contents of pleadings https://old.zimlii.org/taxonomy/term/11067/all en Samukange v Marange Resources (Private) Limited (HH 691-20, HC 3148/14) [2020] ZWHHC 691 (11 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/691 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>JONATHAN SAMUKANGE</p> <p>versus</p> <p>MARANGE RESOURCES (PRIVATE) LIMITED</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 11 November 2020 </p> <p> </p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p><em>T Mpofu</em>, for plaintiff</p> <p><em>I Ndudzo</em>with <em>G Gomwe</em>, for defendant</p> <p> </p> <p> </p> <p>              TAGU J: At the close of the defendant’s case on the 4thof November 2019 the plaintiff undertook to file his closing submissions by the 7thof November 2019. The defendant undertook to file its closing submissions by the 13thof November 2019. The plaintiff managed to file his closing submission on the 12thof November 2019. At the time of writing this judgment the defendant had failed to file its closing submissions forcing this court to write this judgment without an input from the defendant.</p> <p>            The plaintiff issued summons against the defendant claiming USD 230 000.00 being the value of a truck being a Toyota Dyna, white in colour, diesel, engine number J05CD 18642, chasis number JHFYE207104000035 at the time of commencement of use or alternatively being the sum for which defendant has been unjustly enriched at plaintiff’s expense, interest at 5% per annum from August 2009 to date of full and final payment and costs at attorney and client scale.</p> <p>            The undisputed facts are that the plaintiff imported the vehicle in question from South Africa in 2005. In 2008 plaintiff entered into a mining agreement with one Robert Van De Merwe which was to operate a tantalite mine at Benson mine in Mutoko. Three months later, the truck was, without plaintiff’s knowledge taken to Marange Resources (Private) Limited where Mr. Robert Van De Merwe entered into a mining joint venture for diamonds with the defendant. In August 2009 the vehicle was impounded by Zimbabwe Republic Police Mutare for failure to have a valid licence. However, after negotiations with the employees of the defendant and the plaintiff the vehicle was released into the hands of the defendant into which it is to this day.</p> <p>When served with the summons the defendant totally denied ever receiving delivery of the truck or its services thereof in its plea. It is necessary at this stage to outline the relevant potions of the defendant’s plea as these have a bearing on the evidence given by the plaintiff and the defendant.</p> <p>           “2.2      Defendant denies ever receiving delivery of the truck or its services thereof. Defendant                            denies  ever having made use of the truck or having sight of the truck whatsoever.</p> <p>            2.5       Defendant is in the diamond mining business and it is not possible for a motor vehicle to                         be sneaked into the premises of the defendant without its knowledge and/ or proper                          paperwork due to the stringent security procedures Defendant is required to adhere to.</p> <p>            4.4.       Defendant denies ever being in possession of the truck whatsoever. There is no proof of                           delivery of the truck to Defendant by Plaintiff. Defendant has no business with the alleged                   truck and there would not have been any reason for Defendant to keep the truck in its                               possession.</p> <p>            5.2.       Defendant has never benefitted from the alleged truck and has never admitted to having                           benefitted from the truck.</p> <p>            5.3.       Defendant does not have in its possession or as part of its fleet the alleged vehicle. It                                utilizes other vehicles which have nothing to do with Plaintiff and are being paid for as                               and when services are utilized.”</p> <p> </p> <p>            The issues to be determined in this case were captured in the parties’ Joint Pre-Trial Conference Minute as follows-</p> <p>            <strong>“ISSUES</strong></p> <ol> <li>Whether there is an agreement between Plaintiff and Defendant?</li> <li>Whether or not the Defendant was unjustly enriched from using the Plaintiff’s Toyota      Dyna Truck?</li> <li>Whether or not Defendant is liable in the sum of USD 230 000 being the value of the       Toyota Dyna Truck at the time of commencement of use or alternatively the sum to which      the Defendant has been unjustly enriched?