Cause of Action and Draft Orders re: Exceptions iro Further Particulars

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

Section 177 of the Criminal Procedure and Evidence Act [Chapter 09:07] reads:“177 Court may order delivery of particulars(1) The court may either before or at the trial, in any case if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons ...

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

After being furnished with further and further, and better, particulars to the plaintiffs' claim, the defendants filed their pleas.

HB129-10 : HERBERT VAN DEN BERG and CYNTHIA BESWICK vs FRANK LANG
Ruled By: MATHONSI J

At the first hearing of this matter, on 15 October 2010, counsel for the applicants requested a postponement to enable him to confer with the applicants on the allegations of abandonment which he was not aware of. It was drawn to his attention that he may need to supplement his papers because as they ...

HH125-13 : MICHELLE NYAMANGUNDA vs MASHONALAND TURF CLUB
Ruled By: MANGOTA J

As was stated in the foregoing paragraphs, the complexity of the matter, and the need on my part to appreciate the circumstances of this case, prompted me to call for the parties' record in the main case. That record was duly provided and I went through its contents. I, in particular, focused my attention on the respondent's declaration. I did so as I remained alive to the fact that the declaration forms the substance, or the basis, of the respondent's cause of action. On going through it, and without applying much effort to what was contained in the declaration, I realised that its contents raised more questions than answers. I realised, further, that the declaration as read together with Annexure J made it very difficult, if not impossible, for one to ascertain the exact relationship which the parties to this case had created between themselves. Annexure J is the letter which the respondent, through its legal practitioners, wrote to the applicant's legal practitioners on 17 November 2009. The applicant filed that letter as an annexure in support of its application. The letter, in extenso, reads:

“…, our client's position as outlined earlier on in the proceedings HC253/08 and our subsequent letter of 20^th April 2009. Your client had the right to occupy the portion described as the area extending from the middle of the eastern side of the shop floor rectangular in shape, together with the adjoining offices in the built up area of ZBS measuring approximately 35m². This is as per the attached shop floor illustration. Your client's right of occupation was on the basis of a sublease with the then substantive tenant Lunar Graphics (Pvt) Ltd which our client ratified. As far as our client is concerned, when it terminated the substantive tenants' lease, your client's right was also terminated and your client remained in occupation without our client's consent.

Our client has, since June 2009, entered into another lease with the former substantive tenant who has authority over the whole premises, 360m² in size. As Lunar Graphics are the tenant for the whole premises, if your clients want to regularise their position, they will have to approach Lunar Graphics, for our client cannot purport to lease out a portion of what they have already leased to Lunar Graphics.

What our client can only do is, if it is in Lunar Graphics' best interests and their best interests, ratify any agreement of sublease that your client may be granted as they have done previously. They reiterate that they are not due any rentals from you, but from Lunar Graphics and if you intend to compensate anyone for your unilateral occupation, then it has to be Lunar Graphics.

It remains that our client, as Lunar Graphics' landlord, has an obligation to ensure peaceful enjoyment of the whole leased premises and if your client's position is not regularised within a reasonable time; they will have no option but to institute proceedings to evict your client from the premises.”

The contents of the letter, Annexure J, spells in a clear and succinct manner that there was, or is, no privity of contract between the applicant and the respondent. The declaration, on the other hand, tends to suggest that the applicant was, or is, the tenant of the respondent.

Howard Mukundu, who is the respondent's Operations Executive, deposed to an affidavit in opposition to the application. His affidavit left the matter which related to paragraph 21.7 of Tatenda Maware's affidavit totally unanswered. Yet it is within the context of that paragraph that Annexure J was made part of this application. Paragraphs 16, 17, 18 and 19 of Howard Mukundu's affidavit confused the issues further than where the declaration and annexure J had left them. He states, in paragraph 16 of his affidavit that the issues surrounding the dispute between the parties centred on the fact whether the applicant was a tenant or subtenant. He goes on to state that the tender of rentals and subsequent acceptance of such tender by the respondent meant the formalisation of a landlord and tenant relationship. He states, further, and in the same paragraph that after the acceptance of the tender, the applicant was obliged to perform in terms thereof. All this, and many other observed matters which have not been specifically mentioned, run contrary to the letter and spirit of the contents of annexure J where the respondent stated, in clear and unambiguous language, that there is no privity of contract between the applicant and the respondent. The import of the last sentence of annexure J is that it is Lunar Graphics (Pvt) Ltd and no one else who has the right to evict the applicant.

Such matters as these are probably the reasons which prompted the applicant to request the respondent to furnish it with further particulars.

Accepting, as we must, that there is no privity of contract between the parties, the issue of the respondent's locus standi in the case cannot be glossed over let alone be ignored.

The relationship of the parties, it has been observed, is not as clear as the respondent seems to want to suggest. It is clouded with many interlocking matters which, in the interests of real and substantial justice, would have been cleared by the respondent furnishing the applicant with the particulars which the latter had requested. The answers which the respondent was going to give would, in all probability, have assisted the parties to clarify and define the relationship which existed, and exists, between the parties. The respondent was accordingly not being reasonable when it refused to furnish the applicant with answers to the questions which it had posed in the form of an application for further particulars. Counsel who are seized with this matter know as much as I do that litigation is not like a game of chess. It is not a game where one party makes a conscious and deliberate decision to ambush the other and, as it were, catch it unawares, so to speak. It requires little, if any, emphasis to state that the duty of counsel, as an officer of the court, is to protect the interests of its own client and to assist the court to arrive at real and substantial justice in any matter which is before the court….,.

It has been observed that this case requires further ventilation of issues. The ventilation would assist the parties to define the relationship which exists between them. That clarified position will be of benefit to the parties themselves as well as to the court which will deal with the main case.

On 8 May 2012, the applicant made, and filed with the court, a formal application for further particulars. It did so as it realised that there were issues which required clarification for its own benefit as well as that of the respondent and, more importantly, the court. The respondent unreasonably refused to furnish the applicant with the particulars which it had requested. From the time of the respondent's refusal to furnish the requested particulars to date, the parties went on what I may refer to as a wild goose chase with one party making every effort to knock the other down on procedural technicalities, which exclude the substance of the case, and the other putting up a spirited fight in an effort to remain in the boxing ring, if you may favour the comparison. The net effect of all this was that a lot of time was unnecessarily wasted when it could have been served for the benefit of the court which was, or is, dealing with the main case and the parties themselves.

Conclusion…,.

(i) …,.

(ii) Within 5 days of its receipt of this order, the respondent furnishes the applicant with the particulars which it sought from it on 8 May 2012;

(iii) Thereafter, the matter be, and is hereby, allowed to proceed in terms of the Rules of this court;

(iv) Each party bears its own costs.

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

Prior to the pre-trial conference…., the applicant had filed a request for further particulars. That request called on the respondent to provide information with regard to supposed improvements to the property so as to enable the applicant to prepare for trial as stipulated by Order 21 Rule 143.

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

I will refer to the parties as Intratrek, Chivhayo, Kazhanje, the PG, and the court a quo respectively. Where it is convenient to do so I will refer to the first three (3) parties as the applicants and the last two as the respondents or first and second respondent as may be appropriate.

Chivhayo is the Managing Director of Intratrek Zimbabwe (Pvt) Ltd. The latter is a company incorporated in terms of the laws of Zimbabwe. Kazhanje was, at the material time, the Board Chairman of the Zimbabwe Power Company (ZPC).

On 18 June 2019 they appeared before the court a quo at Harare Magistrates Court, sitting as an Anti-Corruption Court.

The applicants were facing a charge of bribery as defined in section 170(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In respect of Intratrek and Chivhayo, it was alleged that on 21 January 2016, at CBZ Bank, Kwame Nkrumah Branch, Harare the trio or one of them unlawfully gave or agreed to give or offered an agent, namely, Kazhanje then a director and Board Chairman of the Zimbabwe Power Company (Pvt) Ltd, a gift or consideration as an inducement or reward for doing or omitting to do or having done or omitted to do any act in relation to his principal's affairs or business or for showing or not showing or having shown or not shown any favour or disfavour to Intratrek and Chivhayo in relation to Kazhanje's principal's affairs or business.

In short, the charge was that Intratrek and/or Chivhayo bribed Kazhanje by transferring to him US$10,000 as an inducement or reward for facilitating or influencing the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board of Directors to make decisions favourable to Chivhayo and Intratrek in relation to the contract for the Gwanda Solar Project.

As for Kazhanje, he was charged for being the receiver of the bribe.

The State Outline then set out how the offence was alleged to have been committed.

On 28 May 2019, the first and second applicants had filed a request for further particulars to the charge and the State Outline. On 11 July 2019 the Prosecutor General's representative filed a response thereto.

Section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPE Act) provides that the court may order delivery of particulars to any matter alleged in a charge, summons, or indictment. It does not provide for delivery of particulars to any matter set out in the State Outline.

That is the first problem, in my view, with the request for further particulars. It is unlike in civil procedure where a request for further particulars covers both the summons and declaration/particulars of claim.

In that request, the applicants attached various annexures and sought admissions from the first respondent relative thereto. The admissions were made. In some cases, the first respondent indicated that what was sought was evidence and inferences which it would ask the court a quo to make from the evidence.

A total of twenty-eight annexures were attached to the request for further particulars. Admissions were sought touching on the identity of those documents and their place in the matter. The annexures comprised, among others, letters, contracts, and judgments of this court one of which has been overturned on appeal and the other whose appeal is pending in the Supreme Court.

