The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security Guards (seventh defendant), Ministry of Home Affairs (eighth defendant), and, Registrar of Companies (ninth defendant).

In HC4096/96 he brought an application for his reinstatement as a director in the sixth defendant against the sixth defendant. He was reinstated. The sixth defendant got its act together and dismissed him as a director on 24 September 1996. He brought another application seeking reinstatement in HC4157/97. It was contested. BARTLETT J dismissed that application with costs on 17 September 1997.

The founding affidavit that launched the present matter is a carbon copy of the application he filed in HC2765/05 that he withdrew in June 2006.

The present matter was set down on the opposed roll for hearing on 25 January 2011 where PATEL J directed as follows:

1. There are disputes of fact which cannot be resolved on the papers.

2. Accordingly, it is ordered that the matter be referred to trial for determination on the basis of viva voce evidence as follows:

(a) The founding papers shall stand as summons commencing action and the opposing papers as notice of appearance to defend by first to sixth defendants;

(b) The applicant/plaintiff is directed to file his declaration on or before 8 February 2011 and the matter shall proceed thereafter in accordance with the Rules of Court.

(c) The costs of this application to date shall be costs in the cause.

The plaintiff merely turned the founding affidavit into a declaration and substituted all reference to the applicant and respondent by the plaintiff and defendant.

The plaintiff's declaration aptly fits into the description made by MAKARAU JP…, in Mwanyisa v Jumbo & Ors HH03-10…, cited with approval by MAWADZE J in Morris v Morris & Anor HH71-11…, as “a dog's breakfast.”

The six defendants' requested for further particulars; some of which were supplied.

On 1 April 2011, the defendants raised special pleas of res judicata and prescription and pleaded over the merits. The matter was referred to trial at the pre-trial conference held on 14 June 2011. The six issues referred to trial were:

1. Whether or not the plaintiff's claim is prescribed;

2. Whether or not the plaintiff's claim was determined by a competent court and is therefore res judicata;

3. If the matter is res judicata, whether the plaintiff is entitled to the relief sought;

4. Whether the second to fifth defendants are legitimate directors of the sixth defendant;

5. Whether the plaintiff is entitled to shares in the sixth defendant, and, if so, how many shares or what fraction or proportion of shares?;

6. Whether CR14 forms filed with the ninth defendant, dated 7 January 2003 and 14 September 2007, signed by the second defendant and fifth defendant respectively, should be nullified.

Only the first three issues arise for determination from the special pleas raised. I deal with the special pleas in the manner that they were argued.

The defendant filed a special plea on 20 October 2008. The following facts constitute the basis of the special plea.

1. The respondent (plaintiff in the main matter, hereinafter called “plaintiff”) issued summons under case number HC190/08 claiming damages arising from a road traffic accident on 14 January 2008.

2. Pleadings were exchanged between the parties leading to a convening of the pre-trial conference before the judge in chambers in terms of Rule 182 of the High Court Rules, 1971 (“the Rules”).

3. The pre-trial conference was set down for 22 April 2008 for the parties to attend with a view to either settle the matter or defining issues to be referred for trial.

4. The plaintiff's legal practitioners or his representatives failed to turn up.

5. The defendant made an oral application for the dismissal of the plaintiff's claim to the judge in chambers and obtained an order dismissing the claim with costs on the same day.

6. Thereafter, the plaintiff issued fresh summons based on the same cause of action claiming the same relief from the same party under case number HC3349/08. This is the present action.

7. The matter has been set down for trial.

The defendant took exception to a fresh process issued by the plaintiff. He argues that the plaintiff ought to have applied for rescission of the default judgment in terms of either Rule 63 or Rule 449 of the Rules. Without having obtained rescission of the judgment, so the defendant contends, the plaintiff's claim stands dismissed with costs. He contends that the plaintiff is barred from instituting fresh action.

As I understood it, counsel for the defendant is this; since the claim was dismissed in terms of Rule 182(11) the plaintiff cannot, without first obtaining rescission of that judgment, issue fresh process as the dismissal still stands. The only course of action open to a party eager to pursue an action so dismissed is to first to seek rescission in terms of Rule 63 of the Rules.

The plaintiff disputes this contention.

Counsel for the plaintiff figured that Rule 63 was permissive. It gave the plaintiff against whom default judgment was entered two options. The first option was to seek rescission of that default judgment, and, after obtaining it, proceed on the same papers. The second option was to literally abandon those papers and issue fresh ones. So long as the order for costs has been discharged, according to this argument, it is open to the plaintiff to commence fresh action since the dismissal of the action at pre-trial conference stage is akin to absolution from the instance. This interpretation, argued counsel for the plaintiff, accords with the tenor of Rules 59, 59A, 60, 61, 62 and 63.

It seems to me that the defendant's argument should meet with failure for two reasons.

(a) First, the defendant expressly abandoned the special plea of res judicata notwithstanding the fact that the defendant had expressly couched that special plea which he had filed with this court on 20 October 2008 as the basis of the special plea. If this was meant to be just a preliminary objection (which it sounds more like), then the defendant ought to have sought the dismissal of the plaintiff's case as he did, but a stay of proceedings till the plaintiff had paid the costs in terms of the order in HC190/08. See Western Cape Housing Development Board & Another v Parker & Another 2005 (1) SA 462.

(b) Second, the Rules grant the power to the court to enter judgment or make such order as it may think fit depending on the circumstances without hearing evidence. Rules 58, 59, 59A, 60, 61 and 62. It is said in a judgment obtained in this manner amounts to a default judgment.

When the plaintiff had failed to appear in person, or through counsel, for trial or in obedience to the directive, generally an order for dismissal of his claim is entered. Such an order dismissing the plaintiff's claim is, at law, not the judgment for the defendant.

In Munemo v Muswera 1987 (1) ZLR 20 (SC)…, McNALLY JA put the matter this way;

“…,. The judgment relied upon was not the judgment for the plaintiff, nor was it a judgment for the defendant…,. However, the judgment in 1979 was a judgment which read:

'The plaintiff's claim for ejectment is dismissed with costs.'

It is well established that such a judgment is in effect one of absolution from the instance. See Hassan v Billiat SC132-86 (not reported); Bulford v Bob White Service Station (Pvt) Ltd 1972 (2) RLR 224 (AD); Makayiseni v Musarurgwa 1947 SR 160 at 162.

The matter is succinctly put by Hoffman & Zeffertt op cit at p263 in the following words;

'The decree of absolution from the instance (or an order dismissing the plaintiff's claim) is specifically intended to the man the plaintiff to bring another action if he can find a better evidence to support his claim. Absolution can never found a cause for action estoppels.”

The dismissal of the plaintiff's claim, where it is obtained by default, is not as drastic an order as it may sound. In my view, this accords with the rationale of the Rules which is to achieve justice only after each party has had his or her day in court. To hold otherwise would, in my view, subject the procedure to mere technicality without achieving the desired end, which is to do justice between the parties.

It is instructive that in terms of Rule 61 the defendant may obtain an order dismissing the plaintiffs' claims where the plaintiff has been barred from declaring or making a claim. In terms of Rule 62, the defendant may also obtain an order absolving him where the plaintiff makes default of appearance. Both rules use the permissive “may” not the peremptory “shall” to make provision for the options open to the party who has complied with the rules. Similarly, Rule 63 also uses the permissive “may” to confer discretionary power to the court before which the matter is placed. The court is not obliged to give judgment for either party hence in practice the matter is generally dismissed or postponed depending on the force of the application made by the party appearing before it.

Thus, where an order such as the one granted on 22 April 2008, is in issue, it can hardly be said that such an order determined the matter finally. In my view, the plaintiff correctly opted to issue fresh summons, as it was entitled to do, rather than seek rescission of the judgment granted in default.

In the premises, the preliminary issue raised by the defendant is dismissed.

On 23 June 2008, the plaintiff issued summons out of this court against the defendant. After the plaintiff furnished it with the further particulars it requested, the defendant, inter alia, excepted to the summons and declaration on 3 October 2008. The basis of the exception was that the defendant had ceased to exist, both at the time the cause of action arose and at the institution of proceedings.

In his replication filed by his erstwhile legal practitioners, Scanlen & Holderness, the plaintiff averred that the exception was frivolous and ill-conceived, and persisted with his assertion that the defendant was in existence.

It was directed at the pre-trial conference held on 29 May 2009 that the parties were to file heads of argument on the exception which was to be argued and disposed of at the commencement of trial.

On 24 July 2009, the excipient filed heads of argument and the plaintiff did so on 12 August 2009. It is noteworthy that Messrs Scanlen and Holderness renounced agency on 17 December 2009; and Messrs Muringi Kamdefwere, who took over from them, also renounced agency on 24 June 2010. In argument before me, the plaintiff relied on the heads of argument filed on his behalf by his initial legal practitioners.

The issue raised by the exception is whether or not at the time the cause of action arose, and at the time that summons were issued, the defendant was in existence.

Counsel for the excipient contended that the defendant ceased to exist on 23 March 2000.

The plaintiff, on the other hand, contended that the excipient still exists.

The cause of action arose on 2 September 2007 when the plaintiff was a fare–paying passenger in an Air Zimbabwe aircraft enroute from Singapore to Harare.

I shall now proceed to deal with each of the said reasons given by the defendant for rejecting the plaintiff's claim.

1. Plaintiff's summons was invalid as it had not been signed by a Manager or Accountant of the plaintiff in breach of the facility letter

If the above challenge, which, I must say, was never preceded by an exception, is correct, then there are no proceedings before the court. I shall therefore start by examining that challenge from the defendant. The challenge is based on paragraph 14.1 of the facility letter which provides as follows -

“In the event of the Bank taking any proceedings to recover any amount due to it, the amount due to it shall be determined and proved by a certificate signed by the Manager, Accountant Manager or Accountant of this branch of the Bank and such certificate shall be prima facie proof of the amount due by the Borrower and the onus shall be on the Borrower to disprove the accuracy of such certificate.”

I do not believe that the above is a pre-requisite for the issuance of a summons. The certificate referred to is one of the forms through which the plaintiff can support/prove its case. The plaintiff can prove its case through other forms of evidence but the production of such a certificate would strengthen its case (i.e. prima facie proof). It need not, in my view, be part of the summons. I therefore agree with the plaintiff that no issue arises since that certificate is a matter for the plaintiff.

This is an application for a special plea and exception by the defendant.

At the trial, the defendant moved that the court deals with his special plea which he had filed in terms of Order 21 Rule 137(1)(a) of the Rules of Court in the hope that the matter would be disposed at that stage if the plea in bar succeeded….,.

On or about August 2006, the parties entered into an oral agreement in terms of which the plaintiff sold to the defendant a certain dwelling house commonly known as Number 56 Burnside Road, Bulawayo for the sum of US$60,000= payable as follows:

(a) The sum of US$30,000= to be paid in the Zimbabwean Dollar equivalent; and

(b) The balance of US$30,000= to be paid in the equivalent of the South African Rand.

It was an implied term that the defendant would pay the purchase price within a reasonable time from the date of sale. The defendant paid to the plaintiff the following sums of money i.e. Z$17,500,000= and ZAR6,500= as follows:

(a) October 2006 - Z$2,000,000= [equivalent US$2,000= at time].

(b) April 2007 -  Z$5,500,000= [equivalent US$220= at time].

(c) October 2007 – Z$10,000,000= [equivalent US$50= at time].

(d) July 2007 - ZAR4,000=.

(e) September 2007 – ZAR500=.

(f) November 2007 – ZAR500=.

(g) January 2008 – ZAR500=.

(h) March 2008 – ZAR500=.

(i) May 2008 - ZAR500=.

No further payments were made by the defendant since May 2008 despite demand. In June 2008, the plaintiff cancelled the agreement and informed the defendant and demanded that the defendant vacates the house. The defendant did not vacate resulting in the institution of summons by the plaintiff seeking-

(a) An order declaring the Agreement of Sale cancelled or alternatively an order declaring the agreement to be invalid, void ab initio;

(b) The ejectment of the defendant and all those claiming under him;

(c) Damages in the sum of ZAR4,000= per month calculated from 1 September 2006 to date of judgment together with 10% interest; and

(d) Costs of suit.

This is an exception by the defendant to the plaintiff's particulars of claim on the ground that they disclose no cause of action in law.

For the purpose of determining the exception, its basis is the following:

“Submissions in brief

It is submitted that the parties entered into an instalment sale of land, and that if the defendant breached the agreement, as alleged by the plaintiff, by not paying the balance of the purchase price within a reasonable time, then the plaintiff failed to comply with the Contractual Penalties Act, therefore has no actionable right against the defendant.

Submissions in detail

1. Section 7 of the Contractual Penalties Act [Chapter 8:04] states as follows…,.

2. In terms of paragraph 3 of the plaintiff's declaration, there is no dispute that an oral agreement for the sale of land was entered into…,.

3. From paragraph 5 of the plaintiff's declaration it is clear that payment towards the purchase price was made in more than three instalments.

4. Section 8, sub-section (1) of the Contractual Penalties Act, aforementioned, reads as follows…,.

5. ….,.

6. It is clear that in the present matter, the plaintiff did not give the requisite notice in terms of section 8 of the Contractual Penalties Act, and, as such, the plaintiff's purported cancellation of the agreement is null and void, and of no force or effect.

7. See also the case of Preston vs Charuma Blasting & Earthmoving Services (Pvt) Ltd and Anor 1999 (2) ZLR 201 (S) especially at page 203 where SANDURA JA stated as follows:

“In the circumstances, before terminating the sale agreement the appellant was obliged to comply with the provisions of subsections (1) and (2) of section 8 of the Act. In terms of those provisions, he was obliged to call upon the respondent to pay the instalment within thirty days, and would have been entitled to terminate the agreement only if the respondent failed to pay the instalment within that period.”

8. For the foregoing reasons, it is submitted that the plaintiff's action is without merit and it is prayed that it be dismissed with costs and judgment entered in favour of the defendant, declaring the plaintiff's purported cancellation of the agreement between the parties to be invalid and unactionable.”

If there was no alternative claim which seeks to have the agreement declared null and void, I would have upheld the exception on the above-mentioned grounds stated by the excipient i.e. failure to comply with the provisions of section 8(1) of the Contractual Penalties Act [Chapter 8:04] and section 8(2) of the Contractual Penalties Act [Chapter 8:04]).

In casu, the alternative claim gives the matter an entirely different complexion. In the alternative claim, the plaintiff, in his declaration, alleges that the alleged Agreement of Sale does not exist. He pleads as follows -

“The parties' purported agreement of sale is invalid, void ab initio, and therefore of non-effect….,.”

For the Contractual Penalties Act [Chapter 8:04] to be said to apply, there must be proved, at the first instance, that there is a valid agreement. The plaintiff, in its declaration, puts to issue the very existence of such an agreement.

When service was effected on the second defendant, on 23 July 2010, prescription had not begun to run. The service was accordingly valid.

But was he vicariously liable for the accident caused by the negligence of the first defendant?

The second defendant was employed by Martin Senda. He was an employee just like the first defendant - albeit at higher level of manager. One employee cannot be vicariously liable for the delicts of another employee. It is only an employer who is vicariously liable for the delicts of his employee committed during the scope of his employment.

The second defendant was, in the result, wrongly cited.

The exception and special plea in bar succeeds.

It is accordingly ordered that the applicant's claim be and is hereby dismissed with costs on the ordinary scale.

In response to the summons and declaration, the defendants filed a special plea and an exception. The special plea was based on the citation of the first defendant, The Standard, which is the name given to the publication in which the article complained of was published. 

Counsel for the excepient urged that in the event that the exception is upheld the court must strike down the declaration and dismiss the plaintiff's claim on the ground that the case turns upon an interpretation of the article complained of.

The plaintiff did not ask for leave to amend his declaration in the event of the exception being upheld.

The correct procedure where an exception is upheld is not to dismiss the plaintiff's claim as prayed by the defendants, but to grant the plaintiff leave to amend his pleadings if he is so advised. See RM Insurance Co (Pvt) Ltd v GCM (Pvt) Ltd 1993 (2) ZLR 407(S)….,; Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)….,; Taylor & Anor v Chavunduka & Ors 1995 (2) ZLR 22 (H)…,.

1.….,.

The respondent also submitted that the issue of res judicata had been improperly raised by the applicant as it was only raised in the answering affidavit.

Prescription goes to the root of a claim or defence.

In order to bring an exception within Rule 223(3) for set down on the opposed roll, the matter must be opposed. Rule 223(2) provides:

“Set down of other matters on notice

(1) …,.

(2) Subject to subrr (3), (4), (5) and r238, exceptions, applications to strike out and other applications which are opposed shall be set down for hearing –

(a) …,.”…,.

The Rule uses the words “which are opposed”. This can only be known to the Registrar and the other party if intimation of such opposition has been given. These words also suggest that matters which are not opposed are set down in terms of a different Rule altogether. My view is that the drafters of the Rules could not have intended that every exception be set down in terms of Rule 138 as an opposed matter. This would lead to an absurdity which would adversely interfere with the administration of justice. The Rules have provided for an avenue or mechanism to speedily allow matters that are unopposed to be dealt with. Such matters can be set down in terms of Rule 223(1) on unopposed applications.