</li> <li>Whether Plaintiff is entitled to be paid rentals for the use of the truck?</li> <li>Whether the rates of Automobile Association of Zimbabwe should be used to determine   the rentals?</li> <li>Whether Plaintiff is entitled to claim any damages caused to repairs or replace the truck?”    </li> </ol> <p> </p> <p>            In<em>casu</em>the plaintiff Mr. Jonathan Samukange told the court that after buying the said vehicle in South Africa it was brought into Zimbabwe by his driver Titus Makeredza. It was the said driver who drove it to Marange Resources (Private) Limited without his knowledge. When he heard that the vehicle had been impounded by the Zimbabwe Republic Police in Mutare he went there and the defendant’s management staff involving Mr Obert Dube and Mr G Masimirembwa agreed to purchase the lorry for the sum of USD 230 000.00. To date no payments have been made, and due to the strict security system at Marange Mines he has been unable to go and collect it. </p> <p>            The driver of the said truck Mr Titus Makeredza told the court that the said vehicle is still with Marange Resources who have recently changed name to Zimbabwe Consolidated Diamond Company (ZCDC).</p> <p>            Mr. Godwills Masimirebwa who was the chairman of MDC a subsidiary of Marange Resources also confirmed that the Chief Executive Officer Mr. O. Dube wanted to buy the truck in question for USD 230 000.00 when the plaintiff wanted to take it away after it was impounded by Zimbabwe Republic Police Mutare. He confirmed further than the truck was at Marange Resources.</p> <p>            At the close of the plaintiff’s case the defendant applied for absolution from the instance which this court dismissed with costs on a higher scale.</p> <p>            The defendant then led evidence from Mr. Obert Dube. He told the court that he was employed by the defendant as a Chief Executive Officer in November 2010. He said around 2012 Mr. Masimirembwa phoned him and told him about a vehicle that he said belonged to Mr. <em>Samukange</em>. It was his further evidence that the mystery is that the vehicle had no papers. Thereafter he left the employ of the defendant before the papers were brought. He said Mr. Van der Merwe claimed this vehicle to be his and later converted it to a bowser. According to him the situation around the vehicle was messy and the first time someone claimed it was when Mr. <em>Samukange</em>claimed it. To him the vehicle existed and remained remained there at the defendant’s premises and was being used as a bowser. Under cross examination he confirmed that Mr. <em>Samukange </em>told the court the truth. The defendant’s pleas were read to him and he confirmed that all that were lies. He said Marange Resources actually used the vehicle and benefitted from it. He said it is false that the defendant did not know Mr. Masimirembwa. At the time he left not even a cent had been paid for the vehicle to Mr. <em>Samukange</em>on account of the fact that papers for the vehicle had not been produced. As to its coming there and being impounded by the Mutare Police he said all this happened before he joined the defendant hence he was not in a position to comment. Asked if Mr. <em>Samukange</em>was the owner of the said vehicle his answer was “yes”. Finally he said he could not value the vehicle though at first he said it was valued at $100 000.00. Through Mr. Dube the defendant departed from its plea. He said he called plaintiff and told him to bring the vehicle registration book as a precondition for a discussion on payments. He said the defendant was using the vehicle by virtue of a government directive and that it was entitled to do so on the strength of that directive.</p> <p>            The difficulty is that this is not the case between the parties as revealed by the pleadings. This allegation was not put to the plaintiff to comment. This entirely new case was irregularly raised at this stage. The point does not need to be emphasized that a claim is considered on the basis of the pleadings. Very recently the Supreme Court in <em>Medlong Zimbabwe (Private) Ltd</em>v <em>Cost Benefit Holdings (Private) Limited</em>SC -24-18 said-</p> <p>           “In general the purpose of pleadings is to clarify the issues between the parties that require           determination by a court of law. Various decisions of the courts in this country and elsewhere have stressed this important principle.</p> <p> </p> <p>In <em>Durbach</em>v <em>Fairway Hotel ltd</em>1949 (3) SA 1081 (SR) the court remarked -</p> <p>        “The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an    action the issues upon which reliance is to be placed.”