Dissatisfied with what it perceived to be a reluctance to comply with some of the particulars requested, the applicants made an oral application, before the court a quo, for an order to compel delivery of those particulars.

The third applicant associated himself with both the request and the application.

The application was opposed, and dismissed. The court a quo found that what was requested was in fact evidence and therefore improper.

Next, the applicants excepted to the charge.

The submissions were these;

The third applicant argued that the defect was that the charge did not specify whether the US$10,000 was an inducement or a reward. Further, all three applicants argued that the charge, as amplified by the further particulars, did not disclose an offence.

The exceptions were based on section 170(2) and 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] respectively.

The court a quo dismissed the exceptions. It found no formal defect in the charge. It must have found, indeed it found, that the charge disclosed the offence of bribery. The reason is this. It found that what was requested constituted evidence. The charge, as it stood, disclosed the offence of bribery vis a vis the applicants.

The applicants are before us in an application to review the court a quo's decision.

The two grounds of review read as follows:

“1. The decision complained of is a grossly unreasonable abdication of judicial power in that the second respondent did not apply his mind to the substantive and procedural issues before him.

2. The decision complained of is patently contrary to law and determined the exception before the second respondent on an improper basis and is such that no reasonable judicial officer who had applied his mind to the facts would have reached the same decision.”

The first respondent opposed the application.

The parties filed heads of argument.

The first and second applicants made these submissions before us;

The second respondent's decision, dismissing the exception, was grossly unreasonable. The “common cause facts” show that there was no bribery. For example, it was admitted, by the first respondent, in replying to the further particulars, that the tender for the Gwanda Solar Project was awarded to Intratrek through Chivhayo by the State Procurement Board and not the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board which Kazhanje chaired. The ZPC Board's mandate was to implement the contract. There was therefore no basis for the first respondent to lead other evidence at the trial speaking to bribery of third applicant because it had admitted that it was the State Procurement Board (SPB) which awarded to the applicant the tender for the Gwanda Solar Project. The offence of bribery was therefore not disclosed.

Counsel for the third applicant referred us to the South African Supreme Court of Appeal decision in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking and Advertising Standards Authority SA 459/04 where that court held it proper to have regard to documentary evidence attached to pleadings in determining an exception.

My view is our law is different.

Evidence is inadmissible in determining an exception. Evidence is adduced at trial.

Counsel for the first and second applicants argument, on common cause facts showing that the offence of bribery was not disclosed, finds no favour with me.

We rejected this argument in Mupfumira and Another v Mutevedzi and Another HH200-20.

Firstly, there are no facts to talk about at this stage. There is nothing from the applicants in the nature of facts. They have not pleaded to the charge, tendered a Defence Outline, nor has any evidence been led which would found the basis for common cause facts, if any. All there is, at this stage, are the charge and the State's allegations as set out in its Outline.

What happened a quo, in my view, is that the applicants sought to truncate the trial by resorting to a procedure foreign to our law. Under the guise of seeking particulars to the allegations in the charge they expanded the request to cover allegations set out in the State Outline. They went further to seek admissions disguised as further particulars. The State seemed not to have initially noticed, a quo, that the applicants had sought to jump the gun. Admission of facts is a procedure available at the trial, post plea, and tendering of a Defence Outline, before the State has opened its case.

The multitude of questions contained in what was called a request for further particulars, the annexures thereto and the answers solicited were correctly disregarded by the court a quo in determining the exception. The time will come when evidence will be led, with exhibits, if any, produced in accordance with the rules of evidence.

I also take the view that the charge does not become defective by dint of characterizing the US$10,000 as either an inducement or a reward. These are alternatives speaking to the same charge of bribery.

Looked at from another perspective, counsel for the applicants, while purporting to be seeking further particulars, were actually cross examining the Prosecutor General's (PG) representative. The latter was responding, again through what was called a reply to the further particulars.

There is no law in our jurisdiction sanctioning the PG's representative to be subjected to cross-examination either pre-trial or at the trial itself, either through papers filed of record or orally.

The net effect of what was done was to delay the trial.

The court a quo dismissed the exception because it was based on what was effectively evidence improperly put before it as well as evidence sought to be prematurely placed before it. We see no merit in the application for review. We are remitting the matter to the court a quo for trial.

From the record of proceedings put before us, the applicants first appeared before that court around 18 July 2019. It appears the matter was then ready for trial. What this means is that the applicants have managed to delay the commencement of the trial by a period of one year.

Counsel for the third applicant asked us to consider a court record which was not before the court a quo. The argument birthed by that record was also not placed before that court.

We were told that the third applicant has since been convicted of contravening section 173 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) viz corruptly concealing from a principal a personal interest in a transaction. The facts and evidence were said to be the same as in the bribery charge. He submitted that there was therefore an improper splitting of charges as well as a basis for arguing that the third applicant was previously convicted of an offence arising from the same set of facts and evidence.

Section 180 of the Criminal Procedure and Evidence Act [Chapter 9:07] lists nine (9) pleas that can be pleaded to a charge. The usual ones are guilty or not guilty. But, section 180(2)(c) provides that a person can plead that he or she has already been convicted of the offence with which he is charged.

It is not necessary that I discuss whether that plea is available to the third applicant. What is important is that section 186 of the Criminal Procedure and Evidence Act provides that issues raised by a plea (except that of guilty or a plea to the jurisdiction of the court) shall be tried. The third applicant should therefore plead to the charge. The matter should be tried.

Further, whether there was a splitting of charges placing the third applicant in danger of a duplication of convictions on the same evidence is an issue which we cannot consider at this stage.

If he is convicted his remedy may be to raise that as one of his grounds of appeal.

Counsel for the third applicant referred us to a number of South African and Zimbabwean cases on this point. They include Zachariah v The State, Criminal Appeal number APP 331/01.

The application for review, in the circumstances, has no merit.

The present is not one of those rare cases where grave injustice might otherwise result or justice might not, by other means, be attained if we do not interfere in the un-terminated proceedings in the court a quo; see Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd and 2 Ors SC59-19; Dombodzvuku and Anor v Sithole N.O. and Anor 2004 (2) ZLR 242 (H).

In the result, it is ordered that:

1. The application for review be and is dismissed.

2. The matter is remitted to the court a quo for the applicants to plead to the charge with the matter proceeding to trial.

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

BACKGROUND FACTSThe respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first ...

BACKGROUND FACTS

The respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first appellant is the editor of the Newsday Newspaper, with the second appellant being the publisher, printer and distributer of the publication.

On 19 May 2014, the respondents, as plaintiffs, instituted proceedings by way of summons claiming damages for defamation arising out of an article published by the second appellant on 6 July 2012.

On 23 November 2016, the High Court dismissed with costs an exception filed by the appellants in answer to the claim for defamation damages instituted by the respondents herein. The court also ordered the respondents to furnish the appellants with the particulars of the exact words being relied on in the defamation suit within a specified period from the date of judgment.

This appeal is against that judgment.

In their declaration in the suit described above, the respondents alleged that one Francis Mhere had, on 5 July 2012, written a letter to the first respondent imploring him to rein in his spouse, the second respondent. The letter alleged that the second respondent was meddling in, and involving herself in child custody issues between Francis Mhere and his wife.

The respondents alleged that, without establishing the veracity or truthfulness of allegations in the letter, the appellants had gone ahead and published an article on 6 July 2012 in the Newsday publication of that day. The respondents alleged that the article was defamatory of and concerning them. It is alleged that despite the falsity of the article, the appellants published the statements in the letter which were made with the intention of making a public spectacle of the first respondent in the office of Ambassador with the intention of injuring his reputation.

It was further alleged that the statements were understood by the ordinary reasonable man within the readership of the Newsday newspaper to mean that the second respondent was out of control, meddled in other people's affairs, was selfish and cruel, vindictive in nature, and was not a law abiding citizen, and lacked moral fibre.

Based on the above allegations, the respondents claimed damages for the article published by the appellants in the sums of USD120,000 and USD80,000 respectively.

The appellants did not plead. They jointly filed an exception and application to strike out in the form set out hereunder:

“A. No cause of action disclosed.

1.1. First Defendant is cited as Constantine Chimakure cited herein in his capacity as the Editor of Newsday Newspaper.

1.2 First Defendant as cited does not exist and no cause of action is consequently disclosed against first defendant. Alternatively, the proceedings are as against first defendant a nullity. (sic)

1.3 First plaintiff does not allege that the publication on which he sues and its unnamed words were published of and concerning him. No cause of action is consequently set out in favour of first plaintiff. (sic)

1.4 Second plaintiff does not allege that the publication of 6 July 2012 was made of and concerning her. No cause of action is consequently set out in favour of second plaintiff.

B. Vague and embarrassing

1.5 Plaintiff alleges in para 9 of the declaration that -

'Defendant went ahead and published a damning article on 6 July 2012 on page 2 of that publication to the Plaintiff's mortification and detriment'.

In paragraph 11 they allege -

'The article contained falsehoods of a venomous type'.

1.6 The words complained of which are alleged to appear in the said article are not set out and their effect cannot be ascertained.

1.7 The claim is consequently vague and embarrassing.

C. Application to strike out

1.8 Plaintiffs tell a story in a declaration made up of 21 paragraphs. The declaration is argumentative, superfluous, irrelevant is crafted in breach of the rules of court and must be struck out.(sic)

Wherefore, defendants pray, in the main, that the exception be upheld and the claim be dismissed with costs. Alternatively, defendants pray that the declaration be struck with costs.”