The respondents were therefore correct in setting the matter down on the unopposed roll.

It must be appreciated that rules are practical ones for the proper administration of the courts and a court must never be a slave of its own rules. See Scottish Rhodesian Ltd v Honiball 1973 (2) SA 747 (R) where BECK J…, said….,.:

“The Rules of court are not laws of the Medes and Persian and in suitable cases the court will not suffer sensible arrangements between the parties to be sacrificed on the alter of slavish obedience to the letter of Rules.”

See also Nxasana v Minister of Justice & Anor 1976 (3) SA 74 S (D)…., where DIDCOTT J stated:

“The rules, after all, are the court's tools, fashioned for its own use. They are more flexible, and more easily adapted to meet particular needs, than a statute can ever be.”

Sentiments to the same effect were expressed by WINSEN AJA…., in Federated Trust Ltd v Botha 1978 (3) SA 645 A…, when he said:

“The court does not encourage formalism in the application of the rules. These rules are not an end in themselves to be observed for their own sake. They are provided to secure the inexpensive and expeditious completion of litigation before the courts.”

In their plea, filed of record on 13 October 2011, the defendants raised a plea in bar against the second plaintiff; that it was not a locally registered company, it was a peregrine and needed to found jurisdiction in Zimbabwe by providing security for costs….,.

At the hearing of the matter, a Certificate of Incorporation, number 27838/2008, tendered on behalf of the second plaintiff, disposed of the first issue for determination at trial.

The first defendant is a peregrinus whose address is given in the summons as Bracken Gardens Alrode, Johannesburg, South Africa. The said company does not have property located within the Zimbabwean jurisdiction but has haulage trucks which ply Zimbabwean routes on commercial deliveries in Zambia. On 30 April 2009, the plaintiff instituted summons action out of this court against the first defendant and the second defendant which is also a peregrinus of South Africa origins.

The plaintiff claimed the replacement of its Toyota Hilux motor vehicle and a trailer damaged as a result of a collision with the first defendant's haulage truck on 18 August 2007. He also claimed certain damages which arose as a result of the same accident.

At the time the summons was issued, the plaintiff had not obtained a court order for attachment of the first defendant's property to confirm or found jurisdiction against the peregrine defendants. It was not until the 9th June 2009, almost 11/2 months after the summons was issued, that the plaintiff filed an application in this court seeking an order for attachment of property to found jurisdiction and it was not until the 30th June 2009, exactly 2 months after the summons had been issued, that the order of attachment of property was granted by NDOU J under case no. HC879/09. The said order reads, in part, as follows:

''IT IS ORDERED:

1. That the Deputy Sheriff be and is hereby authorised and directed to impound any of the 1^st respondent's vehicles crossing the border into Zimbabwe, or already in Zimbabwe, in order to found jurisdiction.

2. That the Deputy Sheriff shall retain the vehicle so impounded until litigation in the matter no. HC672/09 is finalised.

3. That 1^st and 2^nd respondents pay the storage charges for the vehicle jointly and severally the one paying the other to be absolved.

4. That 1^st and 2^nd respondents pay the costs of this application on an ordinary scale jointly and severally the one paying the other to be absolved.”

The Deputy Sheriff for Beitbridge effected service of the summons on the first defendant's driver at Beitbridge Border Post on 12 July 2009, and in pursuance of the order for attachment, he attached an International Truck registration number LRP 232 GP and a trailer registration number TXL 411 GP belonging to the first defendant.

This was for purposes of founding jurisdiction when the summons in the matter had already been issued out.

The attachment of the vehicle and trailer forced the first defendant to file an urgent chamber application (HC1169/09) on 24 July 2009 seeking an order for the release of the vehicle. The matter was later amicably resolved and an order granted by consent on 31 July 2009 for the release of the truck and trailer against a payment of $3,000= to the plaintiff's legal practitioners in order to confirm jurisdiction.

On 17 November 2009, the first defendant excepted to the Summons and Declaration on the following grounds:

''1. The Plaintiff's Summons and Declaration, under case no. HC672/2009, is an invalid process and therefore null and void in that the summons was issued and sent for service against the first Defendant, who is a peregrinus before the Plaintiff had obtained an order of attachment to found or confirm jurisdiction.

2. It is submitted that the order of attachment granted by the Honuorable Mr Justice Ndou on 30^th June 2009 to found jurisdiction did not serve to validate the summons and Declaration issued earlier on under case no. HC672/2009 as the granting of the attachment order is a condition precedent to the issue of process.

3. Further, and in any event, the order for attachment granted by the Hounourable Mr Justice Ndou as abovestated is invalid as it ordered the attachment of First Defendant's property which was not within the jurisdiction of the courts of Zimbabwe at the time that the order was granted.''

The first defendant, as excipient, prays that the summons be struck down by reason of invalidity and that the money paid to the plaintiff's legal practitioners for security be refunded.

In response to the exception, the plaintiff stated that the exception is without merit by reason that:

1. The cause of action arose within the jurisdiction of this court;

2. The summons could not be served on the first respondent because it and its assets are located outside the jurisdiction of this court;

3. An application for attachment was made to facilitate service of summons which attachment ''found and confirmed'' jurisdiction and therefore the order for attachment was not validating the summons which was already valid.

Counsel for the excepient has argued that to the extent that the summons was issued before an order for attachment was sought and obtained such summons is invalid and of no legal effect. He has cited the persuasive authority of the learned authors HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts of South Africa, the 3^rd Edition (1979) of which reads….,:

“An attachment ad fundandam jurisdictionem is an attachment of the person or property of one who is domiciled and resident in a foreign country in order to make him amenable to the jurisdiction of the court. His person or property can only be attached while he or it is within the jurisdiction of the court out of which the attachment order is issued, and the effect of the attachment order is either to confirm the jurisdiction which the court already has in the suit between the parties, or in certain cases, to afford it a jurisdiction in the matter which it would not other wise have had.''

At 788 the learned authors state:

''Where an incola wishes to sue a peregrinus and none of the usual grounds upon which the court might have jurisdiction is present, attachment is a condition precedent to the action for it is upon the attachment that the court's jurisdiction is founded.''

They go on at 789:

''In addition to the grounds mentioned by De VILLIERS CJ, quoted above, a court will have jurisdiction to try a suit arising out of a delict committed within the area of its jurisdiction, whether the suit be between an incola and a peregrinus or between two peregrini. But in this case, too, attachment is a condition precedent to an action. But in an action ex delicto, a peregrinus cannot obtain an attachment where none of the ordinary grounds of jurisdiction exists.''….,.

Counsel for the plaintiff has argued that these authorities should be ignored as they are archaic and that the position of our law is governed by section 15 of the High Court Act [Chapter 7:06].

I agree with counsel for the plaintiff that the position in regard to attachment to found or confirm jurisdiction in Zimbabwe is now clearly governed by statute. I, however, disagree that the issue of summons must precede the authority to be granted by the court to sue a peregrinus either by edict or by attachment. Section 15 of the High Court Act [Chapter 7:06], relied upon by counsel for the plaintiff, provides:

''In any case in which the High Court may exercise jurisdiction founded on or confirmed by the arrest of any person or the attachment of any property, the High Court may permit or direct the issue of process, within such period as the court may specify, for service either in or outside Zimbabwe without ordering such arrest or attachment if the High Court is satisfied that the person or property concerned is within Zimbabwe and is capable of being arrested or attached and the jurisdiction of the High Court in this matter shall be founded or confirmed as the case may be, by the issue of such process.''…,.

That provision did not discharge the plaintiff from the burden of having to satisfy the court, before the issue of process, that the peregrinus was present within Zimbabwe for arrest or had property within the country capable of attachment. Monarch Steel (1991) (Pvt) Ltd v Fourway Haulage (Pty) Ltd 1997 (2) ZLR 342…, and ClanTransport Co. (Pvt) Ltd  v Govt of the Republic of Mozambique 1993 (3) SA 795 (Z)…,.

In Stanmarker Mining (Pvt) Ltd v Metallon Corp Ltd & Others 2003 (1) ZLR 389…, CHINHENGO J stated:

“It must be clear from the above remarks that s15 of the High Court Act does not dispense with the need to show that the court has jurisdiction which may be founded or confirmed by the attachment of property or the arrest of the defendant. That is the single issue which the applicant had to deal with before he could obtain other associated relief.''

At the time the summons was issued, on 30 April 2009, neither the first defendant nor its property were located in Zimbabwe. In addition, no authority or permission had been obtained from the court to issue the process. Perhaps it was upon a realisation of that glaring omission that counsel for the plaintiff desperately tried to stretch the meaning of the word ''court'' as used in section 15 of the High Court Act [Chapter 7:06] to include the Registrar of the High Court, who issues the process, and sought to argue that by issuing the process the Registrar had permitted and directed its issue without an order for attachment.

There is no way the word ''court'' in that section can be interpreted to include the Registrar. There is no way a summons can be lawfully sued out against a peregrine defendant without the leave of the court. Where such summons is issued, it is clearly invalid and of no legal effect.

I now turn to deal with the effect of the attachment order issued by NDOU J on 30 June 2009.

In his application for an attachment order, the applicant disclosed that he had issued summons against the defendants, under case no. HC672/09, for damages and that he wanted ''an order for the impoundment of 1^st respondent's truck when it comes into Zimbabwe to found jurisdiction.'' The court was persuaded by the application and granted the order cited….,.  Clearly, that order was granted in error as the plaintiff (applicant in HC879/09) had not discharged the onus that either the first defendant or its property was present within the territorial jurisdiction of Zimbabwe and therefore capable of attachment or arrest. In addition, no permission had been sought and granted as provided for in section 15 of the High Court Act [Chapter 7:06] to issue summons; the said summons having been issued without leave.

It is significant that NDOU J's order of 30 June 2009 did not grant such permission, even in retrospect, which could not be done, as attachment or the existence of the defendant or his property within Zimbabwe is a condition precedent to the issue of process.

In the absence of the defendant and/or its property within Zimbabwe, the order made on 30 June 2010 was a nullity. In Ngani v Mbanje & Anor 1987 (2) ZLR 111 (S), the Supreme Court, per KORSAH JA, pronounced categorically that if legal process is instituted based on a cause of action which has not yet accrued it is a nullity and a default judgment granted on the non-existent cause of action is void and of no effect . At 114 G-H and 115A the learned Judge of Appeal said:

''If at the time action was instituted, a right of action had not accrued to the plaintiff or applicant, as the case may be, then no cause of action is established by the initiating process. Put another way, the plaintiff or applicant should at or before filing the initiating process, have a complete cause of action against the defendant or respondent.''

The court went on, at 115 D-F, to state:

''This objection in limine is, in my view, not a mere technical point affecting some provision of adjectival law; it strikes at the very root of the action. It is so fundamental as to render the initiating process a nullity. If there is no cause of action then a judgment pronouncing that a non-existent cause exists is void and of no effect. As LORD DENNING observed in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721;

'If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there.  It will collapse. So will this judgment collapse if the statement of claim was a nullity.'''

See also Heating Elements Engineering (Pvt) Ltd v Eastern & Southern Africa Trade & Development Bank 2002 (Z) (I) ZLR 351 (S)…,.

In light of the fact that there was no property belonging to the peregrini defendant located in Zimbabwe at the time the order for attachment was made that order was a nullity. To that extent, everything which flowed from it including, the service of the summons and the purported attachment of the first defendant's property, was a nullity. To the extent that the settlement of the parties, confirmed by order of CHEDA J, dated 31 July 2009, was predicated on a nullity, it was also a nullity and no legal rights arose from that adventure.

I therefore intend to set aside that order in terms of Rule 449(1) of the High Court Rules. In the result, I make the following order to wit that:

1. The exception by the first defendant be and is hereby upheld.

2. The plaintiff's summons and declaration be and are hereby struck down as invalid.

3. The order for attachment issued on 30 June 2009, under case No. HC879/2009, was issued in error in the absence of the first defendant or its property within the jurisdiction of the court and is therefore null and void.

4. The plaintiff should refund the sum of US$3,000= to the first defendant which was paid as security to his legal practitioners in pursuance of the settlement reached in case no. HC1169/2009.

5. The plaintiff shall bear the costs of suit.

The parties in this matter appeared before the Honourable NDOU J on the 4^th September 2012 for a Pre-trial Conference under case no.HC2104/10. It was agreed that the matters under case no.2104/10 and HC2734/10 be consolidated and heard together.

In case no. HC2104/10, the parties were Nuglo Investments (Pvt) Ltd being the applicant and the respondent is Irene King t/a Kings Auction Centre. This matter, which had commenced as a Court Application, was referred to trial on the 20^th of June 2011 after both parties agreed that the matter could not be resolved on the papers. The parties proceeded to file their pleadings up to Pre-Trial stage when the matter was then consolidated with case no. HC2734/10. On the other hand, the parties under case no. HC2734/10 were Sammy's Group (Pvt) Ltd t/a as Kings Auction as the plaintiff, and John Bourcher Meyburgh (NO), Nuglo Investments (Pvt) Ltd, CW Electrical (Pvt) Ltd and Registrar of Deeds were 1^st, 2^nd, 3^rd and 4^th defendants respectively.

It is noted that at the time the two matters were consolidated, both parties overlooked the fact that pleadings under case no. HC2734/10 were not complete in that there was no Pre-Trial memorandum of issues, and, further, the parties had both not filed their Synopsis of Evidence. This meant that for the purpose of trial, the issues for determination were not set out in that particular matter.

I resolved, with the consent of both counsel for the plaintiff and defendants…, that we hear submissions, first, on the Exception and Special Plea filed by the first and second defendants under case no. 2734/10 before hearing evidence on the merits in the consolidated cases.

This judgment therefore deals with the Exception and Special Plea….,.

The plaintiff sought to argue that the second defendant filed the exception to the plaintiff's summons and declaration outside the time limits stipulated in the Rules in that the papers were filed five and half months after the plaintiff's Further Particulars were served on the second defendant.

Order 18 Rule 119 provides as follows:

“The Defendant shall file his plea, exception or special plea within ten days of the service of the Plaintiff's declaration:

Provided that where the Plaintiff has served his declaration with the summons as provided for in Rule 113 there shall be added to the period of ten days above referred to the time allowed a defendant to enter appearance is calculated in terms of Rule 17.”

It is beyond argument that the Rules do not provide for an automatic bar against a defendant who files an exception outside the prescribed time limits. In any event, the plaintiff did confirm that the first defendant's Notice of Exception was timeously filed. The first defendant also pleaded over the merits and the same matters raised in the first defendant's exception relate to the same issues which fall for determination in the exception.

The plaintiff sued the first defendant, who is the excipient in this matter, and two (2) police officers, the second and third defendants, as well as the co-ministers of Home Affairs, for damages in the sum of US$150,000= arising out of her arrest and detention on charges under the Children's Act [Chapter 5:06].

In her declaration, the plaintiff averred that on an unknown date, the first defendant made a false report, or caused a false report to be made, to Marlborough Police to the effect that the plaintiff had neglected her minor daughters in breach of the law. As a result of that false report, the plaintiff was arrested and subsequently made court appearances but the State subsequently withdrew the charges levelled against her. She then prayed for damages, aforesaid, arising out of the unlawful deprivation of liberty, pain, suffering, contumelia and humiliation.

There is nothing in the record to suggest that any complaint was made by the first defendant against that pleading as provided for in Rule 140(1)(b) of the High Court of Zimbabwe Rules, 1971. However, the first defendant has excepted to the summons as follows:

“The first defendant excepts to the plaintiff's summons, as read with her particulars, as being wrong and bad in law in that it does not disclose a valid cause of action. More particularly that:

1. The summons does not disclose a true and concise statement of the nature, extent and grounds of the cause of action as required by law; and

Counsel for the plaintiff's first argument was that an objection on locus standi should have been raised as a special plea in the proceedings as is required in terms of Rule 137. He argued that because the special plea was not raised in the pleadings the objection should be dismissed.

He also argued that in terms of Rule 139 a party is required to state all his special pleas and exceptions and make all his applications to strike at one time. Counsel for the plaintiff argued that the failure by the defendants to comply with these two Rules warrant the dismissal of their point in limine. He said that it did not matter that the plaintiff was placed in liquidation after the pre-trial conference had been held. He argued that the fact that liquidation happened after the pre-trial conference had been held would have been the basis for the defendants to seek condonation for non-compliance with Rule 137 and Rule 139….,.

The cause of action which gave rise to the defendants raising the point in limine arose after pleadings in the case had been closed. Even the pre-trial conference had been held. It defies all logic for anyone to argue that the defendants should have raised the issue of locus standi at the time they pleaded to the plaintiff's claim. This is a case where clearly Rules 137 and 139 are not applicable. I do not even see why the defendants would need to seek condonation in order to raise this issue of locus standi. There is no basis whatsoever for the defendants to seek condonation because the plaintiff was only placed in liquidation after the pre-trial conference had been held but before trial had commenced. As such, the date of the trial was the proper forum for the defendants to raise their objection.

In any case, the objection is based on a point of law and a point of law can be raised at any stage of proceedings.

The exception was three-pronged.

