Legal Personality re: Approach, Rule of Separate Legal Existence, Business Trade Names & Fiction of Separate Legal Entity

It was submitted, on behalf of the plaintiffs, that it is trite law, that “…, a court will not pierce the corporate veil of a company because, as a registered company, it is a legal persona in its own right and endowed with its own legal persona, which is distinct from its shareholders.”

See Salomon v Salomon & Co Ltd [1897] AC (HL); Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530…,.

The plaintiffs submitted, however, that there are exceptions to this principle, which are based and grounded in policy considerations; that, when the notion of a legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association: see US v Milwaukee Refridgerator Transit Co 42 Fed 247 (1905)…,.

It was submitted, further, that, when the corporation is the mere alter ego or business conduit of a person, it may be disregarded, and that where fraud, dishonesty, or other improper conduct is found, the need to preserve the separate corporate identity would have to be balanced against policy considerations which arise in favour of piercing the corporate veil.

The plaintiffs relied on the case of Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548…, as authority for this proposition.

It is my considered view, that, whilst counsel for the plaintiffs correctly cited this case as authority for the proposition that, in proper cases, depending on the merits of each case, the corporate veil can be pierced, mero motu by the court, this case does not advance the plaintiffs case any further.

It is of persuasive import, being a judgment of my brother judge.

However, the case, in my view, turned on its peculiar facts, and, it cannot be said that the corporate veil should be pierced willy-nilly at the court's instance in every case.

Legal Personality re: Lifting Corporate Veil, Personal Liability of Directors, Alter Ego & Fiction of Separate Legal Entity

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter....,.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application, and counter-claimed that the second and third defendants had been erroneously joined to the proceedings.

I will deal with the second issue for trial first, because, in my view, it can be disposed of more easily than the first issue for trial, that of the exception.

In considering whether or not the second and third defendants have been erroneously joined to these proceedings, the court had regard to the reason for their citation in the declaration to the summons first.

On p3 of the declaration, the plaintiffs state that:

“1st defendant is A. Adam & Company, a corporate body established in terms of the laws of the republic…,. 2nd and 3rd defendants are…, adult Zimbabweans who control the activities of the 1st defendant and through whose agency it acts.”

Order 13 Rule 87 sub-rule (2) of the High Court Rules 1971 provides as follows:

“87. Misjoinder or nonjoinder of parties

(1)…,.

(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application —

(a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b)…,.

(3)…,.”

It was submitted, on behalf of the plaintiffs, that it is trite law, that “…, a court will not pierce the corporate veil of a company because, as a registered company, it is a legal persona in its own right and endowed with its own legal persona, which is distinct from its shareholders.”

See Salomon v Salomon & Co Ltd [1897] AC (HL); Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530…,.

The plaintiffs submitted, however, that there are exceptions to this principle, which are based and grounded in policy considerations; that, when the notion of a legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association: see US v Milwaukee Refridgerator Transit Co 42 Fed 247 (1905)…,.

It was submitted, further, that, when the corporation is the mere alter ego or business conduit of a person, it may be disregarded, and that where fraud, dishonesty, or other improper conduct is found, the need to preserve the separate corporate identity would have to be balanced against policy considerations which arise in favour of piercing the corporate veil.

The plaintiffs relied on the case of Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548…, as authority for this proposition.

It is my considered view, that, whilst counsel for the plaintiffs correctly cited this case as authority for the proposition that, in proper cases, depending on the merits of each case, the corporate veil can be pierced, mero motu by the court, this case does not advance the plaintiffs case any further.

It is of persuasive import, being a judgment of my brother judge.

However, the case, in my view, turned on its peculiar facts, and, it cannot be said that the corporate veil should be pierced willy-nilly at the court's instance in every case.

The question for determination is whether the second and third defendants were properly joined to the proceedings.

The court must consider the question of joinder or mis-joinder, not, in my view, that of the piercing of the corporate veil which is being raised for the first time and was not pleaded....,.

In Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548, the court found that the control exercised by the holding company over its subsidiaries justified the treatment of the Group as a single economic entity. In deciding whether it was necessary to apply for upliftment of the corporate veil, the court found, that, in the circumstances of the case before it, such application was not necessary as the conclusion would be the same.

That is not so in this case before me.

Each case depends on its merits and on the facts.

There is no evidence that the second and third defendants exercised the same level of control over the first defendant. There is no evidence that out of all the officers of the first defendant, the second and third defendants caused the eviction of the first plaintiff.

