Arenel
Sweets and Biscuits (Pvt) Ltd are one of the largest manufacturers of
sweets and biscuits in Zimbabwe. Their wide selection of sweets and
biscuits are found in most major chain stores countrywide.
Established in 1946, in a small factory in Bulawayo, the plaintiff
became popular with their wide range of products including suckers,
sugar sticks and apricot balls.
The
defendant, Alexander Forbes Risk Services Zimbabwe, is a leading
insurance broker delivering professional insurance and risk
management to corporate, public, and private institutions around the
country. The defendant is also in the business of insurance broking.
In broad terms, insurance brokers act as intermediaries between
clients, who can be either individuals or commercial businesses and
organisations, and insurance companies. Insurance brokers are
expected to use their in-depth knowledge of risks and the insurance
market to find and arrange suitable insurance policies and arrange
cover. They act in the best interests of their clients and offer
products from more than one insurer to ensure that their clients get
the best deal.
The
plaintiff instituted proceedings against the defendant for the
following:-
(a)
Payment of the sum of US$62,972= being the difference less the
ex-gratia
payment of US$15,743=.
(b)
Interest a temporae
morae.
(c)
Costs on a punitive scale.
The
defendant disputes the plaintiff's claims and has filed a special
plea in bar and what it terms the
defendant's notice of exception and application to strike out.
Before I deal with the merits of the application for the exception
and special plea in bar I propose to set out the factual background
of the claims against the defendant.
Factual
background
Sometime
in the year 2011, the plaintiff approached the defendant requesting
the defendant to effect, on its behalf, through insurers, an Export
Insurance Policy. The defendant, being the insurance broker, engaged
Credit Insurance Zimbabwe Limited, commonly known as CREDSURE to
effect the insurance policy. Following discussions between the
defendant (broker) and the insurer (Credsure), the final policy
document was prepared, but could only become operative once a valid
Credit Limit Form CU30 Forms (Application for Credit Limit), in the
name of the foreign buyer had been approved by the insurer. The
plaintiff, through the defendant (broker), duly filled in the CU30
Forms – Application for Credit Limit and paid the initial deposit
premium of US$5,061= through the defendant. The plaintiff's credit
insurance cover was in respect of a Zambian based company known as
ZAMCON TRADING. For some reason, Credsure never approved the Credit
Cover between the plaintiff and ZAMCON Trading of Zambia, in spite of
the fact that the plaintiff was effecting payment of premiums towards
the Export Credit Insurance Cover through the defendant.
The
defendant did not notify the plaintiff that the Credit Cover was not
effected, and, on that basis, the plaintiff proceeded to export and
supply goods to the customer in the belief that there was an Export
Credit Cover. ZAMCON subsequently defaulted in paying the sum of
US$78,715= for goods supplied at its own instance. The plaintiff
turned to the insurer, through the broker, the defendant, and was
advised that the insurance cover had not been effected. By virtue of
the relationship between the defendant and the insurer, an ex-gratia
payment of US$15,743= was paid to the plaintiff by the insurer. The
plaintiff contends that through negligent conduct of the defendant,
an Export Credit Cover was not effected for ZAMCON Trading on behalf
of the plaintiff, despite the defendant receiving premiums for onward
transmission to the insurer. The plaintiff avers that the defendant
misrepresented that an Export Credit Cover had been duly effected.
The plaintiff claims the difference between the ex-gratia payment of
US$15,743= and the sum of US$78,715=
for goods supplied to ZAMCON Trading.
The
Exception
The
defendant filed a special plea in bar in the following terms:
“1.
Plaintiff pleads that it engaged the defendant to procure Export
Credit Insurance Policy with Credit Insurance Zimbabwe Limited
(“CREDSURE”) in the year 2011.
2.
Plaintiff further alleges that the defendant failed to procure the
Export Credit Insurance for the plaintiff in consequence of which
CREDSURE refused to pay.
3.
The plaintiff's cause of action is based on the alleged failure by
the defendant to procure Export Credit Insurance for the plaintiff in
2011 and the plaintiff was advised, in any event, by CREDSURE of this
position on 12th
April 2012 as reflected on annexure “A” hereto.