Firstly, the respondents alleged that the agreement between Benjamin Sibindi and their late father was invalid and unenforceable because it was not sanctioned in writing by the City of Bulawayo as required by clause 12 of the Agreement their late father and the City of Bulawayo signed. Clause 12 of the Agreement signed by their father on 21 April 1981 stipulated thus:-

“The purchaser shall not, at any time before the said piece of land has been transferred into his name, sell the said piece of land or cede, assign, transfer or make over any of his rights under this agreement without the written consent of the municipality.”

It is now common ground that the City of Bulawayo did not give its consent, in writing, to the defendants' father to sell the property to Benjamin Sibindi. It is also common cause that their father died before he took transfer of the property. The property still belonged to the City of Bulawayo. The agreement would only have been enforceable if the father of the defendants had taken transfer. But no transfer had been effected. 

DEFENDANT'S SPECIAL PLEA IN BAR

After receiving the plaintiffs' claims, the defendant filed its special plea in bar of the claim. It denied that it was obliged to pay the plaintiffs either in contract or in delict.

The defendant stated that it was a political association with its headquarters in Zimbabwe and was accordingly a Zimbabwean based association.

It stated that the contract alleged by the plaintiffs would have been tainted with illegality for want of compliance with the Exchange Control Act [Chapter 22:05] as read with the Exchange Control Regulations, 1996 contained in Statutory Instrument 109 of 1996, as the alleged contract would have required payment to be made by the defendant to the first plaintiff outside Zimbabwe. The defendant did not have any free funds nor did it then hold any money in a foreign currency account. It was contended that the alleged contract was void for illegality and the plaintiff's claims ex contracti should be dismissed….,.

PLAINTIFFS' REPLICATION TO DEFENDANT'S SPECIAL PLEA IN BAR

The plaintiffs alleged that the defendant's denial of an obligation “in delict” was vague and embarrassing, superfluous, disclosed no offence (sic) and was itself excipiable by reason of the fact that the plaintiffs had not claimed in delict. In any event, the defendant's denial of a contracted obligation was vague and embarrassing to the plaintiffs given that such denial avoids traversal of the alternative claim based on the general action against unjust enrichment. The said vague traversal allegedly militated against Rule 104(4) of the Rules of this Court which stipulated that a party denying an allegation shall not do so evasively but shall answer the point of substance.

The plaintiffs claim that, as a political party, the defendant had access to external donor funds at the material time.

They went on to allege that the illegality was not a matter to be raised by special plea and denied that the contract was illegal for want of compliance with the Exchange Control Regulations of 1996, published in S.I.109 of 1996, more particularly, inter alia, by reason of section 45 thereof, and more particularized by the plaintiffs; the defendant had allegedly agreed that the first plaintiff would be an ad stipulator, hence the defendant could not raise a contrary stance.

As the payment was at the defendant's express request and behest, as particularized in the declaration and further particulars, the defendant was estopped from asserting to the contrary. It was averred that the legality or otherwise of the contract was a matter of law. It was further denied that the contract was void for illegality and was averred that the defendant could not approbate and reprobate the existence of the contract, by denying its existence, and, simultaneously, purporting a challenge its legality.

In the result, it was prayed that at the hearing of evidence on the special plea, it be dismissed with costs on the Law Society Tariff….,.

I now turn to deal with the defendant's special plea in bar as provided for in Order 21 Rule 137(1)(a) of the High Court Rules and recites as follows:-

“137 Alternatives to pleading to merits:

(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.”

What comes out from the above is that the requirements of a special plea are that:-

(a) The matter must be one of substance;

(b) Which does not involve going into the merits of the case; and

(c) If allowed, disposes of the case.

In the case of Brown v Vlok 1925 AD 56 which was quoted in George v Lewe and Another 1936 CPD 402…, INNES CJ had this to say:-

“Now, a plea in bar is one which, apart from the merits, raises some special defence not apparent from the declaration – for, in that case it would be taken by way of exception – which either destroys or postpones the operation of the cause of action.”

The plea in bar is not predicated on a denial of any facts set out in the declaration as that would involve going into the merits of the case made by the plaintiffs in their declaration. The plea proceeds on the basis that the allegations in the plaintiffs' declaration are correct but should, nevertheless, be disposed of for one reason or another that does not appear ex facie the pleadings. In Scuddingh v Vitenhage Municipality 1937 CPD 113, the court had this to say in respect of a plea in bar…,:-

“It (a special plea) is the type of plea the object of which is to avoid the necessity of going into the merits of the plaintiff's claim because of the existence of certain circumstances not apparent from the declaration which either bar or postpone the claim made.”

The courts have stated repeatedly that the purpose of a special plea is to permit the defendant to achieve a prompt resolution of a factual issue which founds a legal argument which disposes of the plaintiffs' claim as called for by Rule 137(1)(a)…,. See, for instance, Doelcam (Pvt) Ltd v Pitchamick and Others 1999 (1) ZLR 390.

The issue that the defendant raised in this matter is that of illegality; in that the plaintiffs were attempting to enforce a contract tainted with illegality for want of compliance with the Exchange Control Act [Chapter 22:05] as read with the Exchange Control Regulations, 1996 contained in Statutory Instrument 109 of 1996 as the contract would have required payment to be made by the defendant to the first plaintiff outside Zimbabwe.

Ideally, a plea of illegality should be raised before the trial and not in limine as stated in Abreu v Campos 1975 (1) RLR 198…,. In Adler v Elliot 1988 (2) ZLR 283 (S), illegality was raised as an exception as it appeared on the papers. Illegality was also raised as an exception that the summons disclosed no cause of action in the case of York Estate Ltd v Wareham 1950 (1) 3A 125 (SR) where the summons had set out the factual basis that was then used to argue the point of illegality. In Barker v African Homesteads Touring and Safaris (Pvt) Ltd and Anor 2003 (2) ZLR 6 (S), illegality for contravening section 8 (now section 11) of the Exchange Control Regulations, raised in limine, was upheld both by the High Court and an appeal in the Supreme Court resulting in the plaintiffs' claim being dismissed.

Consequently, the submission by the plaintiffs that illegality should not have been raised as a special plea and can only be raised on the merits is clearly untenable.

The relevant provisions of the Exchange Control Regulations of 1996 recite thus:

“10(1) Unless otherwise authorized by an exchange control authority, no person shall, in Zimbabwe –

(a) Make any payment to or for the credit of a foreign resident; or

(b) …,.; or

(c) Place any money to the credit of a foreign resident; or

(d) …,.”

Section 11 of the Exchange Control Regulations of 1996 provides as follows:-

“11(1) Subject to subsection (2), unless otherwise authorized by an exchange control authority, no Zimbabwean resident shall:-

(a) Make any payment outside Zimbabwe; or

(b) Incur any obligation to make a payment outside Zimbabwe.

(2) Subsection (1) shall not apply to –

(a) Any act done by an individual with free funds which were available to him at the time of the act concerned; or

(b) Any lawful transaction with money in a foreign currency account.”

It is common cause that the first plaintiff, Cabat Trade & Finance (Pvt) Ltd is a foreign resident.

The transaction which entailed making a payment to it contravened the provisions of section 10(1)(a) and (c) of the Exchange Control Regulations of 1996. The transaction does not end there in its contravention of the Exchange Control Regulations of 1996 but further violates section 11(1)(a) and (b) of the Exchange Control Regulations of 1996 in that the defendant is not an individual but a political association with locus standi and power to sue and to be sued with its headquarters in Zimbabwe and is therefore a Zimbabwean resident. Similarly, the first plaintiff is not an individual but a company incorporated with limited liability according to the laws of the Republic of South Africa. It is therefore a South African resident – a foreign resident.

The contract entailed making payment by the respondent or placing any money to the credit of the foreign resident, the first plaintiff, in violation of section 10(1)(a) and (c) of the Exchange Control Regulations of 1996.

The first plaintiff cannot have recourse to the provisions of section 11(2)(a) of the Exchange Control Regulations of 1996 as those provisions are only available to individuals with free funds which were available at the time of the act concerned not companies and political associations. In Barker v African Homesteads Touring and Safaris (Pvt) Ltd and Anor 2003 (2) ZLR (S), the Supreme Court held that violation of section 11(1)(a) and (b) of the Exchange Control Regulations of 1996 as read with section 11(2) of the Exchange Control Regulations of 1996 barred both actual payment and an agreement to make payment outside Zimbabwe without authorization by the Exchange Control Authority, except where that was done by an individual with free funds available to him or her at the time of the act concerned. In the absence of such authorization, the court held the contract illegal and unenforceable. Hence, both the making of the contract and the performance undertaken were unlawful. SANDURA JA…, had this to say:-

“In the present case, as the alleged agreement to pay the sum of $32,500= to Barker in Australia had not been authorized by the Exchange Control Authority, cadit questio. That is the end of the matter.  The agreement is illegal and unenforceable.”

The above applies with equal force in casu as the agreement to pay the sum of ZAR4,965,723= together with interest at 8% per annum from 17 April 2008 to the date of final payment to Cabat Trade & Finance (Pvt) Ltd in South Africa had not been authorized by the Exchange Control Authority

It is illegal and unenforceable….,.

In the light of the foregoing, I would allow the plea in bar which disposes of the case. 

The need to deal with the defendant's exception, the plaintiffs' exception to the defendant's exception and plaintiffs' application to strike out does not arise.

The applicant was a candidate for the National Assembly seat for Tsholotsho North constituency in Matabeleland North Province in the Harmonised General Elections held on 31st July 2013 as a nominee of ZANU (PF). The respondent was declared winner of the National Assembly election in respect of the said constituency. She stood in the election as a candidate for the MDC(T) party.

The applicant was not satisfied with the outcome of the election, and, accordingly, on 1st August 2013, filed a Petition in terms of section 167 of the Electoral Act [Chapter 2:13], hereinafter referred to as the “Act”.

The Petition filed by the applicant is couched in the following terms:

“BE PLEASED TO TAKE NOTICE THAT the Petitioner hereby petitions the Electoral Court for an Order in terms of the Draft annexed hereto on the grounds that:

1. The Petitioner was a candidate in the National Assembly Election for the Tsholotsho North Constituency on the 31st July 2013.

2. That the 9th Respondent was returned as the National Assembly member for Tsholotsho North in that election and this return was improper and irregular for the reasons detailed in the annexed affidavit.

3. The combination of electoral malpractices and irregularities highlighted in the annexed affidavit render the election null and void or voidable as the court may deem appropriate.

TAKE NOTICE FURTHER THAT, the accompanying affidavit and supporting documents are tendered in support of this application and should be read as specifically forming part of this notice.”

The applicant prayed that this court grants him relief in the Draft Order, in the following terms:-

“1. The 9th Respondent was not duly elected as the representative of Tsholotsho North Constituency as declared on 1st August 2013 by the First Respondent.

2. That the said election be and is hereby set aside and that a bi-election be held within 90 days of this order.

3. That the voters roll for Ward 22 and 9 of Tsholotsho North Constituency be rectified to reflect voters resident in these wards prior to the election referrein herein.

4. That the Registrar of this Honourable Court duly communicate this court's order to the Speaker of Parliament.

5. That the Respondent's jointly and severally pay the costs of this application.”

Pursuant to the filing and service of the Electoral Petition upon the nine Respondents, the first to sixth respondents filed an exception to the Petition on the grounds of mis-joinder in that the citation of the first to sixth respondents was contrary to the provisions of Part XXII and section 166 of the Electoral Act. 

The applicant subsequently withdrew all actions against the first to eighth respondents, leaving the ninth respondent, who is now the only respondent in this action.

Whether the court misdirected itself in determining the exceptions on facts and evidence not found within the pleadings excepted to

In arriving at its decision on the exceptions, the court said…,:

“I am satisfied that the Plaintiff's claims are vague and embarrassing and do not disclose a cause of action for these reasons:

1. There is no evidence that the Plaintiff and second defendant entered into a lease agreement in respect of Stand 1396 Bulawayo Township.

2. There is no evidence to support the assertion that at the time Auction Centre (Pvt) Ltd entered into a lease agreement with the Plaintiff, Mr Elston was mandated to represent second defendant.

3. There is no legal basis for the assertion that the sale of shares in second Defendant amounted to the sale of the immovable property in dispute….,.

4….,.

5…,.

6. The defects in the plaintiff's claim, as particularized in the declaration, cannot be cured by amendment.”…,.

The italicized words clearly show that the court relied on evidence outside the four corners of the impugned pleading in arriving at its determination on the matter. In that connection it was submitted by the appellant, in its heads of argument, that:

“46.. In summarizing its judgment, the court a quo held that there was no evidence of a lease agreement in respect of the immovable property, and, further, that there was no evidence to show that Mr Elston was mandated to represent the second defendant.

47. With due respect, the court a quo should have confined itself to the four corners of the pleading excepted to as it was obliged to do in terms of the law and Rule 137(1) of the High Court Rules.

48. The court was dealing with allegations made in the summons and declaration and the court was required to make a decision as to whether such allegations were vague and embarrassing and disclosed no cause of action.

49. No evidence had been led at that stage, and, in any event, one cannot plead evidence. In arriving at its judgment, the court a quo wrongly considered the submissions made on the merits by the parties in case number HC2104/10 which submissions touched on the merits, and, as a result, mixed up issues to be decided.

50. With all due respect, the mixing up of the issues to be decided resulted in the court a quo making a final decision on the merits without any evidence being led by the Appellant in violation of the audi alteram partem rule.”

That the court a quo relied on the evidence contained in HC2104/10 is also apparent from the following passage which appears at page 6 of the cyclostyled judgment…,:-

“In both papers under case No. HC2734/10 and HC2104/10, the plaintiff alleges that it entered into a lease agreement with the 2nd defendant which subsequently granted it the right of first refusal. Herein lies the problem.

The lease agreement referred to was in fact between the plaintiff and Auction Centre (Pvt) Ltd. At no stage did the plaintiff deal with the late Graham Leonard Elston in his capacity as representing the 2nd defendant. Indeed, from the papers, it is clear that plaintiff was not even aware of the existence of the 2nd defendant until after the death of Mr Elston. It follows, therefore, that if at all Mr Elston gave a right of first refusal, he did so either in his personal capacity or as an officer of Auction Centre (Pvt) Ltd, in which case such right was of no force and effect as neither Mr Elston nor Auction Centre had the mandate to grant a right over the property which they did not own. The fact that Mr Elston may have thought that he owned the property in his personal capacity or through Auction Centre (Pvt) Ltd does not assist the plaintiff as the court must look at the facts and the circumstances surrounding the transaction. See Felisano Khumalo v Lizzie Mandeya and Bulawayo City Council 2008 (2) ZLR 203 (S) where MALABA JA held that even when the parties purported to be selling each other immovable property when in fact they were selling each other rights in the property the court had to look beyond that as agreeing with the parties could accord no legal effect at all to a nullity.”…,.

The court a quo had before it, and took into consideration, the affidavits of evidence contained in the court application (H.C.2104/10).

For the purposes of an exception, no facts (except agreed facts) may be adduced by either party and an exception may thus only be taken when the defect objected against appears ex facie the pleading itself . See HERBSTEIN & VAN WINSEN, The Civil Practice of the High Courts of South Africa 5th ed Vol 1…,.  

Nor can the court rely on any facts or evidence not contained within the pleading excepted to.

In this instance, the need felt by the court a quo to rely on evidence outside the pleading points to the fact that a proper decision on the exception was bound with the merits of the dispute and a trial of the issues was therefore imperative.

In adopting the procedure that it did, namely, relying on evidence outside the pleadings and basing its conclusion on the lack of evidence on the issues to be determined without hearing the appellant, the court a quo effectively deprived the appellant of the opportunity to lead evidence on the matters which were taken into account in arriving at its decision in the matter. Since the parties were ready for trial, the proper course was to conduct a trial in order to determine the merits of the matter and the court erred in failing to do so.

Whether or not the court erred in dismissing the appellant's claim without affording it an opportunity to amend the offending pleadings

The order of the court a quo reads as follows:

“(1) The first and second defendants' exception and special plea be and are hereby upheld.

(2) The Plaintiff's claims are dismissed with costs.”

Dealing, firstly, with paragraph (1) of the order, it was submitted by the appellant that the court erred in upholding the first and second respondents' exception and special plea when the first respondent did not file a special plea. It was submitted that in view of the fact that only the second respondent filed a special plea, the court a quo ought to have separately stated the orders granted to each respondent since their pleadings were filed separately.

I agree.

A party ought not to be granted relief on an application that it did not make particularly where the grant of such relief is to the detriment or prejudice of the opposing party.

Additionally, and more substantially, it was submitted that the issue of lis alibi pendens was not an issue at the date of the trial and the special plea ought not to have been upheld.

That submission is also valid.

The so-called lis pendens (Case No. HC2104/10) relates to a court application by the second respondent for the eviction of Irene King trading as Kings Auction Centre, and is the very matter which was consolidated with the appellant's claim (at pre-trial conference stage apparently, on 4 September 2012) in the present matter for trial. A notice of set down, by consent, issued by the High Court on 20 February 2013 and signed by the legal representatives of all the parties' states:

“TAKE NOTICE THAT the above mentioned matters, namely H.C. 2104/2010 and H.C. 2734/2010 which were consolidated at the Pre-Trial Conference stage, be and are hereby set down for trial on Thursday and Friday 21 and 22 March 2013 respectively at 10a.m. on both dates.”