I accept the submission made by counsel for the defendants, that, in order for the corporate veil to be uplifted, in the circumstances of this case, an application for piercing the veil ought to be made and considered.

It was not up to the plaintiffs to merely include the second and third defendants as parties to the proceedings in the absence of sufficient legal basis to do so. This imputes personal liability to them for the first defendant's actions. No justification for imputing personal liability was proffered in the summons or in the declaration.

Accordingly, in terms of Order 13 Rule 87(2)(a), I order, that, the second and third defendants cease to be parties to these proceedings. Costs shall remain in the cause. The plaintiffs may have recourse against those defendants in terms of section 318 of the Companies Act [Chapter 24:03], or may make a proper application for piercing of the corporate veil.

The summons shall be amended accordingly, as provided by Order 13 Rule 88...,.

It is ordered, that, the first and second defendants be removed as parties to these proceedings...,.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter....,.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application, and counter-claimed that the second and third defendants had been erroneously joined to the proceedings.

I will deal with the second issue for trial first, because, in my view, it can be disposed of more easily than the first issue for trial, that of the exception.

In considering whether or not the second and third defendants have been erroneously joined to these proceedings, the court had regard to the reason for their citation in the declaration to the summons first.

On p3 of the declaration, the plaintiffs state that:

“1st defendant is A. Adam & Company, a corporate body established in terms of the laws of the republic…,. 2nd and 3rd defendants are…, adult Zimbabweans who control the activities of the 1st defendant and through whose agency it acts.”

Order 13 Rule 87 sub-rule (2) of the High Court Rules 1971 provides as follows:

“87. Misjoinder or nonjoinder of parties

(1)…,.

(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application —

(a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b)…,.

(3)…,.”

It was submitted, on behalf of the plaintiffs, that it is trite law, that “…, a court will not pierce the corporate veil of a company because, as a registered company, it is a legal persona in its own right and endowed with its own legal persona, which is distinct from its shareholders.”

See Salomon v Salomon & Co Ltd [1897] AC (HL); Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530…,.

The plaintiffs submitted, however, that there are exceptions to this principle, which are based and grounded in policy considerations; that, when the notion of a legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association: see US v Milwaukee Refridgerator Transit Co 42 Fed 247 (1905)…,.

It was submitted, further, that, when the corporation is the mere alter ego or business conduit of a person, it may be disregarded, and that where fraud, dishonesty, or other improper conduct is found, the need to preserve the separate corporate identity would have to be balanced against policy considerations which arise in favour of piercing the corporate veil.

The plaintiffs relied on the case of Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548…, as authority for this proposition.

It is my considered view, that, whilst counsel for the plaintiffs correctly cited this case as authority for the proposition that, in proper cases, depending on the merits of each case, the corporate veil can be pierced, mero motu by the court, this case does not advance the plaintiffs case any further.

It is of persuasive import, being a judgment of my brother judge.

However, the case, in my view, turned on its peculiar facts, and, it cannot be said that the corporate veil should be pierced willy-nilly at the court's instance in every case.

The question for determination is whether the second and third defendants were properly joined to the proceedings.

The court must consider the question of joinder or mis-joinder, not, in my view, that of the piercing of the corporate veil which is being raised for the first time and was not pleaded....,.

In Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548, the court found that the control exercised by the holding company over its subsidiaries justified the treatment of the Group as a single economic entity. In deciding whether it was necessary to apply for upliftment of the corporate veil, the court found, that, in the circumstances of the case before it, such application was not necessary as the conclusion would be the same.

That is not so in this case before me.

Each case depends on its merits and on the facts.

There is no evidence that the second and third defendants exercised the same level of control over the first defendant. There is no evidence that out of all the officers of the first defendant, the second and third defendants caused the eviction of the first plaintiff.

I accept the submission made by counsel for the defendants, that, in order for the corporate veil to be uplifted, in the circumstances of this case, an application for piercing the veil ought to be made and considered.

It was not up to the plaintiffs to merely include the second and third defendants as parties to the proceedings in the absence of sufficient legal basis to do so. This imputes personal liability to them for the first defendant's actions. No justification for imputing personal liability was proffered in the summons or in the declaration.