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the parties made the following contentions. As regards the appellants, it was contended, firstly, that the summons and declaration did not disclose a cause of action primarily because the first appellant, as defendant, did not exist. It was argued that the improper citation rendered the proceedings a nullity.

It was also contended that the summons was vague and embarrassing because the exact words published were not set out in the declaration. It was argued, further, that the declaration told a story which was superfluous, irrelevant, and argumentative contrary to the rules of court. To that end, it was only right that the declaration be struck out as being vague and embarrassing.

Premised on the above arguments, the appellants prayed that the exception be upheld with the claim being dismissed with costs. In the alternative, the appellants prayed that the declaration be struck out with costs.

The respondents countered by arguing that the first appellant, a natural person, had been properly cited. The description of the first appellant, as Editor of the newspaper, did not render the citation defective in any manner.

As to the objection that the summons and declaration did not allege that the publication was made of and concerning the respondents, it was contended that the declaration alleged that the publication made reference to a letter wherein certain specific allegations were made of both respondents. It was argued that the exception to the summons and declaration should, as a consequence, be dismissed with costs.

Turning to the allegation that the summons was vague and embarrassing, it was argued that the claim was not vague or embarrassing. In this regard, it was argued that the prayer for the striking out of the declaration should be dismissed with costs.

It was further contended that the prayer for the dismissal of the claim, in the event of the exception being upheld, was misplaced. The proper course, it was argued, would be to afford the respondents an opportunity to amend the declaration.

The court a quo reasoned as follows:

“The defendants do not know which words are defamatory according to the plaintiff and this is 'embarrassing' to them. See National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984; Sutton v Brown 1926 AD 155 @ 163; Demmers v Wylie & Ors 1980 (1) SA 835 @ 842D.

In the alternative, the objection taken is that the declaration is argumentative, superfluous, irrelevant, and is crafted in breach of the rules. The declaration tells a story, it is not a pleading. See Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H) @ 236F-237A where it was held that;-

'Procedure, by way of notice of motion, though often convenient, is far less disciplined than procedure by action. A good novelist can write a series of exciting affidavits, and, at the end, claim large sums of money. It takes a lawyer to draw a declaration.'

Taruona v Zvarevadza & Ors HH87-12; Mwayisa v Jumbo & Ors HH03-10; Morris v Morris & Anor HH71-11.

Rule 99 (c) of the Rules of this court provides that:

'A pleading shall -

…,.

(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 proved.'

It is trite that a pleading which is irrelevant must be struck out. See Stephens v De Wet 1920 AD 279 @ 282; Golding v Torch Printing & Publishing Co. (Pty) Ltd & Ors 1948 (3) SA 1067 (C) @ 1090.

It is my considered view that the defendants' remedy lies in an application for further particulars if they are of the view that the exact words relied upon by the plaintiff's ought to form part of the summons and declaration. This would cure the defendants' embarrassment, if any. An exception which goes to the root of the matter and is calculated to divest the plaintiffs of any vestige of a cause of action is ill conceived in these circumstances, and inappropriate.

We find merit in the submission made on behalf of the plaintiffs that the case law which is relied upon by the defendants is distinguishable from the circumstances of this case and inapplicable. That case implies that the court must exercise its discretion in the circumstances of the case before it, and in this case, it is my view that the defendants are not embarrassed by the plaintiff's claim to the extent that the plaintiff's case should be dismissed by the upholding of the exception. Rather than delay the resolution of this matter further, the court directs that the plaintiffs set out the exact words that they allege to be defamatory as they appear in the letter which they refer to in the declaration.”

The court a quo dismissed the exception with costs being made to be in the cause. The respondents were ordered to furnish the appellants within a period of ten days, with the particular words on which the claim for defamation was premised.

THE APPEAL

With the leave of this court, the appellants have noted an appeal on the following grounds:

“1. The court a quo erred in holding that the appellants' exception did not go to the root of the respondents' claim. At law, where a party fails to plead and set out actual allegedly defamatory statements upon which its claim for defamation is based, then such pleading is patently defective and cannot be amended.

2. The court a quo further erred in holding that the appellants' exception was without merit and worthy of dismissal. Such holding was, at law, anomalous on account of the finding by the same court that the respondents' pleadings were deficient and called for better particulars.

3. The court a quo erred in granting to the respondent's relief that was not sought or pleaded. There was no cause for the amendment of the respondents' pleadings, and, the court went beyond the purview of its jurisdictional mandate in ordering an amendment and particularizing the details of such amendment.

4. Additionally, the court, again, erred in disregarding the mis-citation of the first appellant. At law, a summons that cites a non-existent person or capacity is a nullity.

5. The court a quo grossly misdirected itself and erred in holding that the respondents' declaration was capable of being pleaded to. Once a declaration is vague and embarrassing the defendant ought not to be required or compelled to plead to it.”

Three issues for determination emerge from the grounds set out above;

(i) First and foremost is whether or not the citation of the first appellant is defective rendering the summons and declaration a nullity as contended by the appellants.

(ii) The last two issues are whether or not the summons and declaration do not establish a cause of action rendering them subject to an exception and also vague and embarrassing and liable to be struck out.

ARGUMENTS ON APPEAL

...,. On the substance, the argument for the appellants went as follows;

The court a quo misdirected itself and erred in affording relief which had not been sought and which amounted in the order of things to an acceptance that the exception was well taken. It was suggested that the court a quo purported to be exercising a discretion which it was not imbued with. For this proposition, counsel for the appellants sought reliance on Forestry Commission v Moyo 1997 (1) ZLR 254 (S)....,.

Counsel for the respondents submitted that the relief afforded by the court was correct and that the court was empowered to exercise its discretion in the manner it did....,.

ANALYSIS OF THE DISPUTE ON APPEAL

For the sake of convenience, I will begin with the nature of the relief ordered by the court a quo. The court dismissed the exception. It found that the pleadings were not excipiable.

Once the court found that the exception was not well taken it could not exercise the discretion of affording the respondents an opportunity to file further particulars. Such indulgence could only follow upon a finding that the exception was well-taken.

To that extent, it is my view that the court was guilty of a misdirection....,.

The court a quo ordered the respondents to furnish further particulars to the appellants. This was despite the finding that the exception had not been successful.

In my view, the court, having found that the appellants had not been embarrassed, should have confined itself to dismissal of the exception. That said, it is my considered view that no prejudice will ensue if the order for the provision of the letter is left untouched. The respondents have not appealed that order and I see no reason to interfere with it.

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

This is an exception by the defendant to the plaintiff's summons and declaration, as amplified by further particulars, on the grounds that the plaintiff's claim does not disclose a cause of action.

The defendant further avers that the claim is bad in law.

The background to this case is that the plaintiff had sued for damages in the Magistrates' Court in an action he had stated as “trespass on person-battery”. As no appearance to defend was entered, he sought default judgement. The magistrate threw out his application, and, in doing so, stated that the plaintiff had sued for “trespass on land”.

The plaintiff appealed against the decision and the appeal is pending in this court.

Arising out of those circumstances, the plaintiff has, in this matter, instituted an action for damages against the defendant, being Secretary–Judicial Service Commission.

The plaintiff relies on vicarious liability, and is suing the defendant in a representative capacity as the employer of the magistrate who dismissed his case.

The action is defended.

The plaintiff's claim is couched as follows:

“The failure or omission to read accurately all the plaintiff's documents filed of record at court by the plaintiff in this matter, that has a cause of action of 'Trespass to the person-battery' which the magistrate read as 'Trespass to land'…, inexplicably.”

The plaintiff further states that he is suing the defendant in contract and delict in her representative capacity.

The defendant requested for further particulars; upon being furnished with same, the defendant raised an exception to the plaintiff's summons.

The exception is premised on the following grounds:

(i) The summons do not reveal a cause of action for its claim against the defendant thus does not comply with the peremptory provisions of Order 3 Rule 11(c) of this court's rules which specifically provides that a summons shall contain “a true concise statement of the nature, extent, and grounds of the cause of action and of relief or remedies sought in the action.”

(ii) The summons are vague and embarrassing in that it is not clear whether the plaintiff's claim is in contract or in delict. The plaintiff has not averred any of the elements required to succeed in a claim either in delict or contract.

(iii) There is no action known as “professional negligence for mental suffering” which further points to the fact that the claim is vague and embarrassing.

The defendant sought dismissal of the plaintiff's claim with costs at a higher scale.

After service of the exception on the plaintiff, he filed a document headed “Notice of Amendment” in which he sought to amend the claim indicating that at the hearing he was to apply to amend the summons.

No such application was made on the day of the hearing.

Suffice to say, the notice of amendment would not have changed the state of papers as nothing materially changed apart from creating further confusion.

Before the hearing, the plaintiff raised issue that the defendant had not filed her heads of argument on time since they were filed after the plaintiff had filed a response to the exception and filed a notice to amend summons, hence, the defendant was barred.

The defendant's counsel disputed that assertion insisting there was no bar in operation against the defendant.

The court found no merit in the plaintiff's assertion.

Clearly, the defendant filed heads of argument on 2 November 2015 and served same on plaintiff; the plaintiff filed his on the 12th November 2015, hence, there is no issue of delay in that aspect and no bar operated against the defendant.