There was, in fact, no lis pendens since the two matters were consolidated for purposes of trial. The special plea could not, for this reason, succeed.

In any event, nowhere in the judgment does the court deal with the merits of the special plea and the impression is gained that no thought was given to the matter which renders wrong the upholding of the special plea when it was not considered.

As to para (2) of the Order, the general practice where a court upholds an exception is not to dismiss the plaintiff's action but to order that the offending pleading be set aside and the plaintiff be given leave to file an amended pleading, if so advised, within a certain period of time. The following passage from ERASMUS, Superior Court Practice…, is instructive:-

“Where the exception is successful, the proper course is for the court to uphold it. When an exception is upheld, it is the pleading to which exception is taken which is destroyed. The remainder of the edifice does not crumble…,. The upholding of an exception to a declaration or a combined summons does not, therefore, carry with it the dismissal of the action. The unsuccessful party may then apply for leave to amend his pleading. It is, in fact, the invariable practice of the courts in cases where an exception has been taken to an initial pleading that it discloses no cause of action, to order that the pleading be set aside and the plaintiff be given leave, if so advised, to file an amended pleading within a certain period of time. It has been held that it is doubtful whether this practice brooks of any departure; in the rare case in which a departure may be permissible, the court should give reasons for the departure. This practice a fortiori applies where an exception is granted on the ground that the pleading is vague and embarrassing, a ground which strikes at the formulation of the cause of action and not its legal validity.

Leave to amend is often granted irrespective as to whether or not at the hearing of the argument on the exception the plaintiff applied for such leave. Where the court does not grant leave to amend when making an order setting aside the pleading, the plaintiff is entitled to make such application when judgment setting aside the pleading has been delivered.”

In Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593A…, the court said the following:

“As far as I am aware, in cases where an exception has been successfully been taken to a plaintiff's initial pleading, whether it be a declaration or the further particulars of a combined summons, on the ground that it discloses no cause of action, the invariable practice of our Courts has been to order that the pleading be set aside and that the plaintiff be given leave, if so advised, to file an amended pleading within a certain period of time.”

The reason given by the court a quo for its denial of leave to the appellant to amend its pleadings was that it found that the appellant's claims were “so incurably bad that it would, in [its] view, be undesirable to grant Plaintiff leave to amend its declaration within a stipulated period.”

An order dismissing the Plaintiff's claim is a drastic remedy and the courts have inclined towards the grant, where an exception is upheld, of leave to the plaintiff to amend the offending pleadings. To quote the words of CORBETT CJ in Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593A…,:-

“An order dismissing an action puts an end to the proceedings and means that if the plaintiff wishes to pursue his claim on a different pleading he must start de novo. This may have drastic consequences for the plaintiff, particularly where it results in the prescription of the claim. In my opinion, it would be contrary to the general policy of the law to attach such drastic consequences to a finding that the plaintiff's claim discloses no cause of action. Here, the analogy of a defective summons springs to mind. And the cases of Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) and Prudential Assurance Co Ltd v Crombie 1957 (4) SA 699 (C) illustrate the reluctance of the Courts to deny the plaintiff the opportunity to amend his summons, even if fatally defective, by reason of its failure to state a cause of action.”

See also Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)…,; Adler v Elliot 1988 (2) ZLR 283.

IN CONCLUSION

The above having been said, had the exceptions been properly taken, I would have had no difficulty in upholding the finding by the court a quo that the appellant's declaration, as amplified by its further particulars, is excipiable.

A more ineptly drawn declaration and further particulars is difficult to imagine. The further particulars read like an essay of sorts. The draftsman clearly lacked learning or training in the area of drafting of pleadings.

However, in that event, the proper course to be taken would be to grant leave to the plaintiff to amend the offending pleadings, if so minded.

DISPOSITION

In the premises, the proper course would be to remit the matter to the court a quo for trial.

It is therefore ordered as follows;

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside.

The Submissions

Counsel for the appellant submits that an objection to jurisdiction must be by way of special plea.

This emerges from Rule 137(1)(a) and (b) of the High Court Rules, which provides a clear distinction between special pleas and exceptions. In South Africa, the position may be different but in this country there is specific authority which states that a challenge to jurisdiction must be taken by way of special plea and that it is necessary to restrict exceptions to objections dealing with the merits of the matter.

Counsel for the respondent submits that the distinction between an exception and a special plea is one of form and not of substance. By virtue of Rule 106 of the High Court Rules, no technical objection may be raised to any pleading on the ground of any alleged want of form. Although an objection to jurisdiction is usually raised by special plea, the failure to do so is not necessarily fatal. In South Africa, there is clear authority to the effect that a special plea and an exception are interchangeable.

Counsel for the appellant counters that Rule 99, which deals with the form and content of pleadings, and Rule 106, relating to technical objections, both form part of Order 15 regulating pleadings generally. Rule 106 itself refers only to Rule 99 and not to Rule 137, which is contained in Order 21 dealing specifically with special pleas and exceptions.

The Case Authorities

In South Africa, the traditional approach has been to differentiate between an exception and a special plea on the basis the latter raises some special defence not apparent ex facie the declaration. In the words of INNES CJ in Brown v Vlok 1925 AD 56…,.:

“…, a plea in bar is one which, apart from the merits, raises some special defence, not apparent ex facie the declaration – for in that case it would be taken by way of exception – which either destroys or postpones the operation of the cause of action.”

The same approach is adopted and elaborated by HERBSTEIN & VAN WINSEN: The Civil Practice of the Supreme Court of South Africa (4th ed.)…, as follows:

“The essential difference between a special plea and an exception is that in the case of the latter the excipient is confined to the four corners of the declaration. The defence he raises on exception must appear from the declaration itself; he must accept as true the allegations contained in it and he may not introduce any fresh matter. Special pleas, on the other hand, do not appear ex facie the declaration. If they did, then the exception procedure would have to be followed. Special pleas have to be established by the introduction of fresh facts from outside the circumference of the declaration, and those facts have to be established by evidence in the usual way. Thus, as a general rule, the exception procedure is appropriate when the defect appears ex facie the pleading, whereas a special plea is appropriate when it is necessary to place facts before the court to show that there is a defect. The defence of prescription appears to be an exception to this rule, for it has been held that that defence should be raised by way of special plea even when it appears ex facie the plaintiff's particulars of claim that the claim has prescribed, apparently because the plaintiff may wish to replicate a defence to the claim of prescription, for example an interruption.”

The learned authors proceed, at pages 473-479, to enumerate and explain those special defences that are typified by special pleas, viz. dilatory pleas, pleas in abatement, lis alibi pendens, arbitration as a condition precedent, prescription, non-joinder or misjoinder, res judicata and absence of jurisdiction. As regards jurisdiction in particular, they take the view…, that:

“The usual method of raising a defence of absence of jurisdiction is by way of a special plea because the lack of jurisdiction is often not apparent from the allegations contained in the pleadings objected to and must, therefore, be proved with fresh matter introduced by way of evidence, which cannot be done in the case of an exception. Where, however, it is apparent ex facie the pleading itself that the court concerned has no jurisdiction, the matter may be decided on exception.”

The case cited as authority for the last proposition is Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O)…, where STEYN AJ held that:

“If, however, it is apparent ex facie the pleading itself that the court concerned has no such jurisdiction, a defence based upon the absence of jurisdiction can be established without the introduction of any fresh matter….,.

In my opinion, it is clear, therefore, that the above-quoted phrase in sub-rule (1) of Rule 23 [i.e. 'sustain an action'] has a meaning which is wide enough to cover a case where the absence of the necessary jurisdiction is apparent ex facie the pleading concerned, and that a defence based upon the absence of such jurisdiction can validly be raised by way of exception.”

In advancing the respondent's position, counsel for the respondent cites the broad principle that the courts are inclined to look at the true nature and substance of the matter in question as opposed to its form. He relies in particular on the decision of the South Gauteng High Court in Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ) which appears to have been inspired by the need to give precedence to substance over form. After citing VOET's Ad Pandectaes (46), where the eminent jurist subsumes all special defences under the broad rubric of exceptions generally, CLAASEN J opines, at paras. 18 and 21, that:

“It, therefore, seems to me of little moment whether a particular defence is raised by way of exception or by way of special plea, provided that it is properly and timeously raised in an intelligible form….,.

It would seem to me that the nature of a defence raised by special plea or exception is more important than the procedure adopted. It is the nature of such defence which would determine whether or not evidence is required and whether or not the defence should have been raised in initio litis or whether it can be raised on appeal. How the defence is raised is of lesser importance than the grounds for the defence and the point in time that it is raised…,. In my view, this conclusion is fortified by the fact that practicalities determine the method by which a defence is raised.”

In Zimbabwe, the tendency has been to retain the distinction between exceptions and special pleas, in keeping with the traditional approach expounded by HERBSTEIN & VAN WINSEN: The Civil Practice of the Supreme Court of South Africa (4th ed.)…,. Thus, in Reuben v Meyers 1957 (4) SA 57 (SR)…, MURRAY CJ observed that:

“According to the modern practice, a defence of prescription is raised by a special plea; in the Courts of Holland this was done by an exception, a term which, as pointed out by INNES CJ, in Western Assurance Co. v. D Caldwell's Trustee 1918 AD 262 at p. 270, is used not in the narrow sense applied to it in South Africa (and Southern Rhodesia), but as covering a number of what would here be called special pleas.”

In Edwards v Woodnutt N.O. 1968 (4) SA 184 (R), the distinction was rationalised as being founded on the need to adduce further evidence in the case of special pleas. As is explained by BEADLE CJ…,:

“It will be seen that the two major objections of the defendant to the declaration relate to the locus standi of the plaintiff to pursue his action and do not suggest that if the plaintiff had the requisite locus standi the declaration did not disclose a cause of action. Objections to the locus standi of a litigant to sue are more properly taken by way of plea in bar or abatement than by exception. The practice of this Court is to employ the procedure of excepting for those objections which go to the root of the declaration and allege that the declaration does not disclose a cause of action at all, and not for those cases where only the locus standi of a particular plaintiff to sue is concerned. The basic difference, however, between an exception and a plea in abatement is that in the case of a plea in abatement evidence may be led, whereas in the case of an exception the facts stated in the pleadings must be accepted.”

On the particular facts of that case, although the defendant had followed the wrong procedure in challenging the plaintiff's locus standi by way of exception, the matter was allowed to proceed to a determination on its merits. The reason for do doing was that:

“In the instant case, the defendant does not rely on a single fact which does not appear in the declaration, nor does he challenge any of the facts pleaded. This being so, though it would have been better had the defendant's first and second exception been taken by way of a plea in bar, if no possible prejudice is caused the plaintiff by this form of procedure, I can see no reason why the real issues should not now be determined by this Court. Had the plaintiff wished to lead evidence I would have ruled that the plaintiff [sic] was out of order for adopting the wrong procedure, but as the plaintiff has not been able to suggest any evidence which he might have led which could have any bearing at all on these issues I have allowed the matter to proceed so that (as I have said) the real issues raised in these proceedings can be determined without waste of costs.”

In the more recent case of Doelcam (Pvt) Ltd v Pichanick & Others 1999 ZLR 390 (H)…, GILLESPIE J outlined the various forms of special plea available and the rationale underlying that procedure:

“The purpose of a special plea is to permit a defendant to achieve prompt resolution of a factual issue which founds a legal argument that disposes of the plaintiff's claim. Special pleas are three in kind. The plea in bar, by which a party may interpose a purely formal objection to the jurisdiction of the court. The plea is available as a plea to the jurisdiction or as a plea for the recusal of a judge and in no other case. Other special pleas are available to disclose some ground either for quashing or abating a declaration or for delaying proceedings. Both are usually termed pleas in abatement, although that expression is properly used to describe the declinatory, rather than merely dilatory, plea. The plea in abatement, strictly so called, avers some good ground, not disclosed in the declaration, which otherwise is admitted, for denying the plaintiff relief. The dilatory plea advances some fact, not disclosed in the declaration, which is otherwise admitted, and which entitles the defendant to a stay of proceedings.

Since a special plea involves the averment of a new fact, it is susceptible of replication and of a hearing at which evidence on this new fact alone may be led….,.”

The learned judge proceeded to reject the preliminary point taken by one of the defendants because it had been improperly mounted through a special plea rather than by way of exception:

“In this case, we can therefore see that the point taken by the messenger of the court did not constitute a plea in bar. In fact, it was not properly a special plea at all. It advanced the legal argument that a Messenger of Court acts as agent for a judgment creditor. An exception was the appropriate method of raising the point.”

The High Court Rules

Order 15 of the High Court Rules governs pleadings generally, while Rule 99 regulates the form and content of pleadings as follows:

“A pleading shall -

(a) Be legibly written on A4 size paper on one side only; and

(b) State the title of the action, the case number, if any, and the description of the pleading; and

(c) Contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved; and

(d) Be divided into paragraphs numbered consecutively, each paragraph containing, wherever possible, a separate allegation; and

(e) Have each page, including every document annexed to it, numbered consecutively; and

(f) Be signed by the party concerned or by his legal practitioner; and

(g) Give the party's address for service.”

Rule 106, which also forms part of Order 15, is concerned with technical objections to form and states that:

“No technical objection shall be raised to any pleading on the ground of any alleged want of form.”

Order 21 deals with special pleas, exceptions, applications to strike out and applications for particulars. Rule 137 prescribes alternatives to pleading to the merits and the forms to be utilised for any such alternative. It provides that:

“(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 defence 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.

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 form referred to in subrule (2) of Rule 137, i.e. Form No. 12, is divided into three separate forms, each dealing respectively with;

(a) The plaintiff's or defendant's exception;

(b) The defendant's plea in bar or abatement; and

(c) The plaintiff's or defendant's application to strike out.

No specific form is prescribed for a request for particulars before the close of pleadings, as opposed to a notice calling for further particulars in order to enable the requesting party to prepare for trial, i.e. Form No.13, as prescribed by Rule 143.

Rule 137, in its present form, has, apart from a minor inconsequential amendment effected by section 3 of Statutory Instrument 120 of 1995, S.I.120 of 1995, remained unaltered since the enactment of the original High Court (General Division) Rules 1971 (R.G.N. No. 1047 of 1971). These Rules repealed and replaced the Rules of the High Court of Rhodesia, contained in the Schedule to the High Court Practice and Procedure Act (Chapter 9 of the 1939 Revised Edition of Statutes).

Order 15 of the 1939 Rules regulated the taking of exceptions and special pleas and the procedure to be followed in their set-down for hearing. Rule 1 of Order 15 dealt with pleas in bar or in abatement, while Rule 2 of that Order related to exceptions. Rule 1 was virtually identical to its current equivalent in Rule 137(1)(a). Rule 2 was somewhat differently formulated as compared with the present Rule 137(1)(b), but in substance, captured the same restriction against excepting to single paragraphs of a pleading.

In short, nothing of significance is to be derived or gleaned from the legislative history of Rule 137.

Exception versus Special Plea

My reading of Rule 106, which precludes technical objections on the ground of any alleged want of form, is that it is confined to the application of Rule 99. I take this view not only because both Rules are contained in the same Order 15 but also because they both relate, in particular, to the form of pleadings. Rule 106 does not extend to the application of Rule 137 for two reasons;

(i) Firstly, the latter Rule is set out in an entirely separate Order 21 dealing specifically with special pleas and exceptions.

(ii) Secondly, and more importantly, although subrule (2) of Rule 137 is concerned with the form of special pleas and exceptions, the more crucial aspect of Rule 137 is subrule (1) which is designed to regulate the procedure to be followed in raising exceptions or special pleas.

As for the formulation of Rule 137(1) itself, there can be no doubt that it explicitly differentiates between special pleas, on the one hand, and exceptions on the other. Moreover, Rule 137(2) clearly stipulates that different forms are to be utilized when one or the other procedure is followed. This tends to support the argument that Rule 137(1) is to be strictly applied and that any deviation therefrom is to be visited with an adverse ruling.

The critical question is whether this position invariably applies in each and every case irrespective of the particular circumstances of a given case.

In the absence of clear guidance from the provisions of Rule 137 per se, but having regard to the case authorities on the subject, I am inclined to adopt a negative answer to that question.

As a general rule, exceptions taken by a defendant must be limited to objections or defences that arise ex facie the declaration itself. These would include averments that the declaration, or part thereof, does not disclose a valid cause of action or is vague and embarrassing. On the other hand, where the point taken constitutes a special defence, such as absence of jurisdiction, res judicata or prescription (cf. the pleas referred to above, as discussed by HERBSTEIN & VAN WINSEN: The Civil Practice of the Supreme Court of South Africa (4th ed.)…, the procedure to be followed is by way of special plea. These are instances where the defence relied upon is not evident ex facie the declaration and involves the averment of some new fact or facts to be proved with fresh matter. The procedure by way of special plea enables the plaintiff to rebut the defence raised by replication and the adduction of further evidence where necessary. In exceptional cases, however, where the special defence in question is apparent ex facie the declaration itself, the court may allow the matter to be decided on exception. This is subject to the qualification that the plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a decision being taken on exception.

