Opposed
matter-Exception
MUNANGATI-MANONGWA
J:
This
is an exception by the defendant to the plaintiff's summons and
declaration as amplified by further particulars on the grounds that
the plaintiff's claim does not disclose a cause of action.
The
defendant further avers that the claim is bad in law.
The
background to this case is that, the plaintiff had sued for damages
in the Magistrates' Court in an action he had stated as “trespass
on person-battery”. As no appearance to defend was entered, he
sought default judgement. The magistrate threw out his application
and in doing so, stated that the plaintiff had sued for “trespass
on land”. The plaintiff appealed against the decision and the
appeal is pending in this court.
Arising
out of those circumstances, the plaintiff has in this matter
instituted an action for damages against the defendant being
Secretary–Judicial Service Commission.
The
plaintiff relies on vicarious liability, and is suing the defendant
in a representative capacity as the employer of the magistrate who
dismissed his case.
The
action is defended.
The
plaintiff's claim is couched as follows:
“the
failure or omission to read accurately all the plaintiff's
documents filed of record at court by the plaintiff in this matter,
that has a cause of action of 'Trespass to the person-battery'
which the magistrate read as 'Trespass to land'……
inexplicably”.
The
plaintiff further states that he is suing the defendant in contract
and delict in her representative capacity.
The
defendant requested for further particulars, upon being furnished
with same, the defendant raised an exception to the plaintiff's
summons.
The
exception is premised on the following grounds:
(i)
The summons do not reveal a cause of action for its claim against the
defendant thus does not comply with the peremptory provisions of
Order 3 Rule 11(c) of this court's rules which specifically
provides that a summons shall contain “a true concise statement of
the nature, extent and grounds of the cause of action and of relief
or remedies sought in the action.”
(ii)
The summons are vague and embarrassing in that it is not clear
whether the plaintiff's claim is in contract or in delict. The
plaintiff has not averred any of the elements required to succeed in
a claim either in delict or contract.
(iii)
There is no action known as “professional negligence for mental
suffering” which further points to the fact that the claim is vague
and embarrassing.
The
defendant sought dismissal of the plaintiff's claim with costs at a
higher scale.
After
service of the exception on the plaintiff, he filed a document headed
“Notice of Amendment” in which he sought to amend the claim
indicating that at the hearing he was to apply to amend the summons.
No
such application was made on the day of the hearing.
Suffice
to say, the notice of amendment would not have changed the state of
papers as nothing materially changed apart from creating further
confusion.
Before
the hearing, plaintiff raised issue that the defendant had not filed
her heads of argument on time since they were filed after plaintiff
had filed a response to the exception and filed a notice to amend
summons, hence, defendant was barred.
The
defendant's counsel disputed that assertion insisting there was no
bar in operation against the defendant.
The
court found no merit in plaintiff's assertion.
Clearly,
the defendant filed heads of argument on 2 November 2015 and served
same on plaintiff, plaintiff filed his on the 12th
November 2015 hence there is no issue of delay in that aspect and no
bar operated against defendant. The court proceeded to hear the
matter on merits.
Mrs
Chikwanha
for the defendant argued that the plaintiff's summons did not
satisfy the mandatory requirements set out in Rule 11(c), that
omission rendered them a nullity. She referred the court to the case
of Bank
of Credit & Commerce Zimbabwe Ltd v
Jani Investments (Private) Limited 1983
(2) ZLR 317 (H) at 318F where faced with similarly defective summons
the court remarked:
“It
will be immediately realised, of course, by someone who runs very
quickly as he reads, that the summons is wholly invalid since it
discloses no cause of action whatever. Any exception to such summons
can only succeed instantly and completely.”
She
further argued that the summons was vague and embarrassing as it did
not disclose whether the claim was based in delict or contract law.
In
response the plaintiff maintained that a reading of the summons and
declaration which documents were complimentary, made issues clear.
Further he had filed a notice of amendment.
The
heads of argument filed by the plaintiff were not helpful as they
contained a lot of historical evidence and did not further his case.
I
agree with submissions made by the defence counsel regarding the
non-compliance and the inadequacy of the summons and declaration.
A
reading of the summons, declaration and further particulars clearly
reveals that these documents contain long winding explanations duly
tainted with allegations of bribery, corruption and political
interference against different court officials.
There
is no true and concise statement of the nature, extent and grounds of
the cause of action.
Facts
and evidence are all mixed up and one gets to pains as to determine
the facts upon which at law one can rely on to sustain a claim.
In
Odgers Principles
of Pleading and Practice in Civil Actions in the High Court of
Justice 2nd
Ed at 113 it is stated as follows;
“the
object of pleadings is to ascertain definitely what is the question
at issue between the parties and this object can only be attained
when each party states his case with precision.”
It
is this precision that in my view Rule 11(c) of this court's rules
advocates for.
The
reason behind Rule 11(c) is to ensure that a summons be a document
that clearly and concisely sets out the facts that the plaintiff
relies on which establish a cause at law for which specific relief
can be sought. Compliance with the requirement would create or bring
out a case to which the defendant is able to answer. It must be
clear to the defendant, what it is he is alleged to have done giving
rise to the plaintiff at law to claim the relief sought.
Rule
99(c) although not referred to by the defendant, comes to play. It
states that;
“A
pleading shall -
(c)
Contain a statement in summary form of the material facts on which
the party pleading relies for his claim or defence as the case may
be, but not the evidence by which they are to be proved.”