The court proceeded to hear the matter on the merits.

Counsel for the defendant argued that the plaintiff's summons did not satisfy the mandatory requirements set out in Rule 11(c) of the High Court Rules; that omission rendered them a nullity. She referred the court to the case of Bank of Credit & Commerce Zimbabwe Ltd v Jani Investments (Private) Limited 1983 (2) ZLR 317 (H)…, where, faced with similarly defective summons, the court remarked:

“It will be immediately realised, of course, by someone who runs very quickly as he reads, that the summons is wholly invalid since it discloses no cause of action whatever. Any exception to such summons can only succeed instantly and completely.”

She further argued that the summons was vague and embarrassing as it did not disclose whether the claim was based in delict or contract law.

In response, the plaintiff maintained that a reading of the summons and declaration, which documents were complimentary, made issues clear. Further, he had filed a notice of amendment.

The heads of argument filed by the plaintiff were not helpful as they contained a lot of historical evidence and did not further his case.

I agree with the submissions made by the defence counsel regarding the non-compliance and the inadequacy of the summons and declaration.

A reading of the summons, declaration, and further particulars, clearly reveals that these documents contain long winding explanations duly tainted with allegations of bribery, corruption, and political interference against different court officials.

There is no true and concise statement of the nature, extent, and grounds of the cause of action.

Facts and evidence are all mixed up and one gets to pains as to determine the facts upon which, at law, one can rely on to sustain a claim.

In ODGERS Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 2nd Ed…, it is stated as follows;

“The object of pleadings is to ascertain, definitely, what is the question at issue between the parties and this object can only be attained when each party states his case with precision.”

It is this precision that, in my view, Rule 11(c) of this court's rules advocates for.

The reason behind Rule 11(c) is to ensure that a summons be a document that clearly and concisely sets out the facts that the plaintiff relies on which establish a cause at law for which specific relief can be sought. Compliance with the requirement would create or bring out a case to which the defendant is able to answer. It must be clear, to the defendant, what it is he is alleged to have done giving rise to the plaintiff, at law, to claim the relief sought.

Rule 99(c) of the High Court Rules, although not referred to by the defendant, comes to play. It states that;

“A pleading shall -

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

There has to be a summary of allegations of fact which, in law, give rise to a claim or justify the relief sought.

In casu, facts in the summons and declaration are so mixed up so as to cloud the case to which the defendant has to answer. In essence, they are vague and embarrassing so as to go to the root of the claim.

The court further agrees with the defendant's submissions that it is not clear under which branch of law the plaintiff is suing.

Be it in delict or contract, the plaintiff has failed to satisfy the elements that sustain a claim under either of the branches.

In purporting to claim delictual damages, the plaintiff's declaration reads as follows:

“(i) There was damage of mental suffering directly arising out of the magistrate's ruling to the plaintiff which is actionable under negligence law.

The plaintiff bases this averment on what he considers to be failure by the defendant to recruit a competent magistrate.”

The issue is: there is no cause of action like 'damage of mental suffering'.

Even if one can sue for mental distress, the facts alleged do not support liability.

The plaintiff appealed against the judgment granted in the Magistrates' Court.

Further, one cannot sue a magistrate for damages when he/she is acting in their professional capacity for mis-interpreting the law or the facts, hence the appeal and review processes.

Of note is the fact that the defendant in this matter is the Secretary–Judicial Service Commission; apart from not being the employer of Ms Dzikiti, the alleged magistrate (the employer being the Judicial Service Commission) the sitting magistrate herself was not cited.

Most important, as the defendant is not an employer in the circumstances no vicarious liability can attach to her.

The contractual claim is stated as follows:

“The plaintiff is suing in contract because the plaintiff paid court fees being in consideration for a competent (a fit and proper ruling).”

The question is; in paying for court fees, did the plaintiff enter into a contract with the sitting magistrate?

This is not so, as court fees are meant for processing of papers and never for the judgment.

In Ebrahim v Controller of Customs and Excise 1984 (1) ZLR 41 (HC) McNALLY J…, considered, at length, the meaning of 'cause of action' as defined by scholars and in certain judgments. As a result, the accorded meaning in that case was stated as:

“The entire set of facts which give rise to an enforceable claim, this includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim.”

My understanding is that the plaintiff has to specifically plead material facts that entitle him to relief under the specific branch of the law.

This, the plaintiff has failed to do.

From the pleadings, no material facts have been averred to sustain a claim for damages under delict or the law of contract.

Notably, the plaintiff had not made the claims in the alternative; he sought to rely on both causes of action for the same relief. As demonstrated, none of the claims could hold.

In HERBSTEIN and Van WINSEN, Civil Practice of the High Courts of South Africa, 5th ed, Vol 1…, the learned authors clearly deal with the purpose of an exception:

“The aim of the exception procedure is thus to avoid the leading of unnecessary evidence and to dispose of a case, in whole or in part, in an expeditious and cost-effective manner. Thus, pleadings whose contents are so vague and it is impossible to determine the nature of the claim or the defence and pleadings which are bad in law in that their contents do not support any legally recognised cause of action or defence are struck out.”

Certainly, the plaintiff's claim does not disclose a legally recognised cause of action: the facts pleaded do not inform the defence in concise terms the claim the defendant has to answer to. The summons and declaration are fatally defective - the pleadings are incurably bad.

The claim can therefore not stand.

In the premises, the exception has to be upheld; this being the expeditious and cost effective way of disposing the case without putting the defendant to unnecessary expense.

Where an exception is upheld, the court is at liberty to grant the affected party an opportunity to amend its pleadings. This, in the case of a plaintiff, could be in the form of leave to amend the particulars of claim, if so advised, within a specified period of time as the court may determine.

As alluded to earlier, the plaintiff had filed a notice of amendment.

A reading of the proposed amendment shows that the contents are argumentative and consist of historical and evidentiary facts not necessary in a pleading. In essence, the summons and declaration, and the proposed amendments, consist of pleadings which are incurably bad - nothing can be salvaged. This, coupled by the fact that the party sued is the wrong party, the defendant not being the employer, and there being no direct legal relationship between the parties, granting the plaintiff leave to amend his pleadings is a futile exercise.

In such an instance, the court has no option but to order dismissal of the plaintiff's claim....,.

1. The defendant's exception is upheld.

2. The plaintiff's claim is dismissed with costs on a legal practitioner and client scale.

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing ...

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.

It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing the plaintiff to litigate on the matter. By the time the litigation was resolved, in favour of the plaintiff, the imported resin, which remained uncleared for customs purposes, had become moribund and useless to the importer, thereby causing the total loss that was claimed in the summons under various heads…,.

The claim was defended primarily on the basis, that, in seeking to levy duty on a higher tariff than previously levied, the defendant was not acting with malice and that its actions were not wrongful and unlawful to ground an action in delict. Further, it was denied that the containers of the imported resin were presented to the defendant for the purposes of customs clearance.

The facts giving rise to the suit between the parties are largely common cause.

The plaintiff is an established public company, specializing in the production and manufacture of timber and timber products. It is listed on the local bourse. As part of its manufacturing processes, it uses a certain resin (hereinafter referred to as “the chemical”), that is imported into the country and import duty paid.

Over a period of about ten years, the plaintiff imported this resin at a steady 5% duty payable to the defendant.

In or about February 2005, the plaintiff received four containers of the imported chemical. When it presented the chemicals to the defendant for clearance, duty was levied not on the usual and expected 5% but at 25%.

The plaintiff approached this court for adjudication on the correct level of duty payable and its contentions were upheld. The defendant immediately noted an appeal against the decision of this court. In the meanwhile, the parties reached an agreement that the four containers be released upon the plaintiff paying a deposit against the required duty.

Again, in the meanwhile, in May 2005, the plaintiff imported into the country ten other containers of the chemical while the legal wrangle was still on. There is a dispute as to whether these ten containers were presented for customs clearance or not….,.

On 7 April 2006, the Supreme Court handed down its judgment, upholding the High Court judgment and vindicating the plaintiff's stance.

In June 2006, the ten containers of the chemical were cleared by the defendant at 5% duty. It was then discovered that the chemical had become moribund and valueless to the importer.

On 27 September 2006, the plaintiff issued summons against the defendant as detailed above.

In the summons, the plaintiff claimed the sum of US$285,123=76 as the replacement value of the chemical that went moribund; US$20,016=44 as the value of orders that were lost as a result of the plaintiff's failure to use the moribund chemical; and the sum of US$404,807=80 as damages for lost business.

At the trial of the matter, three issues had to be resolved by evidence. These were;

(i) Firstly, whether the order issued by this court also covered the ten containers, the subject of this dispute; and

(ii) Secondly, whether the ten containers were presented to the defendant for duty purposes;

(iii) Thirdly, in issue was the quantum of damages that the plaintiff would be entitled to in the event that the defendant was found liable.

In support of its case, the plaintiff led evidence, firstly, from one Joseph Chikwana. He was the plaintiff's Purchasing Manager at the time the dispute arose.

His testimony was largely to reiterate the facts that are common cause in this dispute concerning the first four containers of the chemical. Regarding the ten containers forming the subject of this suit, he testified as follows:

These were imported about six months after the first four and in respect of which the parties were before this court, locked in litigation over the correct tariff to be used for calculating duty. The ten containers came through Beira, and, when they arrived in Mutare, the plaintiff sought to have them cleared. The plaintiff did not submit any documents to the defendant as there was a pending case between the parties. The containers were placed in a bonded warehouse.

