MATHONSI
J:
On
16 January 2013 the applicant issued summons in which it cited the
defendant as “Hwange Colliery Company”, for payment of $59,590-13
plus interest at the prescribed rate and collection commission being
the purchase price of safety shoes allegedly supplied at the instance
of that entity. The face of the summons is defective in that it does
not comply with rule 11(c) of the High Court of Zimbabwe Rules, 1971
as it does not contain a general statement of the nature of the claim
and the relief or remedy sought in the action.
But
then, the failure to comply with rule 11(c) is not the main subject
of the present inquiry, the respondent not having excepted to the
summons by reason of that defect. To the summons was attached what
the applicant termed “particulars of claim” as opposed to a
declaration.
The
applicant must have realised early that its summons had defects not
only in that the particulars of claim attached to the summons should
have been headed “declaration” but also that the name of the
defendant was incomplete. The proper citation of the defendant should
be “Hwange Colliery Company Limited.” The word “Limited” was
omitted. It then sought the indulgence of the respondent to amend the
pleadings to address those anomalies but the respondent refused to
consent to such amendment. The applicant has been forced to make this
application for an amendment to add the word “Limited” in the
name of the defendant, to substitute “declaration” for
“particulars of claim” to add a few averments to para 3 of the
declaration and effectively to substitute the figure of $67 931-14 in
respect of the value of the goods sold to the respondent.
The
application is opposed by the respondent on the grounds that the
party cited in the summons; “Hwange Colliery Company”, does not
exist and as the applicant has sued a non-existent party the summons
does not have a defendant and is therefore a complete nullity. The
summons is also a nullity, it is argued, because it does not contain
a true and concise statement of the claim in breach of rule 11(c) of
the court rules. Finally, the respondent took the view that the
amendment sought is prejudicial to it in that it “substantially
changes the complexion of the case which it is to meet”.
The
evidence that has been placed before me shows that by a certificate
of change of name, Form C2, dated 8 November 2004 the name Wankie
Colliery Company Limited was changed following a special resolution
to Hwange Colliery Company Limited. Therefore the true name of the
respondent is Hwange Colliery Company Limited. As I have already
said, in citing the defendant in the summons the applicant omitted
only the appellation “Limited” and it now seeks to have it added.
In
advancing the argument that the summons does not have a defendant and
is therefore a nullity which cannot be saved by an amendment, Mr
Zhuwarara
who appeared for the respondent relied on the authority of JDM
Agro–Consult & Marketing (Pvt) Ltd v
Editor,
The Herald & Anor 2007
(2) ZLR 71 (H) 75 B – D in which Gowora J (as she then was)
remarked that:
“It
is pertinent to state from the outset that the application to amend
the summons by altering the name of the second defendant which was
granted at the pre-trial conference was without effect. The party
named as the second defendant did not exist at the time that the
summons was issued and served. The correct appellation is Zimbabwe
Newspapers (1980) Ltd. That is a registered company, duly
incorporated under the laws of this country. It's coming into being
is due to the process by which it was incorporated as such. It is
then, after incorporation, that it becomes a juristic person,
capable of suing and being sued in its own right. Without that
process it is non-existent. The entity sued by the plaintiff as the
second defendant is The Herald Newspaper. It is not a registered
company and does not exist in any other form. Consequently, the
plaintiff issued summons against a non-existent being. The amendment
to the second defendant's name therefore was of no force and effect
as the summons itself was a nullity. In Gariya
Safaris (Pvt) Ltd v Van Wyk (1996
(2) ZLR 246 (H))
this court stated:
'A
summons has legal force and effect when it is issued by the plaintiff
against an existing legal or natural person. If there is no legal or
natural person answering to the names in the summons as being those
of the defendant, the summons is null and void ab
initio.'”
The
learned judge went on to pronounce at 75 G; 76A that:
“It
matters not, in my view, that the two defendants entered appearance
to defend and proceeded to file a plea. The process of filing
pleadings under those names would not have imbued the summons with
any form of legality. There was no summons for them to plead to given
that there were no persons answering to the names on the summons.
They cannot be identified as such.
This
is not a mis-description which can be amended by alteration of the
names on the summons, nor is it a substitution. One cannot amend or
substitute something which does not exist.”
(The underlining is mine).
