Exception
MATHONSI
J:
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$500,000-00 for loss of 30 hectares of tobacco crop
and 20 hectares of sugar beans crop as well as US$200,000-00 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
para 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 a 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.”
Ms
Shuva 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
acquilian 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
permissed 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 at p32.
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 at 391
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 (as he then was) 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 realising 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: Mc Kelvey
v Cowan (supra).
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 Mr Mcgown 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 Herbestein and Van Winsen, The Civil Practice of the
Superior Courts in South Africa, 3rd ed, p338.
The
pleading is simply not excipiable on the basis relied upon 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. (supra);
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 &
Van Winsen op cit p341.
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.
Venturas
& Samukange, plaintiff's legal practitioner
Messrs
Muza & Nyapadi, defendant's legal practitioners