When the customs clearance agent came back with the news of the stalemate between the parties, the witness personally visited the defendant's office and was attended to by a Mr Chamboko and a lady officer who was assisting Mr Chamboko. The discussions referred to the pending case and the parties felt that they could not move from that position due to the pending litigation. The defendant demanded duty at the higher rate which the plaintiff was not in a position to pay at the time.

The witness was involved in the formulation of the claims that the plaintiff finally brought against the defendant.

He explained that the claim for $22 billion was the fees that the plaintiff paid to the agent to have the containers released.

During the period of the dispute, the plaintiff had pending orders from its overseas customers. Because of the time it took to resolve the issue, the plaintiff was unable to meet the orders, resulting in the orders being cancelled. The value of the lost orders was captured in a spread sheet that the plaintiff's Finance Department generated. The spread sheet was adduced into evidence. The value of the lost orders was in the sum of US$74,134=97.

Using a profit margin of 27%, the plaintiff claimed damages in the sum of US$20,016=44 under this head.

The chemicals expired whilst they were in the containers and awaiting clearance. The value of replacing the chemical was in the sum of US$285,123=76.

During the time that the parties were locked in the dispute, the plaintiff could not produce most of its products and thus lost business due to the unavailability of its products. It calculated this loss at US$404,807=80. Another spread sheet was adduced into evidence, through the witness, showing the plaintiff's calculation of the lost business.

The plaintiff tried to mitigate its damages by borrowing glue from other timber processing companies.

When the judgment of the High Court became available, in November 2005, the witness took the judgment to the defendant, seeking release of the ten containers. He was informed that the defendant would appeal against the judgment - which they did.

Pending determination of the appeal, the plaintiff again approached the defendant for the release of the containers. The approach was not successful leading the plaintiff to approach this court on a certificate of urgency. No judgment was handed down in the matter which was heard on 8 December 2005.

In my view, the witness is an articulate and confident man who fared well under cross examination. He was forthright in his answers to questions put to him under cross-examination and readily admitted to some of the shortcomings in the assumptions that had been used in calculating the damages claimed by the plaintiff. While I found the witness unnecessarily verbose in his responses, I have no reason to disbelieve his evidence.

The second witness to testify on the plaintiff's behalf was one Prince Nyemba. At the time, he was the plaintiff's Finance Director. He joined the plaintiff's employment in August 2006 and was not yet with the plaintiff in May 2005 when the events forming the subject of this trial were unfolding. The plaintiff naturally keeps records of its transactions and the witness had access to these.

The witness then testified as to what the plaintiff's records revealed its loss to be as a result of the delay in having the glue released to it by the defendant.

Under cross-examination, the witness admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production.

Due to the fact that the witness was not an employee of the plaintiff at the relevant time, and also due to the concessions that he made under cross examination, that the plaintiff's claim was aggressively if not inaccurately calculated, I shall place marginal probative value on his testimony and will only rely on it where it is corroborated by other reliable evidence.

After the testimony of this witness, the plaintiff closed its case.

The defendant opened its case by calling one Clements Kwenda. He is employed by the defendant as a team Leader at Forbes Border Post, having joined the then Department of Customs and Excise in 1990.

The witness detailed the procedures that an importer of goods into the country has to observe before his or her goods can be cleared. Regarding the claim before the court, he testified as follows:

The plaintiff imported two separate lots of chemicals. Firstly, it imported four containers of the chemicals. An entry for the four was submitted to the defendant. A dispute arose as the defendant called for duty at a rate higher than the plaintiff was offering. The matter was then referred to the courts. At a later stage, and while the matter was pending before the court, the plaintiff paid a deposit for the release of the four containers.

As at 25 February 2005, the plaintiff was aware that it could have the ten containers released upon payment of a deposit.

In respect of the ten containers, Bills of Entry for the ten were submitted to the defendant on 29 June 2006. The containers were all cleared on the same date. Prior to this, he was unaware of any letter that the plaintiff had written to the defendant seeking the release of the ten containers. He was aware that a letter had been addressed to the defendant's Harare office though he had not seen it.

Under cross-examination, the witness could not dispute, that, for the previous eleven years the plaintiff had imported the chemical at 5% duty. In his opinion, the officer who inspected the goods and asked for duty at a higher rate was simply doing his work and did not err. He did not agree that the departure from the classification that had been used for the past eleven years had been done with an improper motive.

The witness gave his evidence well. I find that most of his testimony was on facts that are common cause. He was clear as to what transpired between the parties although his attempt to draw a distinction between the Harare and the Mutare offices of the defendant was without basis. On the main, I will rely on the testimony of this witness.

The defendant called the testimony of one Clifford Mubaiwa Chamboko next. He is the man in charge of the defendant's offices in Mutare.

On 17 February 2005, a meeting was held in his office pertaining to the clearance of the four containers. The plaintiff's first witness and the clearing agent were in attendance. The tariff dispute between the parties was discussed.

At no stage did the defendant refuse to accept the entry relating to the ten containers. There was no meeting between the parties regarding the ten containers.

Under cross-examination, the witness maintained that the defendant was justified in re-classifying the imported chemicals. He pointed out that the classification of imports is a complex matter and that for that matter, errors would occur.

The witness gave his evidence in a very measured way; so measured was he, that, at times, he appeared slow. Despite this, I have no reason to disbelieve his evidence as, in my view, there are few material disputes of facts in this matter.

After the testimony of this witness, the defendant closed its case.

At the pre–trial conference of the matter, eight issues were identified for trial as follows:

1. Whether the declarator issued by the Honourable Justice Hungwe, under case no HC838/05, covered the four containers or the ten containers, which are the subject matter of this dispute;

2. Whether the containers were declared for duty purposes;

3. What is the procedure to be followed by an importer of goods in circumstances where there is a dispute in relation to a consignment that has been declared for duty purposes;

4. Whether, in the absence of compliance with such procedure, any liability attaches to the defendant;

5. Whether the defendant is liable to the plaintiff in respect of contents (that) became moribund as well as the customs clearance, storage charges and demurrage charges associated with the containers;

6. Whether the defendant is liable to the plaintiff for special damages in respect of cancelled orders and lost business;

7. In respect of all damages, the quantum of damages that may be awarded to the plaintiff, if any; and

8. What order is to be made as regards costs.

In my view, the issue that falls for determination in this trial, in the main, is whether or not the defendant's conduct was culpable under the lex Aquilia. If so, what damages did the plaintiff suffer?

I narrow down the issues in this manner as, in my view, resolution of issues one to four, as settled at the pre-trial conference, will not resolve the dispute between the parties.

Having listened to the evidence of the parties, it appears clear to me that while the declarator by HUNGWE J specifically dealt with the four containers in respect of which a dispute had been formally declared, his ruling, and that of the Supreme Court on the matter would bind the parties in the importation of similar chemicals and would thus have a direct bearing on the importation of the ten containers.

I also note that while the ten containers may not have been formally presented to the defendant for clearance, the parties were locked in a dispute over the four containers in respect of the duty payable, and, on a practical note, the defendant was most unlikely to accept duty at the lower tariff pending determination of the litigation that was then unfolding between the parties.

The parties are all familiar with the procedures that have to be observed in relation to the importation of products and an answer to this question will, in my view, not bring us nearer to the resolution of the matter than we were when we started off.

I further form the view that the plaintiff has not approached this court because the defendant allegedly did not clear the ten containers of the chemical. The dispute between the parties relates to the defendant's insistence on the incorrect rate of duty after the High Court ruling, and, the issue that arises, in my view, is whether such insistence, including the unsuccessful approach to the Supreme Court on the issue is culpable and renders the defendant liable to the plaintiff in delict.

I now return to the issues as I see them.

In my view, the plaintiff's claim could have been pleaded with greater clarity to reveal the plaintiff's cause of action against the defendant. I must confess, that, I am at a loss as to the cause of action that the plaintiff is raising against the defendant. I had hoped that the cause of action would become clear with the leading of evidence and the final submissions by counsel in the matter.

Unfortunately, it has not...,.,

The plaintiff has pleaded, in its declaration, that the defendant acted wrongfully against the plaintiff, leading to the plaintiff incurring certain losses.

Reading through the plaintiff's declaration, I discern three possible actions by the defendant that the plaintiff appears to be terming “wrongful”:

(i) Firstly, the plaintiff alleges, in paragraph 4 of the declaration, that the defendant acted wrongfully and unlawfully when it demanded duty for the first four containers at 25%.

(ii) Secondly, it is alleged, in paragraph 6, that the defendant acted wrongfully and unlawfully and with malice when it noted an appeal against the decision of this court.

(iii) Finally, the plaintiff alleges, in paragraph 7, that the defendant acted wrongfully by refusing to clear the ten containers on duty other than the erroneously calculated 25%.

As pleaded above, the plaintiff alleges wrongful action leading to an economic loss without grounding its claim in the lex Aquilia that requires a mental element in the form of negligence or dolus before liability can be founded.

It is my understanding of our law of delict that actions under the lex Aquilia are meant to compensate the plaintiff for the damages occasioned to him or her by the wrongful act attributable to the defendant's fault. Thus, for a successful prosecution of a claim under the action, a plaintiff must prove a wrongful act by the defendant, patrimonial or economic loss, and fault on the part of the defendant.