4.
The plaintiff's summons was only served on the defendant on 17th
August 2015 more than (3) years after the alleged cause of action
arose.
5.
The plaintiff's claim has accordingly prescribed in accordance with
the Prescription Act [Chapter 8:11].”
On
the same date the special plea in bar was filed, the defendant also
filed a document headed 'Defendant's Notice of Exception and
Application to Strike out.' The defendant makes the following
averments in this document:
“…,.
Defendant hereby excepts to and applies to strike out the plaintiff's
claim as set out in the summons and declaration on the basis that, ex
facie,
the claim does not disclose a valid cause of action against the
defendant, is bad in law, argumentative and is vague and
embarrassing, more particularly in that:-
1.
The plaintiff's claims do not disclose whether the claim is in
contract or in delict.
2.
If the claim is in contract, plaintiff has not pleaded the essential
averments of the alleged contract between the parties which the
defendant could have breached it.
3.
If the claim is in delict, the plaintiff's claim is bad in law in
that it does not contain the essential averments necessary to sustain
a delict. Without derogating from the generality thereof, the
plaintiff has merely averred that the defendant was negligent without
seeking out the particulars of the alleged negligence on the part of
the defendant. Without alleging the particulars of negligence, the
plaintiff's claim is bad in law and the defendant is, in my event,
embarrassed as to what it is that is alleged against it as the basis
of wrongfulness.
4.
Further, and in any event, the plaintiff's claim is vague and
embarrassing and contradictory in that the plaintiff alleges that
defendant was “negligent” in not procuring the insurance cover
and in the same breath and without pleading in the alternative
alleges and relies on an alleged 'misrepresentation' to the
plaintiff that the insurance cover had been procured.
5.
Further to the aforegoing, and without in any way derogating from the
foregoing, paragraph 12 and 13 of the plaintiff's declaration are
argumentative and express the plaintiff's 'feelings' and do not
amount to pleading. Defendant accordingly prays for the striking out
of these paragraphs.
Wherefore,
defendant prays that the exception and application to strike out be
upheld, and the plaintiff's claims against the defendant be
dismissed with costs.”
In
response to the defendant's special plea, the plaintiff files a
replication in the following terms:-
“3.
…, serve to say, the claim against defendant has not prescribed, in
that after Credsure repudiated the claim, defendant advised plaintiff
that it was engaging Credsure to try and settle and resolve the
dispute…,. Plaintiff was and has been of the view that defendant
was trying to resolve the issue.
3.1
To the extent that defendant went as far as trying to engage a
neutral party to engage in arbitration so as to try to resolve the
dispute this was after the 12th
April 2012, the defendant advised plaintiff that it had engaged Mr
Unity Sakhe of Kantor & Immerman to try and settle the issue.
3.2
Plaintiff was and or has always been of the view that defendant was
engaging Credsure to try and resolve this issue. Plaintiff only
became aware that defendant was not resolving anything when it
received the letter dated 8th
April 2015.
3.3
Hence, plaintiff became aware of its cause of action against
defendant after receiving the letter dated 8th
April 2015 from the defendant thus the matter has not prescribed.”
In
respect of the defendant's notice of exception and application to
strike out, the plaintiff replies as follows:
“1….,
the Honourable Court's Rules, as published in RGN 1047 of 1971, and
as subsequently amended, do not recognize a pleading called a notice
of exception and applicationt to
strike out, thus the pleading filed by defendant is not in terms of
the Rules.
2.
In terms of Order 21 of the Honourable Court's Rules, an exception
and an application to strike out are separate pleadings with
different essential elements, and the format for each pleading is
provided for in Form 12. The mixing of the two pleadings and
creating a composite pleading is not recognized by the Court's
Rules.
3.
Defendant is abusing court process and delaying the proceedings as a
complainant by defendant could be rectified by a complaint letter in
terms of Rule 40, which is cheaper and faster.
4.
Defendant's prayer is thus a vague and embarrassing pleading not
recognized by law, which is a dismissal of plaintiff's claim in
that if it is an application to strike out it does not have the
effect of deciding on a matter for an applicant as outlined in
defendant's pleading…,.” (sic)
