of matters
coming before the courts seem to indicate that legal practitioners have
abandoned the need to plead a cause of action by making the necessary averments
to sustain such an action ----. Legal practitioners are urged to read on
the law before putting pen to paper to draft pleadings in any matter so that
what they plead is what the law requires their clients to prove to sustain the
remedy they seek----. Litigation in the High Court is serious business and the
standard of pleadings in the court must reflect such”
Ms Mandaza for the plaintiff
strongly contested the claim that a cause of action is non existent. She
maintained that the plaintiff's cause is sufficiently set out as being a false
report made to the police which led to her unlawful arrest and deprivation of
liberty. She submitted that the plaintiff's claim is based on the delict of
malicious prosecution, or is it malicious report, which is enforceable at law.
Unfortunately, malicious prosecution is not pleaded in the plaintiff's summons
and declaration, which mentions only a false report. The essence of any claims
is located in the pleadings whose function is to inform the parties of the
points of issue between on them to enable them to know in advance, what case
they have to meet, to assist the court define the limits of the action and to
place the issues on record: Matewa v Zimbabwe Electricity
Transmission and Distribution Company HH304/13 at p2.
It has however been stated that the court
should not look at a pleading with a magnifying glass of too high power because
doing so would almost certainly show flaws in all pleadings: Kahn v Stuart
1942 CPD 386 at p391.
When an exception is taken, the court has
a duty to see if there is a point of law to be decided which will dispose of
the case in whole or in part. If not, whether there is any embarrassment
which cannot be cured by a request for further particulars. Where neither of
the 2 exist, the exception must be dismissed.
Regarding an exception on the basis that a
pleading does not disclose
a
cause of action, BEADLE AJ (as he then was) made the important point in Mc
Kelvey v Cavan N.O. 1980 (4) SA525 (Z) that:
“It is a first principle in dealing with
matters of exception that if evidence can be led which can disclose a cause of
action alleged in the pleading, that particular pleading is only excipiable on
the basis that no possible evidence led on the pleading can disclose a cause of
action.”
See also Mnangagwa
v Alpha Media Holdings (Pvt) Ltd & Anor HH225/13.
It is true that the correct cause of
action in a matter of this nature is the delict of malicious prosecution or
report. The plaintiff should have pleaded that the first defendant's
report to the police that she was neglecting her children was malicious.
She only pleaded that the report was false. While it is important
that a pleading must identify the branch of the law under which the claim is
brought; the averment that the report was false, although falling short, does
remove any potential embarrassment on the part of the first defendant. It
equips him sufficiently with what case he has to meet. It is a defect
that can certainly be cured by a minor amendment.
More importantly, the leading of evidence
on the report can also assist in disclosing the very nature of the cause of
action. I am therefore of the view that the plaintiff's summons and
declaration are not incurably bad. I have already stated that there is
nothing in the papers to suggest that the plaintiff's attention was drawn to
defects as provided for in r 140(1) (b). That would have avoided this
litigation. For that reason the first defendant is not entitled to an
order for costs which should, at this stage remain in the cause.
In the result, it is ordered that:
1.
The first defendant's exception is hereby dismissed.
2.
The plaintiff is granted leave to;
(a)
amend the face of her summons to incorporate a true and concise statement of
the nature, extent and grounds of the cause of action and of the relief or
remedies sought in the action as provided for in r 11 (c) of the High Court of
Zimbabwe Rules, 1971.
(b)
amend paragraph 7 of her declaration to include the necessary averments of the
malicious nature of the report or prosecution.
3.
The costs shall be in the main cause.
Muzangaza, Mandaza & Tomana, plaintiff's legal practitioners
Honey
& Blackenberg, 1st defendant's legal practitioners