It is common cause that the plaintiff has not pleaded that the defendant acted negligently in the circumstances of this matter. No particulars of the negligence are pleaded. The plaintiff has not specifically pleaded that the defendant acted intentionally and that it intended to cause loss to the plaintiff by its actions.

It is trite, in my view, that in an action founded on the lex Aquilia, the mental element status of the defendant must be specifically pleaded so that the defendant knows the case that it has to meet. Lack of such particularity, in my view, is fatal to the plaintiff's claim as it does not disclose the plaintiff's cause of action.

On this basis alone, I would absolve the defendant from the instance.

However, I am somewhat handicapped by two events that did not occur in this matter:

(i) Firstly, the defendant did not except to the plaintiff's pleadings for the cause of action to be crystallized before the defendant pleaded thereto.

(ii) Secondly, the matter proceeded through a pre-trial conference where the parties appeared to have been agreed that what was being pleaded was the lex Aquilia and the real issue for determination was whether the defendant was liable to the plaintiff for the pure economic loss that resulted from the defendant's actions.

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

The appellant was discharged from the Public Service. He had been suspended from duty by the Secretary to his Minister, and, later, served with charges to which were attached certain documents. The letter containing the charges was signed by a Mr Moyo on behalf of the Secretary to the Ministry.The ...

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

The plaintiff (Meikles) issued summons against the two defendants, Zimbabwe Stock Exchange (ZSE) and Alban Chirume (Chirume) claiming a declaratur and damages in the sum of $50,000,000.

The background to the matter is that on 16 February 2013, the defendants suspended the trading of Meikles shares on the Zimbabwe Stock Exchange.

The suspension was done without affording Meikles an opportunity to make representations before such a serious adverse action was taken.

On 26 February, the defendants placed an advert in the Herald Newspaper cautioning the public to “exercise caution in dealing with the plaintiff's shares.”

The suspension was eventually lifted.

The defendants entered appearance to defend and filed an exception on behalf of both defendants and a special plea in bar in respect of Alban Chirume.

I must, at the onset, deal with the nature of pleadings before me.

The plaintiff's summons and declarations is ten pages and to it is attached two letters as annexures. The defendants' exception is three pages and the second defendant's plea in bar is one page.

Order 3 Rule 11 of the High Court Rules 1971 on this issue provides:

“Before issue, every summons shall contain -

(a)…,.

(b)…,.

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

The author, ISAACS. in Beck's Theory and Principles of Pleading in Civil Actions, 5ed…, had this to say:

“17. Before the court is asked to decide any question which is in controversy between litigants it is in all cases necessary (except as hereinafter indicated) that the matter to be submitted to it for decision shall be clearly ascertained.

The plaintiff shall state, in concise terms, what facts he intends to rely on and to prove and the defendant shall do the same so that on the day of trial neither party shall be taken by surprise and that it may not be necessary to have the case adjourned, thereby causing wasted expense both litigants from which the State and the lawyers alone derive profit.

It has therefore often been stated by our courts, and it cannot be too often stated, that, the object of requiring the parties to file pleadings is to enable each side to come to trial prepared to meet the case of the other.”

The authors HERBASTEIN and Van WINSEN in The Civil Practice of the High Courts of South Africa, 5th ed…, stated the following about pleadings:

“The requisites of good pleading are said to be that it should contain a statement of -

(1) Fact, not law;

(2) Material facts only;

(3) Facts not evidence; and

(4) Facts stated in a summary form and that 'material facts' are all facts which must be proved in order to establish the ground of claim or defence.”

MATHONSI J, in Fungai Nhau v Memory Kipe and Anor HH73-15, confronted with what he terms long winding special plea in bar/abatement, had this to say:

“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 (as she then was) 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 is 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.'”

I associate myself fully with the above remarks.

Maybe if the legal practitioners in this matter had taken heed of the advice, the present application might not have been made....,.

The Exception

The defendants contend, that, the plaintiff failed to establish a cause of action against the defendants in that it failed to aver, with particularity, all the essential requirements for liability in a delictual claim.

They further contend that there is no link between the alleged negligence and the loss suffered by the plaintiff.

The declaration does not state the manner in which the patrimonial loss arose. The claim for the alleged fall in the share price of the plaintiff's shares cannot be made by the plaintiff as it does not own the shares.

The defendants contend that there is no recognizable cause of action which is contained in the plaintiff's declaration both in respect of the declaration and the claim for damages.

The plaintiff relies on section 14 of the High Court Act [Chapter 7:06] for the issuance of a declaration.

No right has been identified. Instead, the plaintiff seeks a declaration on a state of affairs which are factual and are in the past.

He relied on MDC v The President of the Republic of Zimbabwe 2007 (1) ZLR 257 (H) for his submissions.

The plaintiff also alleges a breach of administrative law duties in terms of Administrative Justice Act [Chapter 10:28] in order to justify the declaration and the claim for damages.

The relief provided for in terms of section 4 of the Administrative Justice Act does not include a declaratory order.

The plaintiff seeks to rely on section 66 of the Administrative Justice Act on the basis that once it establishes a breach, it must be granted the relief that it seeks.

That is a misreading of the Rules.

Section 66 follows section 65 which provides that the Zimbabwe Stock Exchange has power to make rules regulating the conduct of their members. The plaintiff cannot rely on section 66 as it gives power to the Zimbabwe Stock Exchange to control its own members. The power is not available to a member.

Counsel for the plaintiff submitted that, at this stage, the plaintiff has to set up a framework for the court to go by. Whether it can prove facts is another issue.

The Declaratur

He submitted that many grounds were pleaded, viz;

(i) That the defendants acted outside the law;

(ii) That the defendants did not accord the plaintiff the right to be heard;

(iii) That was in breach of section 3 of the Administrative Justice Act.

He further submitted that there is a concrete controversy between the parties. The action is not in the past and the grant of the declaratur raises the question of whether the defendant must pay damages or not.

The Damages Claim

Counsel for the plaintiff submitted that section 66 of the Administrative Justice Act is binding upon both the plaintiff and the defendants. The question would be whether the defendants are capable of breaching the rules in section 66. If so, then they caused damage to the plaintiff.

Whether they did so or not is a matter of evidence.

He further submitted that if one attacks the reputation of a company, shares of the company will suffer loss. The price at which a share trades is directly linked to how the company performs. The question of quantum is an actuarial issue.

Paragraph 22 of the declaration makes the allegation that the illegality has affected the plaintiff. The plaintiff claims for purely economic loss.

The Law

An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain a specific cause of action or the specific defence relied upon: see HERBSTEIN and Van WINSEN, The Civil Practice of the High Court of South Africa 5th ed…,.

The learned authors…, continue by saying:

“In order to disclose a cause of action, the pleading must set out every fact (material fact) which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment of the court.”

See also Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H); Dube v Banana 1998 (2) ZLR 92 (H); and Abrahamse & Sons v SA Railways & Harbours 1933 CPD 626.

The fundamental question to ask is whether the plaintiff had pleaded every material fact to be proved to entitle it to succeed in its claim.

The material facts are the facta probanda (the facts which are required to be proved in order to succeed in the cause of action) and not the facta probantia (the facts which would serve to prove the facta probanda); see Jowel v Bramwele Jones & Ors 1998 (1) SA 836 W…,.

The Declarator

In MDC v The President of Zimbabwe & Ors 2007 (1) ZLR 257 (H)…, MAKARAU JP…, set out the legal principles applicable when a declaratur is sought and the mental steps that the court must follow in determining whether to issue a declarator.

These principles include that the plaintiff must show that there is a right or obligation which becomes the object of enquiry. At p269C she made the following observation:

“It appears to me, from a reading of the above authorities, that what is required to be contended is a legal right and not the factual basis upon which a right may be found.”

The defendants contend that the plaintiff, in its pleadings, did not identify any right.

In casu, there can be no doubt that the legal right, subject to the claim, has been identified and properly articulated.

The plaintiff pleaded that the defendants did not accord the plaintiff the right to be heard. This is a principle established in the Constitution, Administrative Law, and in terms of common law.

The plaintiff has therefore established, that, there is a right whose existence has been pleaded. Whether the plaintiff will be able to establish that right, it is a different issue.

The Damages Claim

My view is that the plaintiff has pleaded the essential elements of a delictual claim. If it were to succeed in obtaining a declaratur, then, it could have established a link between the defendant's conduct and its loss.

As counsel for the plaintiff correctly pointed out, the issue of quantum is a matter of actuarial evidence.

The plaintiff pleaded, that, as a result of the unlawful activities of the defendants, which affected its share price, certain losses were caused to it which are recoverable from the plaintiff.

This is a purely delictual claim whereby the plaintiff alleges that its patrimony has been diminished by the conduct of the defendant and that it should be restored.

The concerns by the defendants, of lack of particularity, can be cured by making a request for further particulars.

I want to conclude by saying that one can sympathise with the position taken by the defendants in that although one can discern a cause of action for the summons and declaration, it is a long winding and inelegantly drafted pleadings.

For this reason, although the plaintiff has succeeded, I will depart from the norm that costs follow the cause. This is due to the fact, that, had the pleadings been drafted in terms of the Rules, the exception would not have been taken.

My view is that the plaintiff's pleading disclose a cause of action.

In the result, I will make the following order:

(1) The exception is hereby dismissed.

(2)...,.

(3) There is no order as to costs.

