The
defendant, who is the excipient in this matter, is an incorporation
charged with the transmission and distribution of electricity in this
country it being a subsidiary of ZESA Holdings Limited. The plaintiff
is a commercial farmer performing her trade at Subdivision 1 of
Dagbreek Farm in Nyazura where she is engaged in the growing of
tobacco and sugar beans.
The
plaintiff sued out a summons out of this court against the defendant
for payment of US$500,000= for loss of 30 hectares of tobacco crop
and 20 hectares of sugar beans crop as well as US$200,000= being
damages for consequential loss together with interest thereon and
costs of suit. In her declaration, the plaintiff averred that about
October 2009 the defendant wrongfully and unlawfully confiscated
electrical equipment at her farm in the form of meter boxes, cables,
MCBs and other electrical gadgets. She averred, further, that in
January 2010 and following an investigation into the circumstances of
the removal of the electrical equipment, the defendant undertook to
reinstate electricity at the plaintiff's farm upon a realisation
that the plaintiff required it to irrigate her 30 hectares of tobacco
and 20 hectares of sugar beans. The plaintiff averred that the
defendant advised her to continue with her activities as an instant
installation of power was being undertaken. However, the defendant
disregarded its obligation to install electricity which was wrongful
as a result of which her tobacco and sugar beans crops wilted due to
moisture stress resulting in loss. In paragraph 9 of the declaration,
the plaintiff specifically averred that:
“9.
Defendant's conduct was wrongful and unlawful and resulted in
serious loss to the plaintiff.”
She
therefore craved for compensation aforesaid. The defendant excepted
to the plaintiff's summons as follows:
“The
defendant enters an exception to the plaintiff's summons based on
the following grounds:
1.
The summons and declaration served on it does (sic) not state a true
and concise statement of the nature, extent and grounds of the cause
of action, more specifically, in that it omits an essential element
of the cause of action. The summons does not specify whether the
claim arises from a contractual obligation or delictual or any other
basis on the part of (the) defendant.
2.
(The) defendant therefore prays for a dismissal of the plaintiff's
claim on the basis that the summons does not disclose a cause of
action.”
Counsel
for the defendant submitted that the plaintiff's summons does not
disclose a cause of action as it does not specify whether the claim
arises from a contractual obligation or a delictual one. The averment
that the defendant's actions were wrongful and unlawful was not
enough to found a cause of action. In her view, in order to succeed
in a suit for patrimonial loss under the aquilian action “the
party must plead and prove” that the defendant committed a wrongful
act which resulted in actual loss.
Therein
lies the defendant's problem.
The
determination of whether a claim is excipiable or not cannot be
premised
on proof of an averment. Proof relates to evidence which is the
province of trial and not an exception. The essence of any claim is
located in the pleadings whose function is to inform the parties of
the points of issue between 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. See BECK's Theory
and Principles of Civil Actions, 5th ed…,. To that extent,
pleadings are required to be drawn in summary form, must be brief and
concise and must state only relevant facts and not evidence. The
seminal judgement of DAVIS J in Kahn v Stuart 1942 CPD 386…, sets
out clearly how the court should approach the pleadings;
“…,
the court should not look at a pleading with a magnifying glass of
too high power. If it does so, it (is) almost bound to find flaws in
most pleadings…,. It is so easy, especially for busy counsel, to
make mistakes here or there, to say too much or too little, or to
express something imperfectly. In my view, it is the duty of the
court, when an exception is taken to a pleading, first to see if
there is a point of law to be decided
which will dispose of the case in the whole or in part. If there is
not, then it must see if there is any embarrassment which is real and
such as cannot be met by the asking of particulars…,. And, unless
the excepient can satisfy the court that there is such point of law
or such real embarrassment, then the exception should be dismissed.”
It
is crucial to note that a pleading is excipiable on the ground that
it does not disclose a cause of action if no possible evidence led on
the pleading can disclose such cause of action. As stated by BEADLE
AJ…, in McKelvey v Cowan N.O. 1980 (4) SA 525 (Z);
“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. That is the manner in which I approach this case.”
The
plaintiff makes the statement, in her declaration, that the defendant
removed electrical equipment from her farm wrongfully and unlawfully.
She also states that, at some stage, after some engagement, the
defendant undertook to restore electrical power on realizing that she
needed it for cropping purposes. It further advised her to continue
with her farming activities on the promise that electricity would be
restored without delay. Notwithstanding all this, the defendant
wrongfully failed to provide power resulting in loss of crops.
There
is no doubt that the plaintiff's averments contain a lot of
prolixity, are lengthy, tedious and the pleading is unnecessarily
wordy. Indeed, the declaration could have been couched in more
elegant terms than it is. That, however, does not detract from the
fact that the pleading bellies all the necessary averments. If
evidence can be led to prove the wrongfulness and unlawfulness of the
defendants' conduct and to prove the existence of an undertaking
made by the defendant to restore electricity at the plaintiff's
farm and the attendant knowledge that such was needed for irrigating
crops, then a cause of action would be established. For that reason,
the pleading cannot be said to be excipiable: McKelvey v Cowan N.O.
1980 (4) SA 525 (Z). I am not persuaded that the exception taken by
the defendant has the object of settling the case, or part of it, in
a cheap and easy manner or that it has the object of protecting the
defendant against an embarrassment so serious as to merit the costs
of an exception: Keeley v Heller 1903 TS 101. If anything, the
exception appears designed to confound the plaintiff.
It
is without merit.
Having
come to that conclusion, I find it unnecessary to deal with the
objection taken by counsel for the plaintiff that the exception was
not taken in accordance with Rule 140(1)(b) of the High Court of
Zimbabwe Rules 1971, in that no letter of complaint was written to
the plaintiff to address the source of complaint about the pleading:
See also HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior
Courts in South Africa, 3rd ed…,. The pleading is simply not
excipiable on the basis relied upon by the defendant. There would
have been nothing to amend or rectify as envisaged by Rule 140(1)(b).
While
it is not the intention of the law to discourage parties from taking
exceptions if such exceptions may result in the reduction of costs
and the shortening of proceedings: McKelvey v Cowan N.O. 1980 (4) SA
525 (Z); Mnangagwa v Alpha Media Holdings (Pvt) Ltd and Anor
HH225-13, I am of the view that this exception is thoroughly without
merit and should not have been taken at all. It is remarkable that
this court is now increasingly being called upon to adjudicate over
so many of these exceptions which are devoid of merit and appear
intended to delay proceedings. Invariably, excipients are approaching
the court, frequently, praying for a dismissal of claims, as has been
requested by the defendant in casu, when the proper remedy would be
for the plaintiff to be directed to amend the impugned pleading.
Where
an exeption of this nature is upheld, the plaintiff would be allowed
to amend the pleading; Levitan v Newhaven Holiday Enterprises CC 1991
(2) SA 297; Marney v Watson and Anor 1978 (4) SA 140; HERBSTEIN and
VAN WINSEN, The Civil Practice of the Superior Courts in South
Africa, 3rd ed…,.
I
therefore take the view that the defendant must face the consequences
of its ill–conceived exception which has unnecessarily put the
plaintiff out of pocket. Accordingly, the exception is hereby
dismissed with costs.