There
has to be a summary of allegations of fact which in law give rise to
a claim or justify the relief sought.
In
casu,
facts in the summons and declaration are so mixed up so as to cloud
the case to which the defendant has to answer. In essence they are
vague and embarrassing so as to go to the root of the claim.
The
court further agrees with the defendant's submissions that it is
not clear under which branch of law the plaintiff is suing.
Be
it in delict or contract, the plaintiff has failed to satisfy the
elements that sustain a claim under either of the branches.
In
purporting to claim delictual damages the plaintiff's declaration
reads as follows:
“(i)
There was damage of mental suffering directly arising out of the
magistrate's ruling to the plaintiff which is actionable under
negligence law.
The
plaintiff bases this averment on what he considers to be failure by
the defendant to recruit a competent magistrate.”
The
issue is, there is no cause of action like 'damage of mental
suffering'.
Even
if one can sue for mental distress, the facts alleged do not support
liability.
The
plaintiff appealed against the judgment granted in the Magistrates'
Court.
Further
one cannot sue a magistrate for damages when he/she is acting in
their professional capacity for misinterpreting the law or the facts,
hence the appeal and review processes.
Of
note is the fact that the defendant in this matter is the
Secretary–Judicial Service Commission, apart from not being the
employer of Ms Dzikiti the alleged magistrate (the employer being the
Judicial Service Commission) the sitting magistrate herself was not
cited. Most important, as the defendant is not an employer in the
circumstances no vicarious liability can attach to her.
The
contractual
claim is
stated as follows:
“The
plaintiff is suing in contract because the plaintiff paid court fees
being in consideration for a competent (a fit and proper ruling).”
The
question is, in paying for court fees did the plaintiff enter into a
contract with the sitting magistrate?
This
is not so, as court fees are meant for processing of papers and never
for the judgment.
In
Ebrahim
v
Controller
of Customs and Excise 1984
(1) ZLR 41 (HC) McNally J (as he then was) considered at length the
meaning of 'cause of action' as defined by scholars and in
certain judgments. As a result the accorded meaning in that case was
stated as:
“the
entire set of facts which give rise to an enforceable claim, this
includes every fact which is material to be proved to entitle a
plaintiff to succeed in his claim”.
My
understanding is, that the plaintiff has to specifically plead
material facts that entitle him to relief under the specific branch
of the law.
This,
the plaintiff has failed to do.
From
the pleadings, no material facts have been averred to sustain a claim
for damages under delict or the law of contract.
Notably
the plaintiff had not made the claims in the alternative, he sought
to rely on both causes of action for the same relief. As
demonstrated, none of the claims could hold.
In
Herbstein and Van Winsen, Civil
Practice of the High Courts of South Africa 5th
ed Vol 1 at p630 the learned authors clearly deal with the purpose of
an exception:
“The
aim of the exception procedure is thus to avoid the leading of
unnecessary evidence and to dispose of a case in whole or in part in
an expeditious and cost-effective manner. Thus pleadings whose
contents are so vague and it is impossible to determine the nature of
the claim or the defence and pleadings which are bad in law in that
their contents do not support any legally recognised cause of action
or defence are struck out.”
Certainly
the plaintiff's claim does not disclose a legally recognised cause
of action, the facts pleaded do not inform the defence in concise
terms the claim the defendant has to answer to. The summons and
declaration are fatally defective, the pleadings are incurably bad.
The
claim can therefore not stand.
In
the premises the exception has to be upheld, this being the
expeditious and cost effective way of disposing the case without
putting defendant to unnecessary expense.
Where
an exception is upheld, the court is at liberty to grant the affected
party an opportunity to amend its pleadings. This, in the case of a
plaintiff, could be in the form of leave to amend the particulars of
claim if so advised, within a specified period of time as the court
may determine.
As
alluded to earlier, the plaintiff had filed a notice of amendment.
A
reading of the proposed amendment shows that the contents are
argumentative, and consist of historical and evidentiary facts not
necessary in a pleading. In essence, the summons and declaration and
the proposed amendments consists of pleadings which are incurably
bad, nothing can be salvaged. This, coupled by the fact that the
party sued is the wrong party, defendant not being the employer, and
there being no direct legal relationship between the parties,
granting plaintiff leave to amend his pleadings is a futile exercise.
In
such an instance, the court has no option but to order dismissal of
plaintiff's claim.
Finally,
whilst
it is a constitutional right to be able to approach the courts to
obtain relief, self-actors must know that the practice of law is a
very specialised area which requires deep knowledge and skill. Simply
reading law books at random does not equip one with the requisite
knowledge. Legal assistance should be sought if one is to comply
with the rules and file appropriate papers.
The
plaintiff in this matter fell into a pit by his mere belief that he
could handle his claim without legal assistance. As a result, the
defendant has had to be put to expense in defending fatally defective
proceedings where the plaintiff filed numerous documents without
restrain some being withdrawn.
This
is a case which warrants that an order for costs on a legal
practitioner scale be granted to discourage such conduct which is
unnecessary and costly.
Accordingly
the following order is made:
It
is ordered that:
1.
The defendant's exception is upheld.
2.
The plaintiff's claim is dismissed with costs on a legal
practitioner and client scale.
Kantor
& Immerman,
defendant's legal practitioners