HH68-16 : THE TRUSTEES FOR THE TIME BEING OF THE PHOENIX TRUST N.O. vs GIDEON HWEMENDE and OTHERS
Ruled By: CHIGUMBA J

This is an exception filed on behalf of the plaintiff to the 8th defendant's (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes) plea and counterclaim.

The plaintiff's contention is that the 8th defendant's plea is vague and lacks the averments necessary to sustain a defence.

The plaintiff contends, further, that this exception goes to the root of the 8th defendant's case, and is thus properly taken.

If the plaintiff's contentions are correct, then the exception will be upheld.

The court must ask itself whether the 8th defendant's plea and counter-claim contain sufficient particulars to constitute a valid defence and sustain a proper claim to the shareholding in the two property companies which is the main bone of contention between the parties. The Court must decide whether the exception is one of substance, which goes to the root of the claim, and whether upholding the exception will dispose of the main matter without delving into the merits.

The background giving rise to the exception is that summons for a declaratur was issued against the ten defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai, Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes, Registrar of Companies N.O. and Master of the High Court N.O.) on the 31st of March 2015.

The plaintiff sought a declaratur that the appointment of the first to seventh defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai) as directors in Beverly East Properties (Private) Limited and Karoi Properties (Private) Limited (hereinafter known as the two property companies) was illegal, null, and void.

The plaintiff sought the nullification of all CR14 forms and all other statutory documents issued by the 9th defendant (the Registrar of Companies) in confirming the appointment of the directors.

The plaintiff sought a second declaratur that its appointment of directors to the two property companies was lawful.

The consequential relief sought was the reinstatement of the previous directors in the two property companies and an order directing the ninth (9th) defendant (the Registrar of Companies) to do all things necessary to give effect to such reinstatement.

In the declaration to the summons, the plaintiff averred that it is a representative of the trustees for the time being of the Phoenix Trust in their official capacities.

The 1st-8th defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai and Oliver Masomera) are all private citizens.

The 8th defendant (Oliver Masomera) is cited in his official capacity as the curator bonis of the estate of the late Brian Rhodes, who created the plaintiff.

The 9th (the Registrar of Companies) and 10th (the Master of the High Court) defendants are cited in their official capacities.

The plaintiff holds the entire shareholding in the two property companies, which both own immovable property, in terms of a judgment of this court, HH424-13, and various other judgments of this court, HC3848-11, HH52-13.

The first defendant (Gideon Hwemende) was one of the parties who had laid claim to the shareholding in the two property companies prior to the determinations by this court that the entire shareholding vested in the plaintiff.

As a result of the claim, the plaintiff contended that the first defendant unlawfully and fraudulently appointed himself and the 1st -7th defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai) as directors of the two property companies and proceeded to submit CR14 forms to the 9th defendant (the Registrar of Companies) to confirm their directorship.

The legitimate directors of the two property companies were removed after the misrepresentation to the 9th defendant (the Registrar of Companies).

No general meeting constituting a quorum of members, as required in terms of the Companies Act [Chapter 24:03], was convened to sanction these appointments.

Confusion now reigns amongst the plaintiff's tenants and other stakeholders and presently there is no one in charge of the two property companies.

Unknown persons have been collecting the rentals from the two property companies, to the plaintiff's prejudice.

On 16 April 2015, the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes) entered an appearance to defend to the summons; the first defendant (Gideon Hwemende) entered its appearance to defend on the 22nd of April 2015.

On 3 June 2015, the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes) filed a plea to the plaintiff's claim in which he averred that he is the executor dative of the estate late Brian James Jones; he holds the entire shareholding in the two property companies on behalf of that estate; he was not part of the court proceedings in which this court determined the shareholding in the two property companies in favor of the plaintiff and is currently challenging those judgments, HH424-13, HC617-15; it is the plaintiff and the other defendants who are misrepresenting facts to deprive the 8th defendant of its shareholding; it is the plaintiff which fraudulently and illegally created documents purporting to donate the authorized share capital of the two property companies to itself.

The 8th defendant filed a counterclaim in which he averred that the two property companies each had two issued shares held by the late Brian James Rhodes, the shares accrued to his estate on his death, the plaintiff's claim to those shares is fraudulent and illegal, a declaratur should be issued in his favour that the plaintiff expropriated the issued shares in the two property companies, and that the donation of the shares was null and void.

A second declaratur that the entire issued shares in the two property companies are held by the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes).

On the 3rd of July 2015, the plaintiff filed an exception to the 8th defendant's plea and counterclaim in which it averred that; the 8th defendant's case is vague and lacks the averments necessary to sustain a defence or an action, more particularly, that; the 8th defendant failed to set out the legal basis on which he asserted that the entire shareholding of the two property companies is held by the estate late Brian James Rhodes.

The plaintiff averred that the 8th defendant failed to set out which facts it misrepresented to deprive the estate of its shareholding, or of the date when the plaintiff became aware of this fact. Further, the 8th defendant failed to identify the person who is alleged to have fraudulently and illegally created documents purporting to donate the authorized share capital of the two property companies to the Trust. The 8th defendant is challenged to specify the date on which the shares were allocated to the late Brian James and to specify how the plaintiff fraudulently and illegally expropriated the issued shares and how the plaintiff expropriated the issued shares.

It is common cause that the plaintiff served a letter of complaint on the 8th defendant on the 29th of June 2015, in accordance with the requirements of Rule 40 of the Rules of this Court, and that the 8th defendant did not respond to or attend to the complaints raised in that letter.

Turning to the law that applies in cases such as this one, it is well established that a litigant must know the case that it needs to meet: see Trinity Engineering (Private) Limited v CBZ 2000 (2) ZLR 385 (H), which relied on Timesecurity (Pty) Ltd v Castle Hotel (Private) Limited 1972 (1) RLR 155 as authority for this proposition.

In one of my own judgments, Ritenote v A. Adam & Co, HH83-14, the circumstances in which an exception may properly be taken were said to be where the claims are not clear or concise in fact and in law.

The plaintiff's summons and declaration must disclose sufficient particularity, and a cause of action which is appropriate at law and which is not contradictory or mutually destructive.

The plaintiff contends that the failure to set out the basis on which 8th defendant avers that the late Brian James Rhodes held the entire shareholding in the two property companies constitutes insufficient particularity to establish the 8th defendant's defence and cause of action in its counterclaim.

The same complaint applies to the rest of the pleadings that the plaintiff excepts to.

Heads of argument on behalf of the 8th defendant were filed on the 2nd of November 2015. One of the main points of law raised was that the 8th defendant has an application filed in HC617-15 and set down for hearing on 20 November 2015 involving the same parties in which rescission is sought, of the judgment which gave the plaintiff rights over the two property companies.

It was contended, that, the Master of the High Court is aware of the plaintiff's fraudulent claims and that he appointed the 8th defendant to investigate these claims on behalf of the estate.

The 8th defendant contended that the summons is not properly before the court because they refer to a curator bonis which ceased to exist in 2014. The summons is excipiable on the basis that they disclose no cause of action against the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes).

I find myself in agreement with the proposition put forward on behalf of the 8th defendant, that, when dealing with matters of exception, if evidence can be led which can disclose a cause of action on the facts, as alleged in the pleading, then that pleading is not excipiable: see Mckelvey v Cowan N.O. 1980 ZLR 235.

See also Levenstein v Levenstein 1955 (3) SA 615 (SR), where it was held that;

“No doubt, these are proper questions, but, recognition of that fact does not mean that an exception can be founded upon every questionable allegation; the embarrassment must be such that it cannot be removed by a request for further particulars. (see the remarks of DAVIS J, in Kahn v Stuart & Ors 1942 CPD 386 @ p392).

In my view, there should have been a request for further particulars; had that been done, the plaintiff's difficulties might well have disappeared.”

A declaration must state, lucidly, each of the facts constituting the plaintiff's cause of action: see Koth Property Consultants CC v Lepelle-Nkupi Local Municipality 2006 (2) SA 25 (T)…,.

The learned authors, HERBSTEIN & Van WINSEN, The Civil Practice of the Superior Courts in South Africa (3rd ed)…, state, that, where some essential element of the plaintiff's cause of action is not pleaded, it is not disclosed; and, that, where the pleading is contradictory or vague, the defendant would be prejudiced in his defence, and, that, an exception must be upheld in these circumstances.

The 8th defendant's defence, and cause of action for the counterclaim, is premised on allegations of fraud.

Fraud is a criminal offence, whose essential elements must be proved.

It cannot, in my view, be said that the plaintiff does not know the case that it must meet.

What the 8th defendant has done, in essence, is to turn the tables on the plaintiff and make similar averments to those made by the plaintiff in the summons and declaration.

If the 8th defendant's plea and counterclaim is vague and embarrassing, so is the plaintiff's summons and declaration, premised as both sets of pleadings are, on the same set of facts between the same parties.

The plaintiff did not state who in particular amongst the 1st-7th defendants allegedly fraudulently caused their appointment as directors and the removal of the previous directors.

On what basis does the plaintiff now seek to complain that the 8th defendant similarly has failed to disclose specific names of the alleged perpetrators of the fraud against the estate late Brian James Rhodes?

In my view, the paucity of particulars in both sets of pleadings can be cured by appropriately worded requests for further particulars.

The plaintiff was fishing for information when it took this ill-advised exception. It has remedies in terms of the Rules. This finding is supported by the following set of cases; Rheeder v Spence 1978 (1) SA 1041 (R) and McKelvey v Cowan NO 1980 ZLR 235 (GD)…, where the court said 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.”