I
must say that in that case the plaintiff had cited the first
defendant as “The Editor, The Herald” and the second defendant as
“The Herald”. Both did not exist because, as the court correctly
concluded the editor of a newspaper is an occupation which may be
occupied by an individual at any one time, which occupant changes
from time to time. The citation was irregular. The plaintiff should
have cited the name of that editor. As for the second defendant, “The
Herald Newspaper”, it was a non-existent entity because the correct
defendant was the Zimbabwe Newspapers (1980) Limited, which is the
company responsible for the publication and circulation of the
newspaper known as the Herald. There was therefore no way of saving
that summons.
I
should also relate to the case of Gariya
Safaris (Pvt) Ltd v
Van Wyk 1996
(2) ZLR 246 (H) which was relied upon by Gowora J (as she then was)
in JDM
Agro-Consulting & Marketing
(Pvt)
Ltd,
supra.
In
that case the applicant had obtained judgment against a non-existent
company. The respondent, who had signed, the deed of surety accepted
personal liability. The applicant sought an order to amend the
judgment by substituting the respondent for the non-existent company
but the respondent did not consent to the substitution. Malaba J (as
he then was) stated at 252G:
“The
plaintiff is, of course, entitled to choose the person against whom
to proceed and leave out any person, against whom it does not desire
to proceed. A summons has legal force and effect when it is issued by
the plaintiff against an existing legal or natural person. If there
is no legal or natural person answering to the names written in the
summons as being those of the defendant, the summons is null and
void abinitio.”
He
went on at 253 C – D:
“In
this case, the person against whom the plaintiff thought it was
proceeding as a defendant was non-existent at the time summons was
issued. The proceedings and judgment that followed the summons were
null and void. To try an action in which there is only one party is
an exercise in futility. There were no two parties to give rise to
the existence of a cause of action between them. There was nothing to
be substituted as a new judgment debtor. There was no old judgment
debtor.”
See
also Old
Mutual Asset Management (Pvt) Ltd v
F
& R Travel Tours & Car Sales 53/07
(unreported).
Those
cases are clearly distinguishable from the present case and reliance
on them is completely misplaced.
In
both cases, there was no defendant at all and the court correctly
found that no amendment could be made to a non-existence summons
given that a summons is only valid if it has a defendant to answer to
it. In the present case it cannot be said, by any stretch of the
imagination, that the defendant does not exist because there is an
entity answering to that name. The only omission was the word
“Limited” which is an expression speaking to its limited
liability status than anything. The amendment sought relates to
completeness of the name as opposed to introducing a new persona
to
a summons originally without a defendant.
Mr
Zhuwarara
referred me to an authority which is not favourable to his case and
I commend him for that. It is the case of Masuku
v
Delta Beverages
HB172/12 in which Cheda J quoted with approval the remarks of Wessels
J in Van
Vuuren v
Braun and Summers
1910 TPD 950 at 955 that:
“Now,
in order to bring a defendant legally into court a summons is
required. In order that the summons may be valid it must comply with
the requirements of r 6. It must purport to be a summons, a mere
request or letter to the effect that the defendant is kindly
requested to appear in court on a certain day is an invalid citation.
Next the summons must specify the defendant. It is true that it will
not be described as accurately as he should be. If a man is baptized
“George Smith” it is no defect to call him “John Smith”
because the individual is pointed out with sufficient accuracy. But
if there were no mention of the defendant at all the summons would be
a wholly worthless document and could not be amended by inverting the
defendant's name in court.”
Cheda
J went on to conclude that:
“In
casu
the entity against whom applicant has sued is said to be
non-existent. The argument is grounded on the fact that the citation
omitted the full description of the respondent. The crucial question
that [irresistibly] begs an answer is, to what extent does the
omission affect the identification of the respondent? Respondent is a
well-known blue chip company whose fleet of cars are all over our
national and domestic roads and its commercial advertisements need no
introduction. In other words Delta Beverages is known here and
beyond. To me, applicant may have technically erred in her
description, but has described respondent with sufficient clarity to
an extent of eliminating any mistake either legal or factual of
respondents identity. Applicant sufficiently described respondent.”
In
that matter the respondent had been cited as Delta Beverages instead
of Delta Beverages (Pvt) Ltd its registered name. That defective
description was upheld.
I
am also mindful of the fact that in terms of r 8C of the High Court
of Zimbabwe Rules, 1971 a person carrying on business in a name or
style may sue or be sued in that name or style as if it were the name
of an association. So the sin of omitting the appellation “Limited”
in the citation pales in that regard.