Accordingly, in terms of Order 13 Rule 87(2)(a), I order, that, the second and third defendants cease to be parties to these proceedings. Costs shall remain in the cause. The plaintiffs may have recourse against those defendants in terms of section 318 of the Companies Act [Chapter 24:03], or may make a proper application for piercing of the corporate veil.

The summons shall be amended accordingly, as provided by Order 13 Rule 88....,.

It is ordered, that, the first and second defendants be removed as parties to these proceedings...,.

Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter....,.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application, and counter-claimed that the second and third defendants had been erroneously joined to the proceedings.

I will deal with the second issue for trial first, because, in my view, it can be disposed of more easily than the first issue for trial, that of the exception.

In considering whether or not the second and third defendants have been erroneously joined to these proceedings, the court had regard to the reason for their citation in the declaration to the summons first.

On p3 of the declaration, the plaintiffs state that:

“1st defendant is A. Adam & Company, a corporate body established in terms of the laws of the republic…,. 2nd and 3rd defendants are…, adult Zimbabweans who control the activities of the 1st defendant and through whose agency it acts.”

Order 13 Rule 87 sub-rule (2) of the High Court Rules 1971 provides as follows:

“87. Misjoinder or nonjoinder of parties

(1)…,.

(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application —

(a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b)…,.

(3)…,.”

It was submitted, on behalf of the plaintiffs, that it is trite law, that “…, a court will not pierce the corporate veil of a company because, as a registered company, it is a legal persona in its own right and endowed with its own legal persona, which is distinct from its shareholders.”

See Salomon v Salomon & Co Ltd [1897] AC (HL); Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530…,.

The plaintiffs submitted, however, that there are exceptions to this principle, which are based and grounded in policy considerations; that, when the notion of a legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association: see US v Milwaukee Refridgerator Transit Co 42 Fed 247 (1905)…,.

It was submitted, further, that, when the corporation is the mere alter ego or business conduit of a person, it may be disregarded, and that where fraud, dishonesty, or other improper conduct is found, the need to preserve the separate corporate identity would have to be balanced against policy considerations which arise in favour of piercing the corporate veil.

The plaintiffs relied on the case of Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548…, as authority for this proposition.

It is my considered view, that, whilst counsel for the plaintiffs correctly cited this case as authority for the proposition that, in proper cases, depending on the merits of each case, the corporate veil can be pierced, mero motu by the court, this case does not advance the plaintiffs case any further.

It is of persuasive import, being a judgment of my brother judge.

However, the case, in my view, turned on its peculiar facts, and, it cannot be said that the corporate veil should be pierced willy-nilly at the court's instance in every case.

The question for determination is whether the second and third defendants were properly joined to the proceedings.

The court must consider the question of joinder or mis-joinder, not, in my view, that of the piercing of the corporate veil which is being raised for the first time and was not pleaded....,.

In Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548, the court found that the control exercised by the holding company over its subsidiaries justified the treatment of the Group as a single economic entity. In deciding whether it was necessary to apply for upliftment of the corporate veil, the court found, that, in the circumstances of the case before it, such application was not necessary as the conclusion would be the same.

That is not so in this case before me.

Each case depends on its merits and on the facts.

There is no evidence that the second and third defendants exercised the same level of control over the first defendant. There is no evidence that out of all the officers of the first defendant, the second and third defendants caused the eviction of the first plaintiff.

I accept the submission made by counsel for the defendants, that, in order for the corporate veil to be uplifted, in the circumstances of this case, an application for piercing the veil ought to be made and considered.

It was not up to the plaintiffs to merely include the second and third defendants as parties to the proceedings in the absence of sufficient legal basis to do so. This imputes personal liability to them for the first defendant's actions. No justification for imputing personal liability was proffered in the summons or in the declaration.

Accordingly, in terms of Order 13 Rule 87(2)(a), I order, that, the second and third defendants cease to be parties to these proceedings. Costs shall remain in the cause. The plaintiffs may have recourse against those defendants in terms of section 318 of the Companies Act [Chapter 24:03], or may make a proper application for piercing of the corporate veil.

The summons shall be amended accordingly, as provided by Order 13 Rule 88....,.

It is ordered, that, the first and second defendants be removed as parties to these proceedings...,.

Legal Personality re: Proceedings Against a Corporate Entity and the Citation of Company Executives

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter....,.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application, and counter-claimed that the second and third defendants had been erroneously joined to the proceedings.

I will deal with the second issue for trial first, because, in my view, it can be disposed of more easily than the first issue for trial, that of the exception.