Disposition

Turning to the instant case, the relevant sequence of pleadings filed by the parties is as follows.

The appellant issued summons on 2 October 2013 claiming general fund and pensions contributions in the sum of US$165,755= together with interest thereon at the rate of 7.5% per annum. After filing its notice of appearance to defend, the respondent requested further particulars on 5 November 2013. The issues raised related to part of the claim having prescribed, the rate of interest claimed, and the jurisdiction of the High Court to adjudicate the matter. On 15 November 2013, the appellant furnished its further particulars, specifically addressing the three issues raised by the respondent. There followed a request for further and better particulars, dated 29 November 2013, in which the respondent again raised the same three issues. The appellant responded with its further and better particulars on 6 December 2013 and served its notice to plead on 13 December 2013. The pleadings then culminated in the respondent's exception, filed on 18 December 2013, wherein it primarily challenged the court's jurisdiction and incidentally raised the points relating to prescription and the rate of interest claimed.

The court a quo, as I have already indicated, eventually dismissed the claim on the basis that it was an exclusively labour matter and that, therefore, it had no jurisdiction to entertain it. The court did not determine the other two issues raised in the exception….,.

In any event, the jurisdiction of the High Court to adjudicate the claim was impliedly asserted and presumed in the declaration. Thereafter, the question of the court's jurisdiction was fully ventilated in the respondent's requests for particulars and the appellant's responses thereto. In effect, the appellant had substantially replicated to the respondent's special defence of lack of jurisdiction. In these circumstances, it seems to me that there was nothing further that either party might have adduced, whether by way of further pleadings or through fresh evidence, to enable the court to determine the propriety or otherwise of its jurisdiction over the matter. Moreover, I do not perceive that the appellant was prejudiced in any fashion by the matter having been allowed to proceed on exception rather than by way of special plea. Consequently, it cannot be said that the court a quo erred in entertaining a challenge to its jurisdiction raised through an exception.

It follows that the appellant's first ground of appeal cannot succeed and must be dismissed.

It also follows that the appeal cannot be disposed of on this ground alone, as was envisaged by counsel for the appellant at the hearing of the matter. It will therefore be necessary to set the matter down afresh for hearing of argument on the remaining four grounds of appeal.

There will be no order as to costs at this stage.

It is accordingly ordered as follows:

1. The appellant's first ground of appeal (relating to the determination of the challenge to the jurisdiction of the court a quo by way of exception) be and is hereby dismissed with no order as to costs.

The Court holds, in respect of the first ground of appeal; whether the court a quo erred in relating to what was effectively a special plea in circumstances in which it had been taken and argued contrary to the Rules of Court, that, although the respondents could raise the question of locus standi (if the question arose at all) at any stage during the proceedings, they had to raise it in a formal way by giving notice to the other party….,.

Counsel for the appellant argued that the issue of locus standi, being a special plea, ought to have been raised in terms of Rule 137 of the High Court Rules, 1971.

There is no question that a special plea can be raised after litis contestatio. In Western Assurance Co v Caldwell's Trustees 1918 AD 262 INNES CJ said that;

“…,. Voet (44, 1, 6) states that even dilatory exceptions might be pleaded after litis contestio if they arose thereafter, or having existed before, the defendant satisfied the court, upon oath, that they had not previously come to his knowledge. Carpzovius (Part 1, cons. 6, def. 6, par. 4) is emphatically of the same opinion. All dilatory exceptions, he says, have this in common that where they only originate after litis contestatio, or where they only come to the notice of the defendant thereafter, then they may be taken during the course of the case, upon proof, under oath, of that special circumstances. That seems to me not only good law but sound law.”

…, cited by HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, Fifth Edition..,.

It is clear from authority that even if a plea can be raised after litis contestatio, there must be proof, under oath that the exception did not come to the knowledge of the respondent before the time when it is raised. 

In this case, the respondents raised the plea of lack of locus standi after litis contestatio without complying with the High Court Rules on the manner in which special pleas are raised. The appellant argued that since the respondents had not complied with the Rules, they should have applied for condonation for non-compliance with the Rules. The court a quo dismissed the appellant's contention. It held that since the plea arose after the pre-trial conference Rule 137 and Rule 139, on the manner in which pleas ought to be raised, did not apply. The court went further to hold that there was no reason why the respondents should have sought condonation.

The court a quo held that the issue raised was a question of law which could be raised at any time in the proceedings.

The Court is of the view that the fact that the appellant was placed under liquidation after the Pre-Trial Conference did not entitle the respondent to ignore the Rules of the Court on the procedure for raising special pleas. The issue was raised in a letter between the parties. Such correspondence would not constitute proper pleading. Pleadings are required to be raised in a formal manner for the court to rely on them.

The defendant entered an appearance to defend and filed a special plea in bar/abatement in terms of Order 21 Rule 137 of the High Court Rules.

The special plea was in relation to a claim by the plaintiff for eviction of the defendant, and all those who claim through her occupation, of Stand No.11355 Joseph Msika Housing Cooperative, Hatcliffe, Harare.

As discerned from the plaintiff's declaration, the basis of the claim is as follows; that on or about November 2006, the plaintiff was allocated Stand No.11355, Joseph Msika Housing Cooperative Ltd, as a member of Harare North Housing Cooperatives Union Ltd. That the plaintiff paid for the land, road, sewer and water reticulation services in respect of the allocated Stand. The plaintiff, after being authorised by the cooperative, proceeded to effect improvement on the property. Sometime in September 2012, the defendant unlawfully and violently evicted the plaintiff together with his family and took occupation of the property - together with the improvements. That the Stand is registered in the name of the plaintiff in the City of Harare and Joseph Msika Housing Cooperative Ltd records. That there being no contractual relationship between the defendant and either the plaintiff or Joseph Msika Housing Cooperative Ltd Harare North Housing Cooperative Union, the plaintiff therefore seeks an order divesting the defendant of possessing and use of the property and vesting the same with the plaintiff.

The defendant has, despite demand by the plaintiff, refused and/or neglected to vacate the property….,.

The defendant filed the special plea in terms of Order 21 Rule 137 of the High Court on the basis that the plaintiff does not have:-

1. Locus standi;

2. That the plaintiff has not exhausted domestic remedies;

It is apparent from the foregoing discussion that all the three issues raised by the defendant in the special plea lack merit. 

The lengthy and meandering plea in bar by the defendant is not only controversial and argumentative but does not conform with Rule 1371(a) under which it has been occasioned. Rule 137 reads:-

“A party may take a plea in bar or 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.”

Exceptions must have pride of place in the founding affidavit.

Arenel Sweets and Biscuits (Pvt) Ltd are one of the largest manufacturers of sweets and biscuits in Zimbabwe. Their wide selection of sweets and biscuits are found in most major chain stores countrywide. Established in 1946, in a small factory in Bulawayo, the plaintiff became popular with their wide range of products including suckers, sugar sticks and apricot balls.

The defendant, Alexander Forbes Risk Services Zimbabwe, is a leading insurance broker delivering professional insurance and risk management to corporate, public, and private institutions around the country. The defendant is also in the business of insurance broking. In broad terms, insurance brokers act as intermediaries between clients, who can be either individuals or commercial businesses and organisations, and insurance companies. Insurance brokers are expected to use their in-depth knowledge of risks and the insurance market to find and arrange suitable insurance policies and arrange cover. They act in the best interests of their clients and offer products from more than one insurer to ensure that their clients get the best deal.

The plaintiff instituted proceedings against the defendant for the following:-

(a) Payment of the sum of US$62,972= being the difference less the ex-gratia payment of US$15,743=.

(b) Interest a temporae morae.

(c) Costs on a punitive scale.

The defendant disputes the plaintiff's claims and has filed a special plea in bar and what it terms the defendant's notice of exception and application to strike out. Before I deal with the merits of the application for the exception and special plea in bar I propose to set out the factual background of the claims against the defendant.

Factual background

Sometime in the year 2011, the plaintiff approached the defendant requesting the defendant to effect, on its behalf, through insurers, an Export Insurance Policy. The defendant, being the insurance broker, engaged Credit Insurance Zimbabwe Limited, commonly known as CREDSURE to effect the insurance policy. Following discussions between the defendant (broker) and the insurer (Credsure), the final policy document was prepared, but could only become operative once a valid Credit Limit Form CU30 Forms (Application for Credit Limit), in the name of the foreign buyer had been approved by the insurer. The plaintiff, through the defendant (broker), duly filled in the CU30 Forms – Application for Credit Limit and paid the initial deposit premium of US$5,061= through the defendant. The plaintiff's credit insurance cover was in respect of a Zambian based company known as ZAMCON TRADING. For some reason, Credsure never approved the Credit Cover between the plaintiff and ZAMCON Trading of Zambia, in spite of the fact that the plaintiff was effecting payment of premiums towards the Export Credit Insurance Cover through the defendant.

The defendant did not notify the plaintiff that the Credit Cover was not effected, and, on that basis, the plaintiff proceeded to export and supply goods to the customer in the belief that there was an Export Credit Cover. ZAMCON subsequently defaulted in paying the sum of US$78,715= for goods supplied at its own instance. The plaintiff turned to the insurer, through the broker, the defendant, and was advised that the insurance cover had not been effected. By virtue of the relationship between the defendant and the insurer, an ex-gratia payment of US$15,743= was paid to the plaintiff by the insurer. The plaintiff contends that through negligent conduct of the defendant, an Export Credit Cover was not effected for ZAMCON Trading on behalf of the plaintiff, despite the defendant receiving premiums for onward transmission to the insurer. The plaintiff avers that the defendant misrepresented that an Export Credit Cover had been duly effected. The plaintiff claims the difference between the ex-gratia payment of US$15,743= and the sum of US$78,715= for goods supplied to ZAMCON Trading.

The Exception

The defendant filed a special plea in bar in the following terms:

“1. Plaintiff pleads that it engaged the defendant to procure Export Credit Insurance Policy with Credit Insurance Zimbabwe Limited (“CREDSURE”) in the year 2011.

2. Plaintiff further alleges that the defendant failed to procure the Export Credit Insurance for the plaintiff in consequence of which CREDSURE refused to pay.

3. The plaintiff's cause of action is based on the alleged failure by the defendant to procure Export Credit Insurance for the plaintiff in 2011 and the plaintiff was advised, in any event, by CREDSURE of this position on 12^th April 2012 as reflected on annexure “A” hereto.

4. The plaintiff's summons was only served on the defendant on 17^th August 2015 more than (3) years after the alleged cause of action arose.

5. The plaintiff's claim has accordingly prescribed in accordance with the Prescription Act [Chapter 8:11].”

On the same date the special plea in bar was filed, the defendant also filed a document headed 'Defendant's Notice of Exception and Application to Strike out.' The defendant makes the following averments in this document:

“…,. Defendant hereby excepts to and applies to strike out the plaintiff's claim as set out in the summons and declaration on the basis that, ex facie, the claim does not disclose a valid cause of action against the defendant, is bad in law, argumentative and is vague and embarrassing, more particularly in that:-

1. The plaintiff's claims do not disclose whether the claim is in contract or in delict.

2. If the claim is in contract, plaintiff has not pleaded the essential averments of the alleged contract between the parties which the defendant could have breached it.

3. If the claim is in delict, the plaintiff's claim is bad in law in that it does not contain the essential averments necessary to sustain a delict. Without derogating from the generality thereof, the plaintiff has merely averred that the defendant was negligent without seeking out the particulars of the alleged negligence on the part of the defendant. Without alleging the particulars of negligence, the plaintiff's claim is bad in law and the defendant is, in my event, embarrassed as to what it is that is alleged against it as the basis of wrongfulness.

4. Further, and in any event, the plaintiff's claim is vague and embarrassing and contradictory in that the plaintiff alleges that defendant was “negligent” in not procuring the insurance cover and in the same breath and without pleading in the alternative alleges and relies on an alleged 'misrepresentation' to the plaintiff that the insurance cover had been procured.

5. Further to the aforegoing, and without in any way derogating from the foregoing, paragraph 12 and 13 of the plaintiff's declaration are argumentative and express the plaintiff's 'feelings' and do not amount to pleading. Defendant accordingly prays for the striking out of these paragraphs.

Wherefore, defendant prays that the exception and application to strike out be upheld, and the plaintiff's claims against the defendant be dismissed with costs.”

In response to the defendant's special plea, the plaintiff files a replication in the following terms:-

“3. …, serve to say, the claim against defendant has not prescribed, in that after Credsure repudiated the claim, defendant advised plaintiff that it was engaging Credsure to try and settle and resolve the dispute…,. Plaintiff was and has been of the view that defendant was trying to resolve the issue.

3.1 To the extent that defendant went as far as trying to engage a neutral party to engage in arbitration so as to try to resolve the dispute this was after the 12^th April 2012, the defendant advised plaintiff that it had engaged Mr Unity Sakhe of Kantor & Immerman to try and settle the issue.

3.2 Plaintiff was and or has always been of the view that defendant was engaging Credsure to try and resolve this issue. Plaintiff only became aware that defendant was not resolving anything when it received the letter dated 8^th April 2015.

3.3 Hence, plaintiff became aware of its cause of action against defendant after receiving the letter dated 8^th April 2015 from the defendant thus the matter has not prescribed.”

In respect of the defendant's notice of exception and application to strike out, the plaintiff replies as follows:

“1…., the Honourable Court's Rules, as published in RGN 1047 of 1971, and as subsequently amended, do not recognize a pleading called a notice of exception and applicationt to strike out, thus the pleading filed by defendant is not in terms of the Rules.

2. In terms of Order 21 of the Honourable Court's Rules, an exception and an application to strike out are separate pleadings with different essential elements, and the format for each pleading is provided for in Form 12. The mixing of the two pleadings and creating a composite pleading is not recognized by the Court's Rules.

3. Defendant is abusing court process and delaying the proceedings as a complainant by defendant could be rectified by a complaint letter in terms of Rule 40, which is cheaper and faster.

4. Defendant's prayer is thus a vague and embarrassing pleading not recognized by law, which is a dismissal of plaintiff's claim in that if it is an application to strike out it does not have the effect of deciding on a matter for an applicant as outlined in defendant's pleading…,.” (sic)

The attack on the contents of the summons and particulars of claim should have, in all fairness, been raised as an exception to the summons or as a preliminary point and not at the close of the case for the plaintiff.

This was an exception. The facts are taken “as is” from the plaintiff's declaration….,.

Exception and its purpose

An exception is a legal objection to a pleading. It complains of a defect inherent in the pleading: H J ERASMUS, Superior Court Practice…,.

For the purposes of an exception, the facts pleaded must be accepted as correct: Marney v Watson & Another 1978 (4) SA 140…,.

The main purpose of an exception is to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked so as to settle the dispute in the most economical manner by having the faulty pleading set aside: City of Harare v D & P Investments (Pvt) Ltd & Anor 1992 (2) ZLR 254 (S)…,.

In Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A) and Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A), it was accepted that the main purpose of an exception that a declaration does not disclose a cause of action is to avoid the leading of unnecessary evidence at the trial.

In McKelvey v Cowan NO 1980 (4) SA 525 (Z), it was held that in dealing with matters of exception, if evidence can be led which can disclose a cause of action alleged in the pleadings, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action.

Cause of action, as per SMITH J in Dube v Banana 1998 (2) ZLR (HC)…, means the combination of facts that are material for the plaintiff to prove in order to succeed in his action. The facts must enable the court to reach a conclusion regarding unlawfulness, fault and damages: see also Controller of Customs v Guiffre 1971 (2) SA 81 (R)…, and Patel v Controller of Customs & Excise 1982 (2) ZLR 82 (H)…,.

The two (2) defendants have taken a “plea in bar/abatement” against a claim brought against them by the plaintiff seeking an order for their evection from Stand 11347 Joseph Msika Housing Co-operative, Hatcliffe, Harare and costs of suit.

In his declaration, the plaintiff pleaded, in relevant part, as follows:-

“4. In or about November 2006, plaintiff was allocated Stand No 11347 Joseph Msika Housing Co-operative, Hatcliffe by Joseph Msika Co-operative Ltd, a member of the Harare North Housing Co-operatives Union Ltd.

5. Plaintiff duly paid for the land, road, sewer and water reticulation services in respect of the allocated Stand.

6. The plaintiff, after being authorised by the Co-operative, proceeded to effect improvements on the property by excavating the foundation, concrete footing and erected the foundation and a four (4) roomed house.

7. Sometime in September 2012, the defendants unlawfully and violently evicted the plaintiff together with his family and took occupation of the property together with the improvements.

8. The Stand is registered in the name of the plaintiff in the City of Harare and Joseph Msika Housing Co-operative Ltd records.

9. There being no contractual relationship between defendants and either the plaintiff or Joseph Msika Housing Co-operative Ltd or Harare North Housing Co-operative Union, the plaintiff therefore seeks an order divesting the defendants of possession and use of the property and vesting the same with the plaintiff.