See also William & Taylor v Hitchcock 1915 WLD 51; Strand Meat Co. (Pty) Ltd v Smith 1930 CPD 24; Fuxman v Brittain 1941 AD 273; and Schultz v Nell 1947 (2) SA 1060…,.

It cannot, in my view, be said that the plaintiff does not know the case that it must answer.

Evidence can be led which can disclose the names of the specific perpetrators of the fraud on the plaintiff, or on the 8th defendant in terms of its counter claim.

The taking of the exception was ill advised, and, on shaky ground at law from the outset.

It seems to me, that, taking an exception to the contents of the pleadings, as a tool of litigation, is a strategy which must be carefully thought out, and which must be used only in those circumstances where the upholding of the exception is more likely than not, to dispose of the matter.

The risk of wasting the court's time, or incurring unnecessary costs, or causing unwarranted delay in the resolution of the main matter, is only justifiable where a favorable result to taking the exception is likely.

To discourage over-litigiousness and a dereliction of duty as officers of the court, on the part of legal practitioners, it has become vital for this court to award punitive orders as to costs as a shield against its process being abused by the taking of exceptions which either have no merit, or which are unlikely to dispose of the matter.

In the circumstances of this case, the exception taken by the plaintiff had no merit from the outset.

For these reasons, the plaintiff's exception be and is hereby dismissed with costs on a legal practitioner and client scale.

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules 1971.

The applicant, a local authority is obliged by the law to provide certain services to residents of the City of Bulawayo which services include the provision of road maintenance, refuse collection, and water and sewer services.

The respondent is a resident of the City of Bulawayo and is the registered owner of a certain immovable property otherwise known as Number 58A Robert Mugabe Way, Bulawayo.

In fulfillment of its legal obligations, the applicant provided the services stated above to the respondent and raised service charges amounting to US$20,126=40.

The respondent failed and/or refused to pay the above mentioned service charges and the applicant issued a summons on 10 December 2013 claiming:

(a) Payment of $20,126=40 being the total service charge due and payable;

(b) Interest a tempore morae, at the prescribed rate, from the 30th day of January 2011 to the date of payment;

(c) Costs of suit.

The summons was served on the respondent on 13 December 2013 and it entered appearance to defend on 17 December 2013. On 10 January 2014, the respondent's legal practitioners requested for further particulars as follows:

“To enable the defendant to plead, plaintiff should supply the following particulars;

1. It is alleged in para 3 of plaintiff's declaration that it provided services to defendant, and, as such, is entitled to levy; rates; road levy; water, and other services; of the $20,126=40, how much is for:

(i) Rates;

(ii) Road levy;

(iii) Water; and

(iv) Other services.

2. The said sum is $20,126=40 is for which period (sic), a full itemized breakdown is requested.

3. The claimed sum is said to have a component of rates:

(a) How much is the monthly rates in respective of the property;

(b) Since the rates are a percentage of the value of the property, how much is the property valued at.”

The applicant supplied its further particulars on 18 March 2014 as follows:

“Plaintiff replies to defendant's request for further particulars as follows:

1. Ad paragraph 1 thereof

(i) The charges vary from month to month but charges are calculated as shown from Annexure “A” hereto which represent the charges for 30th November 2013 totalling $770=36 and for 31st December 2013 in the sum of $699=27.

(ii) For the period 30th January 2011 to the 30th November 2013 amounting to $20 215=50. See Annexure “B” hereto”.

2. Ad paragraph 2 thereof

See Annexure “B” hereto.

3. Ad paragraph 3 thereof

(a) $500 see Annexure “A” hereto.

(b) Land valued at $393,500 and improvements valued at $65,000. See Annexure 'A' hereto.”

The respondent, who was supposed to have filed his plea on or before 3 April 2014 in terms of the Rules of this Court, failed to do so.

The applicant applied for summary judgement on 17 April 2014 on the ground that the respondent has no bona fide defence and that the appearance to defend, and the request for further particulars, were nothing more than ways of buying time.

HH226-18 : SAKUNDA ENERGY (PVT) LTD and SAKUNDA LOGISTICS (PVT) LTD and KUDAKWASHE TAGWIREI vs MAYOR LOGISTICS (PVT) LTD and JUSTICE WADYAJENA
Ruled By: HUNGWE J

In November 2017, the plaintiff (respondent in this application) instituted action against the defendant (the present applicant) claiming the payment of certain amounts of money due and payable in terms of a compromise agreement entered between the parties.

The defendant has still not filed a plea. It has, however, filed two requests for further particularity to the claim.

This is an application to compel the furnishing of further particulars in terms of Order 21 Rule 141(b) of the High Court Rules 1971.

The last of such requests was filed on 29 November 2017 wherein the plaintiff insisted that the particulars requested were not necessary for the defendants to plead.

The defendants then filed the present application. The plaintiff opposes the application to compel.

In terms of the rules of court, particulars of a claim may be supplied on the principle that:

“A litigant is entitled to know the cause or defence he has to meet; not only to know whether he should admit or deny the particular allegation. He is entitled to be placed in the position of being able to decide whether to persist in his claim or defence.”

The particulars to which a litigant is entitled, however, are particulars of averments forming part of the opposing case; or, put another way, particulars of matters in respect of which the onus is on the opponent.

A litigant is not entitled to request particulars of matters the onus in respect of which is upon himself.

Where particulars are sought, the incidence of onus is important, and, particulars will not be ordered of matters which form no part of the plaintiff's cause of action or which relate to matters extraneous to the facto probanda put forward by the plaintiff: see Trinity Engineering (Pvt) Ltd v Commercial Bank of Zimbabwe Ltd 2000 (2) ZLR 385.

The defendant, applicant in the present case, clearly seeks matters that are not necessary for them to plead.

The bulk of the matters are apparently matters on which they bear the onus.

Clearly, this amounts to a fishing expedition where the defendants hope that information that they may use during cross-examination might be disclosed.

That is not the purpose of seeking further particulars.

In any event, the defendants have not averred, that, without the information requested they would be embarrassed in their pleading. Such an averment is necessary in that they would have to demonstrate in what way they would be embarrassed thereby necessitating the furnishing of the requested particulars.

Having failed this hurdle, I dismissed the application with costs at the hearing.

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Law Portal
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Cause of Action and Draft Orders re: Exceptions iro Further Particulars

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HB129-10 : HERBERT VAN DEN BERG and CYNTHIA BESWICK vs FRANK LANG
Ruled By: MATHONSI J

HH125-13 : MICHELLE NYAMANGUNDA vs MASHONALAND TURF CLUB
Ruled By: MANGOTA J

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

HH68-16 : THE TRUSTEES FOR THE TIME BEING OF THE PHOENIX TRUST N.O. vs GIDEON HWEMENDE and OTHERS
Ruled By: CHIGUMBA J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

HH226-18 : SAKUNDA ENERGY (PVT) LTD and SAKUNDA LOGISTICS (PVT) LTD and KUDAKWASHE TAGWIREI vs MAYOR LOGISTICS (PVT) LTD and JUSTICE WADYAJENA
Ruled By: HUNGWE J

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Law Portal Zimbabwe

Cause of Action and Draft Orders re: Exceptions iro Further Particulars

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA Ruled By: BHUNU J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAKARAU JP

HB129-10 : HERBERT VAN DEN BERG and CYNTHIA BESWICK vs FRANK LANG Ruled By: MATHONSI J

HH125-13 : MICHELLE NYAMANGUNDA vs MASHONALAND TURF CLUB Ruled By: MANGOTA J

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA Ruled By: HUNGWE J

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O. Ruled By: CHIKOWERO J and KWENDA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA Ruled By: GOWORA JA, MAKONI JA and BERE JA

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION Ruled By: MUNANGATI-MANONGWA J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: MAKARAU JP

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME Ruled By: MAKONI J

HH68-16 : THE TRUSTEES FOR THE TIME BEING OF THE PHOENIX TRUST N.O. vs GIDEON HWEMENDE and OTHERS Ruled By: CHIGUMBA J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES Ruled By: TAKUVA J

HH226-18 : SAKUNDA ENERGY (PVT) LTD and SAKUNDA LOGISTICS (PVT) LTD and KUDAKWASHE TAGWIREI vs MAYOR LOGISTICS (PVT) LTD and JUSTICE WADYAJENA Ruled By: HUNGWE J

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Law Portal
Zimbabwe

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HB129-10 : HERBERT VAN DEN BERG and CYNTHIA BESWICK vs FRANK LANG
Ruled By: MATHONSI J

HH125-13 : MICHELLE NYAMANGUNDA vs MASHONALAND TURF CLUB
Ruled By: MANGOTA J

HH113-15 : GWYNNE ANN STEVENSON vs MAXWELL MATSVIMBO SIBANDA
Ruled By: HUNGWE J

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

HH68-16 : THE TRUSTEES FOR THE TIME BEING OF THE PHOENIX TRUST N.O. vs GIDEON HWEMENDE and OTHERS
Ruled By: CHIGUMBA J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

HH226-18 : SAKUNDA ENERGY (PVT) LTD and SAKUNDA LOGISTICS (PVT) LTD and KUDAKWASHE TAGWIREI vs MAYOR LOGISTICS (PVT) LTD and JUSTICE WADYAJENA
Ruled By: HUNGWE J