In considering whether or not the second and third defendants have been erroneously joined to these proceedings, the court had regard to the reason for their citation in the declaration to the summons first.

On p3 of the declaration, the plaintiffs state that:

“1st defendant is A. Adam & Company, a corporate body established in terms of the laws of the republic…,. 2nd and 3rd defendants are…, adult Zimbabweans who control the activities of the 1st defendant and through whose agency it acts.”

Order 13 Rule 87 sub-rule (2) of the High Court Rules 1971 provides as follows:

“87. Misjoinder or nonjoinder of parties

(1)…,.

(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application —

(a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b)…,.

(3)…,.”

It was submitted, on behalf of the plaintiffs, that it is trite law, that “…, a court will not pierce the corporate veil of a company because, as a registered company, it is a legal persona in its own right and endowed with its own legal persona, which is distinct from its shareholders.”

See Salomon v Salomon & Co Ltd [1897] AC (HL); Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530…,.

The plaintiffs submitted, however, that there are exceptions to this principle, which are based and grounded in policy considerations; that, when the notion of a legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association: see US v Milwaukee Refridgerator Transit Co 42 Fed 247 (1905)…,.

It was submitted, further, that, when the corporation is the mere alter ego or business conduit of a person, it may be disregarded, and that where fraud, dishonesty, or other improper conduct is found, the need to preserve the separate corporate identity would have to be balanced against policy considerations which arise in favour of piercing the corporate veil.

The plaintiffs relied on the case of Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548…, as authority for this proposition.

It is my considered view, that, whilst counsel for the plaintiffs correctly cited this case as authority for the proposition that, in proper cases, depending on the merits of each case, the corporate veil can be pierced, mero motu by the court, this case does not advance the plaintiffs case any further.

It is of persuasive import, being a judgment of my brother judge.

However, the case, in my view, turned on its peculiar facts, and, it cannot be said that the corporate veil should be pierced willy-nilly at the court's instance in every case.

The question for determination is whether the second and third defendants were properly joined to the proceedings.

The court must consider the question of joinder or mis-joinder, not, in my view, that of the piercing of the corporate veil which is being raised for the first time and was not pleaded....,.

In Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548, the court found that the control exercised by the holding company over its subsidiaries justified the treatment of the Group as a single economic entity. In deciding whether it was necessary to apply for upliftment of the corporate veil, the court found, that, in the circumstances of the case before it, such application was not necessary as the conclusion would be the same.

That is not so in this case before me.

Each case depends on its merits and on the facts.

There is no evidence that the second and third defendants exercised the same level of control over the first defendant. There is no evidence that out of all the officers of the first defendant, the second and third defendants caused the eviction of the first plaintiff.

I accept the submission made by counsel for the defendants, that, in order for the corporate veil to be uplifted, in the circumstances of this case, an application for piercing the veil ought to be made and considered.

It was not up to the plaintiffs to merely include the second and third defendants as parties to the proceedings in the absence of sufficient legal basis to do so. This imputes personal liability to them for the first defendant's actions. No justification for imputing personal liability was proffered in the summons or in the declaration.

Accordingly, in terms of Order 13 Rule 87(2)(a), I order, that, the second and third defendants cease to be parties to these proceedings. Costs shall remain in the cause. The plaintiffs may have recourse against those defendants in terms of section 318 of the Companies Act [Chapter 24:03], or may make a proper application for piercing of the corporate veil.

The summons shall be amended accordingly, as provided by Order 13 Rule 88....,.

It is ordered, that, the first and second defendants be removed as parties to these proceedings...,.

Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial....,.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed...,.

Prescription re: Approach, Interruption, Delay or Postponement in the Completion of Prescription

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial....,.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed...,.

Contumelia, Injuria, Assault, Malicious or Wrongful Prosecution, Arrest or Detention and Execution against Property

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

Cause of Action and Draft Orders re: Exceptions, Special Pleas, Plea in Bar and Plea in Abatement iro Approach

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

Final Orders re: Procedural Irregularities & Discretion of Court to Condone, Interfere, Dismiss, Strike, Remit or Set Aside

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

Pleadings re: Nullity of Proceedings or Acts, Peremptory Provisions & the Doctrines of Strict and Substantial Compliance

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

Costs re: Interim or Interlocutory Proceedings

Costs will remain in the cause.

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HH83-14 - RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM

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