10. The defendants have, despite demand by the plaintiff, refused and/or neglected to vacate the property.”

The defendants, as I have stated, have taken issue with that claim, and, in their long winding “special plea in bar/abatement”, filed in terms of Rule 137 of the High Court of Zimbabwe Rules, 1971, the defendants aver that the plaintiff does not have locus standi in judicio to bring the action for eviction as the land in question is un-alienated State land and only the State can institute such eviction action. As the plaintiff is not an agent of the State, has no real rights over the land, and the purported sale of the land to him by the co-operative is a nullity since there is no Deed of Transfer that was executed, the plaintiff cannot sue for eviction.

The second basis for the bar is that the plaintiff has not exhausted domestic remedies available to him given that there is a dispute between Joseph Msika Housing Co-operative, which sold the land to the plaintiff, and another co-operative, Casa Nova Housing Co-operative, which allocated the same piece of land to the second defendant. In light of that, there being a dispute between two registered co-operatives, it should be resolved in terms of sections 115 and 116 of the Co-operative Societies Act [Chapter 24:05].

Thirdly, the defendants averred that the order that the plaintiff seeks is impossible of performance by reason that Stand 11347, from which eviction is sought, does not exist given that the land in question is yet to be surveyed in terms of the Land Survey Act [Chapter 20:12].

I must hasten to point out that, after exchanging a few “war stories” with counsel for the defendants, he quickly abandoned the third leg of the plea in bar having rightly accepted its lack of merit. It is in respect of the first two (2) objections that I must decide.

The rules of court providing for a plea in bar are there for a purpose. They are certainly not designed to provide sanctuary to litigants bent on evading lawsuits. They are for genuine ones who desire to dispose of those actions which should not detain the court because they can be disposed of on substance as opposed to merit. In fact, Rule 137(1)(a), under which the plea in bar has been made, provides:

“A party may 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.”…,.

Legal practitioners should be reminded that the these remedies are not to be abused for dilatory purposes or for buying time where one has not fully constructed the defence which the defendant has against the action. The first question that a legal practitioner should ask before rushing to prepare such a plea is whether, if allowed, it will dispose of the case. It is irresponsible to just present a plea which has no earthly chance of bringing finality to the matter or, as is the case in casu, is long winding, confusing and creates a dispute of facts as cannot possibly be decided without resort to evidence. The mere fact that the averments in such a plea are disputed should be enough to dissuade the litigant from raising it.

While still at that, it is time to remind legal practitioners, once again, that in formulating pleadings they should always bear in mind the purpose of pleading. The essence of any claim is found in the pleadings, whose function is to inform the parties of the points of issue between them to enable them to know in advance what case they have to meet, to assist the court define the limits of the action and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH304-13; BECK's Theory and Principles of Civil Actions ed 5…,.

By definition, pleadings must be concise and to the point. They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence. Pleadings which are long-winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings. I associate myself fully with the sentiments of MAKARAU JP…, in Chifamba v Mutasa & Ors HH16-08 (unreported) that:-

“Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.”

We have a situation in which the lengthy plea in bar is not only at variance with acceptable standards of pleadings, it also raises controversial, argumentative, and, indeed, disputed allegations which should not be contained in such a pleading.

Counsel for the plaintiff took issue with the set down of the matter arguing that there was no compliance with Rule 138 dealing with such matters.

Counsel for the defendants disputed that in correspondence between the parties maintaining that he was entitled to his day in court.

Having come to the conclusion that the special plea is without merit, it may be unnecessary to deal with the issue of set down. Suffice to say, though, that the matter was not set down in accordance with the Rules. In fact, the defendants should have pleaded over to the merits of the matter the moment they failed to satisfy the requirements of Rule 138.

The defendant, who is the excipient in this matter, is an incorporation charged with the transmission and distribution of electricity in this country it being a subsidiary of ZESA Holdings Limited. The plaintiff is a commercial farmer performing her trade at Subdivision 1 of Dagbreek Farm in Nyazura where she is engaged in the growing of tobacco and sugar beans.

The plaintiff sued out a summons out of this court against the defendant for payment of US$500,000= for loss of 30 hectares of tobacco crop and 20 hectares of sugar beans crop as well as US$200,000= being damages for consequential loss together with interest thereon and costs of suit. In her declaration, the plaintiff averred that about October 2009 the defendant wrongfully and unlawfully confiscated electrical equipment at her farm in the form of meter boxes, cables, MCBs and other electrical gadgets. She averred, further, that in January 2010 and following an investigation into the circumstances of the removal of the electrical equipment, the defendant undertook to reinstate electricity at the plaintiff's farm upon a realisation that the plaintiff required it to irrigate her 30 hectares of tobacco and 20 hectares of sugar beans. The plaintiff averred that the defendant advised her to continue with her activities as an instant installation of power was being undertaken. However, the defendant disregarded its obligation to install electricity which was wrongful as a result of which her tobacco and sugar beans crops wilted due to moisture stress resulting in loss. In paragraph 9 of the declaration, the plaintiff specifically averred that:

“9. Defendant's conduct was wrongful and unlawful and resulted in serious loss to the plaintiff.”

She therefore craved for compensation aforesaid. The defendant excepted to the plaintiff's summons as follows:

“The defendant enters an exception to the plaintiff's summons based on the following grounds:

1. The summons and declaration served on it does (sic) not state a true and concise statement of the nature, extent and grounds of the cause of action, more specifically, in that it omits an essential element of the cause of action. The summons does not specify whether the claim arises from a contractual obligation or delictual or any other basis on the part of (the) defendant.

2. (The) defendant therefore prays for a dismissal of the plaintiff's claim on the basis that the summons does not disclose a cause of action.”

Counsel for the defendant submitted that the plaintiff's summons does not disclose a cause of action as it does not specify whether the claim arises from a contractual obligation or a delictual one. The averment that the defendant's actions were wrongful and unlawful was not enough to found a cause of action. In her view, in order to succeed in a suit for patrimonial loss under the aquilian action “the party must plead and prove” that the defendant committed a wrongful act which resulted in actual loss.

Therein lies the defendant's problem.

The determination of whether a claim is excipiable or not cannot be premised on proof of an averment. Proof relates to evidence which is the province of trial and not an exception. The essence of any claim is located in the pleadings whose function is to inform the parties of the points of issue between them to enable them to know in advance what case they have to meet, to assist the court define the limits of the action, and to place the issues on record. See BECK's Theory and Principles of Civil Actions, 5th ed…,. To that extent, pleadings are required to be drawn in summary form, must be brief and concise and must state only relevant facts and not evidence. The seminal judgement of DAVIS J in Kahn v Stuart 1942 CPD 386…, sets out clearly how the court should approach the pleadings;

“…, the court should not look at a pleading with a magnifying glass of too high power. If it does so, it (is) almost bound to find flaws in most pleadings…,. It is so easy, especially for busy counsel, to make mistakes here or there, to say too much or too little, or to express something imperfectly. In my view, it is the duty of the court, when an exception is taken to a pleading, first to see if there is a point of law to be decided which will dispose of the case in the whole or in part. If there is not, then it must see if there is any embarrassment which is real and such as cannot be met by the asking of particulars…,. And, unless the excepient can satisfy the court that there is such point of law or such real embarrassment, then the exception should be dismissed.”

It is crucial to note that a pleading is excipiable on the ground that it does not disclose a cause of action if no possible evidence led on the pleading can disclose such cause of action. As stated by BEADLE AJ…, in McKelvey v Cowan N.O. 1980 (4) SA 525 (Z);

“It is a first principle in dealing with matters of exception that if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action. That is the manner in which I approach this case.”

The plaintiff makes the statement, in her declaration, that the defendant removed electrical equipment from her farm wrongfully and unlawfully. She also states that, at some stage, after some engagement, the defendant undertook to restore electrical power on realizing that she needed it for cropping purposes. It further advised her to continue with her farming activities on the promise that electricity would be restored without delay. Notwithstanding all this, the defendant wrongfully failed to provide power resulting in loss of crops.

There is no doubt that the plaintiff's averments contain a lot of prolixity, are lengthy, tedious and the pleading is unnecessarily wordy. Indeed, the declaration could have been couched in more elegant terms than it is. That, however, does not detract from the fact that the pleading bellies all the necessary averments. If evidence can be led to prove the wrongfulness and unlawfulness of the defendants' conduct and to prove the existence of an undertaking made by the defendant to restore electricity at the plaintiff's farm and the attendant knowledge that such was needed for irrigating crops, then a cause of action would be established. For that reason, the pleading cannot be said to be excipiable: McKelvey v Cowan N.O. 1980 (4) SA 525 (Z). I am not persuaded that the exception taken by the defendant has the object of settling the case, or part of it, in a cheap and easy manner or that it has the object of protecting the defendant against an embarrassment so serious as to merit the costs of an exception: Keeley v Heller 1903 TS 101. If anything, the exception appears designed to confound the plaintiff.

It is without merit.

Having come to that conclusion, I find it unnecessary to deal with the objection taken by counsel for the plaintiff that the exception was not taken in accordance with Rule 140(1)(b) of the High Court of Zimbabwe Rules 1971, in that no letter of complaint was written to the plaintiff to address the source of complaint about the pleading: See also HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3rd ed…,. The pleading is simply not excipiable on the basis relied upon by the defendant. There would have been nothing to amend or rectify as envisaged by Rule 140(1)(b).

While it is not the intention of the law to discourage parties from taking exceptions if such exceptions may result in the reduction of costs and the shortening of proceedings: McKelvey v Cowan N.O. 1980 (4) SA 525 (Z); Mnangagwa v Alpha Media Holdings (Pvt) Ltd and Anor HH225-13, I am of the view that this exception is thoroughly without merit and should not have been taken at all. It is remarkable that this court is now increasingly being called upon to adjudicate over so many of these exceptions which are devoid of merit and appear intended to delay proceedings. Invariably, excipients are approaching the court, frequently, praying for a dismissal of claims, as has been requested by the defendant in casu, when the proper remedy would be for the plaintiff to be directed to amend the impugned pleading.

Where an exeption of this nature is upheld, the plaintiff would be allowed to amend the pleading; Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297; Marney v Watson and Anor 1978 (4) SA 140; HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3rd ed…,.

I therefore take the view that the defendant must face the consequences of its ill–conceived exception which has unnecessarily put the plaintiff out of pocket. Accordingly, the exception is hereby dismissed with costs.

The defendants (who are the excipients in this matter) have excepted to the plaintiff's (who is the respondent) declaration and I have to decide whether that exception has merit or not.

The plaintiff is a Government Minister, being the Minister of Defence, and a senior member of a political party known as the Zimbabwe African National Union Patriotic Front (Zanu-PF) which is one of the ruling parties in the current Government of National Unity. The defendants are the owner of a publication which is said to enjoy wide circulation in Zimbabwe, namely, the Zimbabwe Independent, and its editor.

In the Zimbabwe Independent edition of 11 May 2012, an article was published in the front page under the title “Mnangagwa Ready to Rule”. The article reads, in pertinent part, thus:

“Defence Minister Emmerson Mnangagwa (pictured) has for the first time openly declared his interest in taking over from President Robert Mugabe as the leader of Zanu PF and the country in remarks showing the succession battle in the party is intensifying. Mnangagwa told the Zimbabwe Independent last Friday at Heroes Acre, during the burial of Zanu-PF politburo member Edson Ncube, he was ready to govern if given an opportunity. This virtually confirmed he is positioning himself to succeed Mugabe, remarks which could anger senior Zanu PF officials and fuel factionalism and internal power struggles ahead of the next elections.

'I am ready to rule if selected to do so', Mnangagwa said. 'Zanu-PF is about observing the will of the people and I will respect the people's wishes if they choose me'….,.

In remarks which show succession is now hotly-contested, Zanu PF secretary for administration, Didymus Mutasa, this week poured cold water on Mnangangwa's ambitions, saying he would not waste his time commenting on individuals' dreams;

'I do not want to be drawn into baseless arguments by commenting on individuals' wishes' said Mutasa. 'I will comment on that issue when the time comes, that is when the people, here I mean Zanu-PF, have chosen him as the leader of the party.'

Mutasa, who is number five in the hierarchy, recently said Mnangagwa, who is not in the top 10, was far down the pecking order to succeed Mugabe compared to Mujuru and others….,.

Mnangagwa has been battling the Mujuru faction for years in a sustained turf war to succeed Mugabe. The Zanu PF fight for power has escalated as evidence mounts that Mugabe is struggling with old age complications and ill-health. Factionalism and infighting recently flared up in Zanu-PF forcing Mugabe, last Friday, to slam faction leaders and greed, saying they were destroying his party.

Mnangangwa has been fighting to take over from Mugabe for a long time. He first tried to position himself as heir-apparent by vying for the vice-presidency in the run up to the 2004 congress but was ruthlessly crushed by Mugabe and the Mujuru faction. His camp was also trounced during the 2009 congress but is now gaining ground….,.

Zanu PF spokesperson, Rugare Gumbo, also appeared to dismiss Mnangagwa's ambitions saying his party had laid-down procedures to be followed on succession;

'In Zanu-PF, we have a hierarchy and this is adhered to whenever there is need for promotion' said Gumbo. 'Whilst people may harbour presidential ambitions, it is unfortunate (for Mnangagwa) that we follow this hierarchy'….,.

The Zanu PF Youth league said factional leaders causing chaos in the party should be confronted and dealt with head on;

'These are pretenders (factional leaders) and we don't work with pretenders but the person elected at the congress. We deal with reality – that is the person in power,' National Deputy Youth Secretary for External Affairs, Tongai Kasukuwere, said. 'If people are named for fanning divisions they must be disciplined. We don't want to work with people who cause confusion.'”

The plaintiff took issue with the article and instituted summons action against the defendants seeking defamation damages of US$1 million. In paragraphs(s) 2.6 to 2.9 of his declaration he made the following averments;

“2.6 The article specifically alleges that (the) plaintiff, is a leader of a 'faction' fighting and involved in a power struggle with other Government officials to succeed the President of Zimbabwe.

2.7. The article is false in that the plaintiff never made the remarks attributed to him in the article nor did he speak to the Zimbabwe Independent or anybody else as alleged.

2.8. The article is defamatory per se of (the) plaintiff to whom it refers, in both his personal as well as his professional capacities.

2.9. As a result of the defamation, (the) plaintiff has been damaged in his good name and reputation and suffered damages in the amount of USD1,000,000.00.”…,.

The defendants have excepted as follows:-

“The defendants hereby note an exception to (the) plaintiff's declaration as disclosing no cause of action in that the words complained of are not defamatory per se and can, under no circumstances, be damaging to (the) plaintiff's good name and reputation.

Wherefore (the) defendants pray that (the) plaintiff's claim be struck down with costs on the scale of legal practitioner and client.”

Where exception is taken on a defamation suit, the law is as was set out by the learned author J.M. BURCHELL, The Law of Defamation in South Africa, Juta & Co Ltd…, where he said;

“Where exception is taken to the plaintiff's declaration, the test of what constitutes defamatory matter is different from that at the trial stage.

TINDALL JA said, in Basner v Trigger 1945 AD 229 & 32 (this case involved an innuendo but the test on exception is the same);

'In other words, all the court is called on to decide, at this stage, is whether a reasonable person of ordinary intelligence, having heard the defendants' words and having knowledge of the circumstances…, might reasonably understand these words as meaning that the plaintiff had been guilty of illegal or criminal conduct…,.'

The test on exception is, therefore, whether a reasonable person of normal intelligence and with knowledge of the circumstances could or might regard the statement as defamatory, whereas at the trial stage the test is whether a reasonable person would regard it as defamatory.”

The above passage in BURCHELL, The Law of Defamation in South Africa, Juta & Co Ltd was adopted in our jurisdiction by SANDURA JP…, in Zvobgo v Mutjuwadi & Ors 1985 (3) SA 1055 (ZH)…, where the learned judge pronounced:

“I must now deal with the fourth defendant's exception to the plaintiff's declaration.

The fourth defendant excepts to the plaintiff's declaration on the ground that it is bad in law because it discloses no cause of action in that the words relied upon are not reasonably capable of conveying a defamatory meaning.

I ought to make it quite clear, right from the outset, that I do not have to determine, at this stage, whether or not the article in question is in fact defamatory. What I must decide is whether the words complained of are reasonably capable of conveying to the average reader the defamatory meaning assigned to them by the plaintiff. This is made quite clearly by BURCHELL in his new book, The Law of Defamation in South Africa at 102-3.”

In Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)…, ROBINSON J added the following:-

“The test is undoubtedly an objective one. See Botha en'n Ander v Marais 1974 (1) SA 44 (A) at 48E and Demmers, on appeal, supra at 842A-B.

In Visse's cases supra at 447, MURRAY J went on to say:-

'The test to be applied by the court, in determining whether these words are reasonably capable of the alleged defamatory meaning, is the effect on the mind of the ordinary reader, an average reasonable person of ordinary intelligence – Basner v Trigger 1945 AD at p 32 – who reads the article with ordinary care, but not as 'an astute lawyer or a super-critical reader would read the passage' – per WESSELS JA in Johnson v Rand Daily Mails 1928 AD at p 204.”