In
my view, the applicant is entitled to make the amendment in order to
correctly and completely cite the respondent.
Then
there is the question of failure to give a concise statement of the
nature of the claim and the relief sought on the face of the summons.
Rule 11(c) requires that the summons must contain:
“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.”
Clearly
the summons which says; “A statement of the plaintiff's claim is
set out in the declaration, a copy of which is annexed to this
summons”, does not meet the requirements of r 11(c).
I
said earlier that the issue does not form the main subject of the
present inquiry because the applicant has not sought to amend the
summons to comply with rule 11(c). However, the respondent mentions
that defect in augmenting its argument that the summons is a nullity.
I do not agree.
Ordinarily
such a defect would be dealt with by way of an exception or special
plea. The respondent has not excepted or filed a special plea. In any
event, even were such an exception be made, if upheld, the plaintiff
would be afforded an opportunity to amend the summons within a fixed
period of time. It would not amount to an outright dismissal of the
claim : Alder v Elliot 1998 (2) ZLR 283 (S) 292B; Auridiam
Zimbabwe (Pvt) Ltd v
Modus
Publications
(Pvt)
Ltd
1993 (2) ZLR 359 (H) 373 C – D; Murozvi
v Chawatama Signs & Ors
HH 481/15.
The
other amendments sought by the applicant are routine and usual
amendments which a litigant is entitled to make in the normal course
of pleading and r 132 allows a party to amend a pleading anytime
before judgment is delivered.
In
Whittaker
v
Roos
& Anor
1911 TPD 1092 at 1102 – 3, the point was made that the business of
pleading is not a game where if a mistake is made, the forfeit is
taken. The real dispute between the parties is the main concern of
the court which will allow an amendment which helps to ventilate
that.
What
the court has regards to in deciding whether to allow an amendment or
not was succinctly set out in UDC
v
Shamva Flora (Pvt) Ltd
2000 (2) ZLR 210 (H) 217 C – F namely;
1.
The court has discretion whether to grant or refuse an amendment.
2.
An amendment cannot be granted for the mere asking but some
explanation must be offered therefore.
3.
The applicant must show that prima
facie
the amendment has something deserving of consideration, a triable
issue.
4.
The modern tendency is that the court will generally grant an
amendment if it facilitates the proper ventilation of the dispute
between the parties.
5.
The party seeking it must not be mala
fide.
6.
It must not cause an injustice to the other party which cannot be
compensated by costs.
7.
The amendment should not be refused simply as punishment to the
applicant for neglect.
8.
A mere loss of time is no reason in itself to refuse the application.
9.
If the amendment is not sought timeously some reason should be given.
See
also Commercial
Union Assuarance Co Ltd v
Waymark N.O 1995
(2) SA 73 at 77 F – I; Kingdom
Merchant Bank Ltd v
Shah & Anor
HH159/13.
Taking
into account all the foregoing guidelines and in the exercise of my
discretion, I am of the view that the amendment sought should be
granted.
In
the result, it is ordered that:
The
applicant's summons and declaration are amended to read as follows:
1.
The citation of the defendant is hereby amended to read Hwange
Colliery Company Limited.
2.
The caption of the declaration reading “Particulars of claim” is
deleted and in its place is substituted the word “Declaration”.
3.
Paragraph 2 of the declaration to read Hwange Colliery Company
Limited where the name Hwange Colliery Company appears.
4.
In para 3 of the declaration is added the following:
“The
agreement between the parties was oral. Pursuant to the agreement,
plaintiff then supplied in three batches in November 2011, December
2011 and January 2012, Tripple Tee low cut safety shoes.”
5.
By the deletion of the whole of para 5 of the declaration and its
substitution with the following:
“5.
The total value of $67,931-14 was supposed to be paid within thirty
(30) days after date of delivery of the safety shoes.”
6.
By the addition of a new para 6 to read:
“6.
Defendant breached the agreement by not paying the total of
$67,931-14 due to the plaintiff within the agreed time period.”
7.
Paragraph
6 becomes paragraph 7.
8.
The costs of this application shall be costs in the main cause.
Scanlen
& Holderness,
applicant's legal practitioner's
Mawere
and Sibanda,
respondent's legal practitioner's