The learned judge went on, at 371 C-G, to say:-

“Accordingly, putting aside, as I am told I must do, my training and my logical, critical and analytical habits of mind as a lawyer and stepping into the shoes of the ordinary reader of the Financial Gazette, the question which I must answer is:

What immediate impact would the contents of the article in question have on the mind of such a reader and what would be the overall impression gained by him? Or, put another way, in the context of the article as a whole; are the words used reasonably capable of conveying to the reasonable reader the defamatory meanings ascribed to them by the plaintiff in para 5 of his declaration?”

BEADLE AJ…, made the point, in McKelvey v Cowan NO 1980 (4) SA 525 (Z), that:

“It is a first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action. That is the manner in which I approach this case.”

Counsel for the defendants submitted that the article complained of does not, in fact, specifically allege that the plaintiff is a faction leader - although the implication is there. In this view, in most organisations, including political ones, there is vying for leadership and nothing turns on that. He submitted that there is nothing in the article to suggest that the plaintiff is fanning division or creating dissent but that he is just one of a number of people interested in standing for the office of President once the incumbent steps down.

Counsel for the defendants further submitted that the fact that the article attributes to the plaintiff the words that he will abide by the decision of the people and respect their wishes shows considerably greater nobility of mind than some of those quoted who believe that a Presidential candidate must be selected following a party hierarchy of succession.

Counsel for the plaintiff pointed to passages in the article which, in his view, would be understood by the ordinary reader to mean that the respondent is of a diminished reputation and character. According to counsel for the plaintiff, the crux of the matter lies in paragraph 2.8 of the declaration which avers that the article complained of is defamatory per se. For that reason, the article must be examined in its entirety to determine whether it would convey the message complained of.

I agree.

I am mindful of the fact that I am not being called upon, at this point in time, to determine whether the article is defamatory. That is the province of the trial court. What I have to determine, at this stage, is whether the article is reasonably capable of conveying to the average reader the defamatory meaning assigned to it by the plaintiff. In doing so, I must, as suggested by ROBINSON J, in Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H), put aside my training and my logical, critical, and analytical habits of mind as a lawyer and step into the shoes of the ordinary reader of the Zimbabwe Independent in order to answer that question.

The article states that the respondent is “positioning himself to succeed Mugabe, remarks which could anger senior Zanu-PF officials and fuel factionalism and internal power struggles.” It also states that Zanu PF has laid down succession procedures which it follows whenever there is a need for promotion. The ambitions of the plaintiff, who is not even in the top 10 of that hierarchy, to succeed the President are therefore misplaced and at variance with the procedures of that party. It is the kind of ambition which could fuel factionalism and internal struggles which have already flared up resulting in President Mugabe slamming faction leaders for greed and destroying his party. Indeed, even the youth wing of Zanu-PF has taken a stand against faction leaders for fanning divisions insisting that they should be disciplined.

To the extent that the declaration makes the averment that the entire article is defamatory per se and that one has to therefore look at it in its entirety, one cannot avoid the conclusion that in the context of the article as a whole, the words used are reasonably capable of conveying to the reasonable reader of the Zimbabwe Independent the defamatory meaning ascribed to them by the plaintiff.

Generally, factionalism is presented as a sticking problem for Zanu PF and faction leaders as not only undisciplined but also as destroying the party.

I do not agree with counsel for the defendants that the article does not allege that the plaintiff is a faction leader. In fact, that argument is made half-heartedly because counsel conceded, at the same time, that the implication is there. It is also important to point out that the plaintiff avers, in his declaration, that he never gave an interview to the Zimbabwe Independent and that everything attributed to him in the article is false. That is an issue to be canvassed by evidence, and, if evidence can be led to that effect, clearly, a cause of action exists.

The declaration is therefore not excipiable: McKelvey v Cowan NO 1980 (4) SA 525 (Z). I am therefore unable to uphold the exception.

I, however, take the view expressed by BEADLE AJ…, in McKelvey v Cowan NO 1980 (4) SA 525 (Z) that the law does not discourage parties from taking exceptions when exceptions may result in the reduction of costs and shortening of proceedings. This is a case in which the defendants were entitled to except - albeit unsuccessfully. For that reason, the costs should be in the cause.

In the result, it is ordered that:-

1. The exception is hereby dismissed.

2. The costs shall be in the cause.

The plaintiff instituted summons actions against the defendant on 25 February 2014 for payment of a sum of $30,696= together with interest at the prescribed rate from 31 December of an un-named year to date of payment and punitive costs for services alleged rendered from 31 December 2008 to March 2013. It averred that it leased to the defendant PABX systems and telephones at Chinhokwe site.

In response to the summons, the defendant filed a special plea in the following:-

“Defendant hereby files its special plea as follows:-

1. Prescription

Plaintiff's claim has prescribed. Plaintiff's claim arose in 2008 and it has since prescribed.

2. Cause of action

(i) There is no contract between plaintiff and defendant. Defendant does not know plaintiff as plaintiff entered into a contract with Forestry Commission of Zimbabwe.

(ii) There is no basis for the claim in Unites States dollars yet the contract is in Zimbabwean dollars. Further, there was never a contract signed in United States dollars between the parties.”

At the hearing of the matter, I raised the issue of failure to comply with the Rules of Court relating to such matters as there appeared to be a serious disregard of those rules in setting down the matter.

Counsel for the defendant skirted around the issue. He submitted that, whereas the rules require that such a matter be set down within a specified period of time, it can only be set down when heads of argument have been filed. For that reason, the practice makes it impossible for the matter to be set down within the time prescribed by the Rules. To him, the issue is as simple as that and for that reason parties should be allowed to request a set down as they please and they should be given audience.

Ordinarily, one would overlook that kind of aberration but the infringement of Rules providing for exceptions and special pleas has become too frequent that one begins to doubt if litigants ever bother to consider those provisions in the Rules. There is, therefore, a need to redirect the attention of litigants to the requirements of the Rules relating to exceptions and special pleas.

In terms of Rule 137(1) of the High Court of Zimbabwe Rules, 1971, a party may take a plea in bar or abatement where the matter is one of substance which does not involve going into the merits, except to the pleading, apply to strike out or apply for further particulars. When such plea in bar or exception has been made there are peremptory provisions for set down. In terms of Rule 138:

“Where 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 subrule (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 date.”

Clearly, these are peremptory provisions that have to be complied with.

A litigant cannot be allowed to ignore the procedure spelt out in the Rules because this is not any other day in office where they would otherwise do as they please. The procedure itself is disarmingly straight forward and is there for a purpose. The bigger picture is that the process of pleading specially, excepting or applying to strike out should not be unrolled as a vehicle for delaying proceedings. It is meant for genuine and serious litigants desiring to bring finality or at least to obtain genuine relief where shoddy pleading has occurred.

What is happening presently at this court is that the procedure is frequently being summoned by defendants, or is it legal practitioners, who find themselves cornered to file a plea and are unable to do so either because they are not ready, the legal practitioner not having taken full instructions but finding nothing ethically wrong with entering appearance to defend, or, having taken instructions, is very much aware of the shaky defence the defendant has or the non-existence of it. The procedure is then abused for dilatory purposes.

The time frames set out in the Rules have to be followed every step of the way in order to put the special plea, exception or application which is not meritable out of the way and get on with the business of completing pleadings. Where it has merit, the first prize is won.

Therefore, where the other party has not consented to the special plea, exception or application to strike out within 10 days of their filing the matter has to be set down for hearing within a further period of 4 days. With the procedure for set down currently in place at this court where litigants are required to submit an application for set down to the Registrar before the matter is allocated a judge who would then give it a set down date, all the litigant is required to do to satisfy the provisions of that Rule is to file heads of argument in readiness and submit an application for set down. This has to be done within the four day period following the failure to consent.

In the event that the party pleading specially has not secured the consent of the other party to the special plea, exception or application and has not made an application to the Registrar of this court for a set down, that party loses the opportunity to have the special plea, exception or application to strike out determined at that early stage of the filing of pleadings. As they say, time waits for no one. In that event, the party has to plead over to the merits and the special plea, exception or application shall only be determined at the trial.

I am aware that Rule 223 provides for the set down of opposed exceptions and applications to strike out in Harare on a business day agreed with the Registrar not less than 6 business days before the day of set down. This only simplifies the procedure to the extent that even before the practice of having matters set down by the presiding judges, there was always a need for the date of set down to be agreed with the Registrar of the court to avoid a set down date which would have no takers.

In my view, the requirement for the filing of heads of arguments where the applicant or excipient is to be represented by a legal practitioner does not impugn the procedure for set down I have alluded to as, in terms of Rule 238(1)(a), the heads of argument should be filed before the matter is set down. I do not agree with counsel for the defendant that the practice of filing heads of argument makes it impossible for one to comply with the timeframes set out in the Rules. It boils down to the simple point that you should not file a special plea, exception or application to strike out when you are not ready to argue it. Prepare it together with the heads of argument for filing.

In this case, the defendant filed the plea on 14 August 2014. There was no consent to it. Instead, the plaintiff replicated to it on 25 August 2014 without the defendant having applied for a set down date. In fact, the defendant's legal practitioner only filed heads of argument on 4 September 2014 - 10 days shy of a month after the special plea was filed and paid for the service of the notice of set down on 18 September 2014.

This, the defendant could not do.

The Rules specifically prohibit the set down of a special plea in that manner. It cannot be set down before trial. The same point was stated in Mazibuko & Anor v Ndebele & Ors 2008 (2) ZLR 26 (H)…, that:-

“The applicants did not plead over to the merits when it is mandatory that they should do so. As if that was not bad enough, the applicants went on to set down the matter for argument before trial. The rules prohibit that. On that basis also, the Applicants are not properly before this court.”

I would therefore not countenance entertaining the special plea which has been set down for hearing in violation of the Rules. The matter is improperly before me.

Accordingly, IT IS ORDERED THAT:-

1. The defendant's special plea is hereby stood down for determination at the trial.

2. The defendant is directed to plead over to the merits of the claim within 10 days of this order.

3. The costs shall be in the main cause.

Generally, a plea is the answer by a defendant to the claim by the plaintiff as set out in particulars of claim or in a declaration, as the case may be. In addition to a plea which raises a defence on the merits of a claim, a defendant may also raise a special plea which has its object either to delay the proceedings or to quash the action altogether.

The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules, 1971. Order 21, Rule 137 specifies the manner in which a party wishing to rely on a special plea may raise such. It provides:

“SPECIAL PLEAS, EXCEPTIONS, APPLICATIONS TO STRIKE OUT AND APPLICATIONS FOR PARTICULARS

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 defence 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.

[Subrule amended by S.I.120 of 1995].”…,.

A special plea is an objection on the basis of certain facts which do not appear in the plaintiff's declaration or particulars of claim and has the effect of either destroying or postponing the action. The various forms of special pleas and the rationale underlying the procedure were set out by GILLESPIE J in Doelcam (Pvt) Ltd v Pichanick & Others 1999 (1) ZLR 390 (H)…, in which he said:

“The purpose of a special plea is to permit a defendant to achieve prompt resolution of a factual issue which founds a legal argument that disposes of the plaintiff's claim. Special pleas are three in kind. The plea in bar, by which a party may interpose a purely formal objection to the jurisdiction of the court. The plea is available as a plea to the jurisdiction or as a plea for the recusal of a judge and in no other case. Other special pleas are available to disclose some ground either for quashing or for delaying proceedings. Both are usually termed pleas in abatement, although that expression is properly used to describe the declinatory, rather than merely dilatory plea. The plea in abatement, strictly so called, avers some good ground, not disclosed in the declaration, which otherwise is admitted, for denying the plaintiff relief. The dilatory plea advances some fact, not disclosed in the declaration, which is otherwise admitted, and which entitles the defendant to a stay of proceedings.

Since a special plea involves the averment of a new fact, it is susceptible of replication and of a hearing at which evidence on this new fact alone may be led.”

The above dictum shows that a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim there is need for a judge faced with such a plea to hear evidence from the parties. HERBSTEIN & VAN WINSEN: The Civil Practice of the Supreme Courts of South Africa 5^th ed Vol 1…, in explaining the essential differences between an exception and a special plea, articulated the need to adduce evidence in the case of a special plea as follows:

“The essential difference between a special plea and an exception is that in the case of the latter the excipient is confined to the four corners of the pleading. The defence raised on exception must appear from the declaration itself; the excipient must accept as correct the allegations contained in it and he may not introduce any fresh matter. Special pleas, on the other hand, do not appear ex facie the pleading. If they did, then the exception procedure would have to be followed. Special pleas have to be established by the introduction of fresh facts from outside the circumference of the pleading and those facts have to be established by evidence in the usual way. Thus, as a general rule, the exception procedure is appropriate when the defect appears ex facie the pleading, whereas a special plea is appropriate when it is necessary to place facts before the court to show that there is a defect. The defence of prescription appears an exception to this rule for it has been held that the defence should be raised by way of special plea even when it appears ex the plaintiff's particulars of claim that the claim has prescribed, apparently because the plaintiff may wish to replicate a defence to the claim of prescription, for example, an interruption.”

In BECK's Theory and Practice of Pleading in Civil Actions 6^th ed., the learned author ISAACS…, states:

“Pleas in bar and pleas in abatement differ from exceptions precisely in this; that they do always introduce fresh matter which must be proven by evidence.”

In fact, when one has regard to the Rules of the High Court, one discerns a difference in the manner in which special pleas and exceptions ought to be dealt with. Rule 140 is pertinent in this regard. The Rule reads:

“140. Complaint by letter before applying to strike out or filing exception

(1) Before -

(a) Making a court application to strike out any portion of a pleading on any grounds; or

(b) Filing any exception to a pleading;

the party complaining of any pleading may state by letter to the other party the nature of his complaint and call upon the other party to amend his pleading so as to remove the cause of complaint.

[Subrules amended by S.I.43 of 1992]

(2) The costs of any such necessary letter and of any matters incidental to it, including any necessary conferences with another legal practitioner, shall be allowable on taxation.

[Subrule amended by S.I.277 of 1981]

(3) In dealing with the costs of any motion to strike out or of any exception, the provisions of this rule shall be taken into consideration by the court.”

Whilst prescription is by way of a plea, an exception is raised by way of a court application. In terms of our Rules of Court, an application shall be accompanied by an affidavit from a deponent who can swear positively to the facts contained therein. Critically, there is no provision for the filing of a court application where a special plea is filed, and when regard is had to the nature of the plea of prescription, that a determination on the facts as to when the cause of action arose, it must, by implication, become obvious that a factual dispute must be decided. This can only be determined by the parties leading viva voce evidence unless the dates are not in dispute.

This position of the law was put beyond question by BEADLE CJ in Edwards v Woodnut NO 1968 (4) SA 184 (R), in which he stated the following:

“The basic difference, however, between an exception and a plea in abatement is that in the case of a plea in abatement evidence must be led, whereas in the case of an exception the facts stated in the pleadings must be accepted.”

It can therefore be accepted as settled that evidence is necessary when disposing of a matter in which a special plea of prescription is raised. The rationale behind this is that where a party raises a special plea as a defence, new facts arise and because of the introduction of fresh facts which did not appear in the declaration, there is need for a court to hear the evidence of the parties where facts are disputed before making a ruling on the plea….,.

It is referred to as a special plea mainly due to its ability to destroy the action or postpone the proceedings.

The defendant's exception to the plaintiff's claim is premised on the averment that only the Labour Court may hear labour matters at first instance as provided in section 89 of the Labour Act [Chapter 28:01] as follows:

“89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions -

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(2)…,.

(3)…,.

(4)…,.

(5)…,.

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

On the night of 8 October 2013, at an unnamed road, in an unnamed part of Zimbabwe, a tractor belonging to the plaintiff, whose description and registration particulars are not given, was parked by the side of the road when it was hit by an unnamed motor vehicle belonging to the second defendant but driven by its employee, the first defendant, as a result of which it sustained damage requiring repairs at a total cost of $6,481=.

I mention this just to highlight how un-informative the plaintiff's pleadings are.

It is unbelievable how a pleading could so disarmingly lack particularity as to leave the reader nowhere near knowing what the claim is all about. One is left un-informed and no wiser as to where and how the accident occurred, what it involved, and who caused it.

We can only surmise that somewhere, at a place policed by Mvurwi Police Station (because the first defendant allegedly paid an admission of guilt fine at that police station), an accident involving a tractor occurred.

When formulating pleadings, legal practitioners should always bear in mind the purpose of pleading because the essence of any claim is found in the pleadings. The function of pleadings is to inform the other party, in concise terms, the precise nature of the claim they have to meet and also to identify the area of law under which the claim is made. Different branches of law require different matters to be specifically pleaded for a claim to be sustainable under that action: Chifamba v Mutasa and Others HH16-08; Nhau v Kafe and Another HH73-15.

The plaintiff has instituted summons action against the first, second and third defendants for payment of a total sum of US$196,656= being $7,920= for hiring equipment and $188,736= “being loss suffered by plaintiff as a result of not undertaking his farming activities to full capacity.” On the face of the summons he attempts to give a summary of the claim in the following:

“Plaintiff's claim against (sic) judgment against 1^st, 2^nd and 3^rd defendants jointly and severally, the one paying the other to be absolved for:

(a) Payment of the sum of US$196,656= the one paying the other being absolved broken down as follows:

(i) US$7,920= being the loss suffered by plaintiff as a result of not farming to full capacity.

(ii) Interest on (i) and (ii) above calculated at the prescribed rate from the date of issue of summons to the date of payment in full.

(iii) Collection commission an costs of suit on a legal practitioner and client scale.”

Something is badly wrong with the above passage in the summons. It does not make sense. While I appreciate that arithmetic has never been the strongest point for lawyers, the breakdown does not add up, they may now be adding another weakness - grammatical frailties.

In his declaration, the plaintiff averred, without making any reference to a motor vehicle driven by the first defendant, that the first defendant negligently caused the accident by driving without due care and attention and without taking proper care. As a result, his tractor was damaged requiring repairs at a cost of $6,481=. While his tractor, which is used for farming activities, was off the road, he was forced to hire equipment from the neighbours at a cost of $7,920=. He also lost income of $188,736= which he would have derived from farming.

The basis of the claim against the third defendant is only pleaded in paragraph 16 of the declaration which reads:

“16. The third defendant is the first and second defendant's insurer. 3^rd defendant has since paid for the repair of the tractor in the sum of US$6,481=. As insurer, the 3^rd defendant is jointly and severally liable to compensate the plaintiff for the loss.”

That is all that is said about the third defendant and nothing else.

The third defendant has excepted to the summons and declaration in the following:

“TAKE NOTICE that the 3^rd defendant excepts to the plaintiff's summons and Declaration as bad in law and more particularly in that:

1. Ad Summons

The summons does not disclose a cause of action and does not comply with the requirements of the High Court Rules as it does not contain a concise statement setting out the cause of action.

2. Ad Declaration

The claim by the plaintiff does not arise out of damage to its property it being clearly conceded that its tractor has since been repaired as at the date of the issuance of the summons. The plaintiff's claim is for consequential damages for which the third defendant, being an insurer for the purposes of section 23 of the Road Traffic Act, is not liable for.”

Counsel for the excipient submitted that the face of the summons does not comply with Rule 11(c) of this court's rules which requires that it must contain:

“A true and concise statement of the nature, extent and grounds of the cause of action and of the relief or remedies sought in the action.”

Although now with the benefit of several months of reflection and consideration, the action was instituted on 25 November 2014, counsel for the plaintiff did not see anything wrong with the face of the summons. As far as he was concerned, the import of Rule 11(c) is that the summons must establish a case for the defendant to answer. When his attention was drawn to the fact that even the breakdown of the claim does not add up, counsel for the plaintiff submitted, without seeking any amendment, that the summons is capable of amendment. Whether by that he meant that the plaintiff will move to amend the summons at a future date or that an exception cannot be made to a summons capable of amendment, he did not clarify.

I have stated that the summary of the claim is defective and does not make sense. It cannot pass in its present state. In fact, the entire pleading betrays in-attention and negligence on the part of the drafter which is of unacceptable levels. It fits squarely the description given by GILLESPIE J in Mavheya v Mutangiri and Others 1997 (2) ZLR 362 (H)…, that:

“The face of the summons, therefore, discloses profoundly muddled thinking on the part of whomsoever was responsible for drawing the summons. In fact, that defect is, however, mitigated by the filing of a declaration. One thus turns to this declaration in order to examine the cause of action.”

In my view, there is merit in the exception raised against the face of the summons. Ordinarily, where such an exception is upheld, the plaintiff would be afforded an opportunity to amend the summons within a fixed period of time and not an outright dismissal of the claim: Adler v Elliot 1988 (2) ZLR 283 (S)…,.; Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)…,.

It is the second leg of the exception which poses serious difficulties for the plaintiff.

I have said that the third defendant has been sued as an insurer of a motor vehicle. The requirement for insuring a motor vehicle for use on any road in this country is provided for in the Road Traffic Act [Chapter 13:11]. Section 22 of the Road Traffic Act [Chapter 13:11] provides:

“(1) Subject to this Part, no persons shall use a motor vehicle or trailer in a road unless there is in force in relation to the use of the motor vehicle or trailer by the user –

(a) A policy of insurance; or

(b) A security;

in respect of third-party risks which complies with the requirements of this part.”

This is the requirement for a statutory policy of insurance in respect of the use of motor vehicles.

Section 23 of the Road Traffic Act [Chapter 13:11] provides:

“(1) A statutory policy shall be issued by a person who is approved by the Minister as an insurer for the purpose of this part.

(2) Subject to this section, a statutory policy shall insure such persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by them in respect of –

(a) The death of, or bodily injury to, any property.

(b) The destruction of, or damage to, any property caused or arising out of the use of the motor vehicle or trailer concerned on a road.

(3) A statutory policy shall not be required to cover –

(a) Any contractual liability; or

(b)…,.

(c)…,.

(d)…,.

(4) Notwithstanding any other law, a person who issues a statutory policy shall be liable to indemnify the persons or classes of persons specified in the statutory policy in respect of liability which the statutory policy purports to cover in the case of those persons or classes of persons.”

Counsel for the excipient submitted that compulsory motor insurance against third party risk is limited by statute to death or bodily injury to any person and the destruction of or damage to any property caused or arising out of the use of the insured motor vehicle. It does not extend to consequential damages for failure to farm as a result of damage to property.

I agree.

The plaintiff has pleaded that the excipient discharged its obligations arising from the insurance of whatever vehicle collided with his tractor by paying the sum of $6,481= required to repair the tractor. He has not pleaded any other cause of action against the excipient averring only that “the third defendant is the first and second defendant's insurer.” He does not even begin to suggest there is any other cover in terms of which consequential damages are claimable against the excipient.

I do not agree with counsel for the plaintiff that the excipient's pleading amounts to a confession and avoidance of the plaintiff's cause of action and therefore cannot ground a valid exception.

Writing about confession and avoidance as a method of pleading to a claim, HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed, Juta and Co Ltd…, said:

“The defendant may admit the facts alleged in the declaration but seek to avoid the legal consequences by setting up other facts which, if established, would have the effect of such an avoidance. Thus, defendant, while he admits that he is bound in contract to the plaintiff as alleged, may wish to plead that he has been released from his obligations under the contract by reason of merger, pactum de non pretendo, fraud, misrepresentation, or one or other of the grounds which, if established, would release him from the usual consequences of the contract. All matters of confession and avoidance must be specifically pleaded.”

In my view, it is the plaintiff who has pleaded in such a manner as to admit facts and then release the excipient from the legal consequences of those facts. He has stated that, as insurer, the excipient has discharged the obligation of repairing the damaged tractor. No further liability has been pleaded.

There is therefore merit to the exception.

While the defect in the face of the summons can easily be rectified by an appropriate amendment, I do not think the plaintiff can do anything to save the absence of a cause of action against the insurer where he cannot allege the existence of insurance cover over consequential damages. Counsel for the plaintiff did not suggest that it exists but could not find it in him to concede that the plaintiff has blundered by suing the insurer in this matter. It means the end of the road for the plaintiff in respect of the excipient.

In the result, it is ordered that:

1. The exception of the third defendant is hereby upheld.

2. The plaintiff shall bear the third defendant's costs.

The plaintiff was, at the material time, an attested member of the Zimbabwe Republic Police stationed at Chiredzi Police Station. Following a conviction under the Police Act [Chapter 11:10], on 31 January 2012, he was sentenced to 7 days imprisonment at Fairbridge Police Detention Barracks in Bulawayo. He was being ferried to the detention centre in a police defender vehicle registration number ZRP 1544D on 1 February 2012 when the vehicle in question was involved in a collision with a Greyhound Omnibus registration number YRR 321 GP near the 89km peg along the Masvingo–Beitbridge road. As a result, the plaintiff sustained injuries for which he now sues the defendants for a total of $750,000= damages.

The plaintiff did not cite the driver of the police defender vehicle. He did not make an averment as to the cause of the accident. Neither did he allude to any legal basis upon which the defendants are liable. In fact, the summons and declaration, put together, do not even begin to disclose any cause of action.

The defendants have excepted to the summons on the basis;

(i) Firstly, that the plaintiff's claim is prescribed; and

(ii) Secondly, that the summons and declaration are bad at law to the extent that they do not disclose a cause of action.

The plaintiff was served with the Notice of Set Down of the exception on 14 January 2015 but chose not to appear.

Counsel for the defendants has applied for the dismissal of the plaintiff's claim on the basis that it is prescribed. He conceded that the second leg of the exception would not entitle the defendants to a dismissal.

The remedy available to an excipient, on the basis that a summons does not disclose a cause of action, is not an outright dismissal of the claim but an order directing the plaintiff to amend the pleadings within a fixed period of time: Auridium Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)…,.; Adler v Elliot 1988 (2) ZLR 283 (S)…,.

The plaintiff, Charles Ngoni, issued summons claiming US$15,000= being damages for shock, pain, suffering and medical expenses incurred as a result of unlawful detention and assault by the third defendant, Officer Chimedza, a police officer acting in the course and scope of his employment. The first and second defendants, being the Minister of Home Affairs and the Police Commissioner, respectively, were sued on the basis of vicarious liability.

The defendants filed a plea in bar on the basis that the plaintiff's claim had prescribed in terms of the relevant provisions of the Police Act [Chapter 11:10] which prescribes the time frame for bringing an action against the police. 

According to section 70 of the Police Act civil proceedings must be commenced within eight months of the cause of action.

An exception to the summons succeeds if the excipient shows that the summons and the declaration do not disclose a cause of action and that it is vague and embarrassing. It is not a process to challenge the evidence in the matter….,.

The onus of showing that a pleading is excipiable rests on the excipient. See Voset and Others v Kleynhans 2003 (2) SA 148 (C)….,.

The plaintiff referred me to the case of Francis v Sharp and Others 2004 (3) SA 230 where HJ ERASMUS J…, stated as follows;

“I preface evaluation of these exceptions by three preliminary observations. First, in Colonial Industries v Provincial Insurance Co. Ltd 1920 CPD 627 at 630 BENJAMIN J said in regard to the general approach to exceptions:

'Save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties an excipient should make out a very clear, strong case, before he could be allowed to succeed.'

Secondly, the courts are reluctant to decide upon exception questions concerning the interpretation of a contract…,. In this regard, it must be borne in mind that an excipient has the duty to convince the court that he had a strong clear case.”

In my opinion, this is not one such strong case made by the excipients.

In its heads of argument, the respondent raised three points in limine.

The first point was that the application for summary judgment was still pending on the basis that the applicant had not tendered costs. The second one was that the present application was not supported by a founding affidavit but by a supporting affidavit. The third point was that it is not proper for the applicant to file a court application to amend summons when an exception to the summons has been filed.

These issues were not pursued with in argument at the hearing and I will take it that they were abandoned, and, in my view, properly so…..,.

It is a practice of our courts that an exception is dealt with as an opposed matter. Once the matter is set down, as was the case in the present matter, the defendant must file Heads of Argument and prepare the record in terms of Rule 227. Thereafter, the Registrar will refer the file to a judge for a hearing.

In casu, the respondent did not do so, and, as a result the exception remains outstanding.

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage.

The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who are parents to the minor children, alleged that they had entered into a contract with the defendant on the following agreed terms;

1. That the two minor children would be escorted onto the flight and off the flight;

2. That they would be monitored and assisted throughout the flight;

3. That they would be cared for on the plane;

4. That they would be taken through immigration and handed over to a designated person, namely, Haruchemwi Christine Masuta;

5. That their documents would be kept safely by the airline staff who would hand-over same to Hamuchemwi C Masuku; and

6. That Hamuchemwi C Masuku would sign documents acknowledging receiving the minor children.

The plaintiffs alleged that, in breach of the terms of the contract, the minors were not taken care of nor provided any assistance. Instead, a stranger who happened to be a passenger on the plane was asked to assist the children. The plaintiffs alleged that, as a result, they suffered psychological trauma, pain and suffering and claimed $75,000= damages in respect of the first and second plaintiffs and $100,000= damages in respect of the third and fourth plaintiffs.

The defendant excepted to the summons and declaration on the following grounds;

(1) That since the carriage by air of the first and second plaintiffs from Harare to Johannesburg constituted an international carriage within the meaning of Article 1(2) of the Convention for Unification of Certain Rules relating to International Carriage by Air (Warsaw Convention) as ratified by section 3 of the Carriage by Air Act [Chapter 13:04], the cause of action should be premised on the Warsaw Convention.

(2) That the plaintiffs cause of action, being founded on the defendant's alleged breach of contract, cannot be sustained at law; and

(3) That the claims of the Carriage by Air Act and Warsaw Convention, being limited to instances of death or wounding of a passenger or any other bodily injury by a passenger, and the plaintiffs not having pleaded the essential elements, their claim is incurably bad at law.

The defendant prayed for dismissal of the plaintiffs claim with costs of suit on an attorney client scale.

I am indebted to the parties for the detailed heads of argument filed.

The defendant argued that claims arising out of air travel are specifically governed by the Warsaw Convention. Any claims should fall squarely within the four corners of the Warsaw Convention. Any claims falling outside the Warsaw Convention could not be sustained. Since the plaintiffs claims arose from a breach of contract, and, possibly, delict, their claims ought to be dismissed.

The plaintiffs, on the other hand, argued that the Warsaw Convention does not provide the “sole and exclusive” remedies to claims arising from carriage by air. The Convention, as it stands, does not specifically ouster claims arising under common law. In any case, the plaintiffs submitted that Article 17 of the Warsaw Convention does incorporate psychological trauma and distress. In case it is found that Article 17 is applicable, the plaintiffs argued that Article 17 is an archaic piece of legislation which is not justifiable in a dynamic and democratic legal system such as ours.

The first issue falling for determination is whether the Warsaw Convention provides the exclusive remedy to claims arising from carriage by air.

Article 1(1) of the Warsaw Convention provides;

“For the purposes of this Convention, the expression 'international carriage' means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a breath in the carriage or a trans-shipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for purposes of this carriage.”

The Warsaw Convention was ratified by section 3 of the Carriage By Air Act [Chapter 13:04]. That means that where there is conflict between the Warsaw Convention and common law, the Warsaw Convention should prevail and apply.

In the case of Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC) LORD HOPE stated that:

“The Convention describes itself as a 'Convention for the Unification of Certain Rules relating to International Carriage by Air'.

The aim of the Convention is to unify the rules to which it applies. If this aim is to be achieved, exceptions to these rules should not be permitted, except where the Convention itself provides for them. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code which could be applied by the courts…, without reference to the rules of their own domestic law.

The Convention does not purport to deal with all matter relating to contract of international carriage of law. But, in those areas with which it deals, and the liability of the carrier is one of them, the Code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.”

See also Eastern Airlines Inc v Floyd 499 US 530 (1999) where the United States Supreme Court held that an air carrier could not be held liable under Article 17 when an accident had not caused the passenger's death or to suffer physical injury or any physical manifestation of injury.

LORD HOPE, in Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC), went further to say;

“…,. To permit exceptions whereby a passenger could sue out with the Convention for losses sustained in the course of intentional carriage by air would distort the whole system, even in case in which the Convention did not create any liability on the part of the carrier. Thus, the purpose is to ensure that in all questions relating to the carriers liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available in any particular country where he chooses to raise his action.”

In the case of Impala Platinum Limited v Kolinklijke Lunchtraat Maatshappij NV and Another 2008 (6) SA 600 the court found that exceptions should not be allowed unless where the Convention itself provides for those exceptions.

From the law cited above, and case law, it is clear that claims arising out of carriage by air, are exclusively governed by the Warsaw Convention. Where the Convention provides no remedy it follows there is no remedy. The reason is so as to achieve a uniform application of air carriage laws without resorting to domestic law. It is therefore trite that the cause of action should be premised on the Warsaw Convention.

Having found the above, it is clear or apparent that the plaintiffs cause of action, having been founded on an alleged breach of contract and delict, cannot be sustained at law. See El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US155 (1999).

It is also trite that in terms of the Carriage By Air Act [Chapter 13:04], and the Warsaw Convention, claims are limited to instances of death or wounding of a passenger or any other bodily injury suffered by the passengers.

In the case of Morris v KLM Royal Dutch Airlines, King v Brishow Helicopters Ltd (2002) Z ALL ER 565 (HL) the court had the opportunity to consider the meaning of 'bodily injury' as provided for under Article 17 of the Warsaw Convention. It was held that such expression did not cover “a mental injury or illness that lacked a physical cause.”

See also Portgieter v British Airways/l 2005 (3) SA 133 (C) where a claim for negligently causing psychological shock to a passenger by an employee was dismissed.

Article 17 of the Warsaw Convention provides as follows;

“The carrier is liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage took place onboard the aircraft or in the course of any of the operations of embarking or disembarking.”

From a reading of the above, it seems that only physical injury is recoverable under Article 17.

It has been established that purely psychological injury is not sufficient in order to recover under the Warsaw Convention. Once an injury is psychological in nature, it is not recoverable.

In the matter in casu, the plaintiffs have not pleaded that they suffered physical injury leading to psychological injury. It is my view, therefore, that the plaintiffs claim falls outside the purview of the Warsaw Convention. The Warsaw Convention was designed to protect carriers from opportunistic claims as the one in casu.

I am of the view that the exception has been well taken and is upheld…,.

Accordingly I order as follows;

1. The exception be and is hereby upheld.