</p> <p> </p> <p>See also <em>Kali</em>v <em>Incorporated General Insurance Ltd</em>1976 (2) SA 179 (D) at 182 where the court remarked-</p> <p>       “The purpose of pleading is to clarify the issues between the parties and a pleader cannot be allowed             to direct the attention of the other party to one issue and then, at the trial attempt to canvass       another.” </p> <p> </p> <p>            In<em>casu</em>that is what the defendant did through its witness. </p> <p><strong>ANALYSIS OF EVIDENCE</strong></p> <p> </p> <p>            The court found that the Plaintiff told the truth. His evidence was corroborated by the defendant’s sole witness. The court therefore found that the defence set out in the defendant’s plea is based on falsehoods. </p> <p>            The position of the law is that if a litigant lies in one material respect, the court will be entirely justified in taking the view that he has lied in all other respects and in treating him accordingly. In <em>Moroney</em>v <em>Moroney </em>SC -24-13 it was held-</p> <p>            “I accept, that respondent failed to truthfully and adequately explain the circumstances of how     the various amounts that the respondent claimed came from Helena Limited found their way into          Standard Chartered Isle of Man Account. The court ought to have disbelieved him…….</p> <p> </p> <p>In <em>Leader Tread Zimbabwe (Pvt) Ltd</em>v S<em>mith</em>HH-131-03 NDOU J at p 7 of the cyclostyled judgment stated as follows-</p> <p> </p> <p>           “It is trite that if a litigant gives false evidence, his story will be discarded and the same adverse    inferences may be drawn as if he had not given evidence at all – see Tumahole Bereng v R [1949]         AC 253 and South African Law of Evidence by LH Hoffmann and DT Zeffert (3 ed) at page 472.If a litigant lies about a particular incident, the court may infer that there is something about it            which he wishes to hide.”</p> <p> </p> <p>            In<em>casu,</em>it is clear, therefore that the plaintiff’s position is quite unassailable compared to that of the defendant. The plaintiff’s vehicle was used at the Mtoko venture by Robert Van Der Merwe but he surreptitiously moved it to defendant’s premises. Titus Maredza was the driver and he was able to give some insight into the work done by the vehicle. The vehicle was then impounded by the police and the plaintiff was called. The defendant’s employees contacted their superiors including Mr. Obert Dube and Mr. G. Masimirembwa who pleaded with plaintiff. Their position was that they would either pay for its use or acquisition, and he was to release it back to them. There was a meeting between the parties and it was agreed that plaintiff would be paid US$230 000.00. The plaintiff is therefore a credible witness who must be believed over the defendant’s false testimony. Mr. Obert Dube indicated that he was directed by Masimirembwa to settle this issue. It is also clear that ZMDC and Marange Resources (Private) Limited constitute a single economic entity under the stewardship of government. Mr. Obert Dube testified as much. The defendant is therefore bound as much. That is what the law says- <em>Deputy Sheriff</em>v <em>Trinpac Investments (Pvt) Ltd &amp; Anor</em>2011 (1) ZLR 548.</p> <p>            In the present case the defendant from the evidence of Mr. Obert Dube admitted that it has made use of plaintiff’s vehicle. It admitted that it has generated value out of such use. It further admitted that it has not paid the plaintiff. Whatever unlawful arrangements defendant had with Robert Van Der Merwe do not concern the plaintiff. Defendant must sue Van Der Merwe. Plaintiff therefore managed to establish that if he is not paid, he would be unjustly enriched at his expense – <em>Industrial Equity Ltd</em>v<em>Walker 1</em>996 (1) ZLR 269 (H), Cash Converters SA 2002 (1) SA 708 at 717H-J and De Wet and Van Wyk Kontraktereg en Handelsreg 5thEd at 220-221.</p> <p>            This brings me to the question of costs. The court noted that it had been told lies by the defendant. This vexatious defence was meant to prolong time and to entitle defendant to reap another undue reward from the fall in the value of money. All this must be punished. <em>Mahembe</em>v <em>Matambo</em>20-03 (1) ZLR 148 (H); <em>Borrowdale Country Club</em>v <em>Murandu 1987</em>(2) ZLR 77 (H).</p> <p>            The plaintiff’s claim will succeed with costs.</p> <p>            IT IS ORDERED THAT</p> <ol> <li>The Defendant is to pay the Plaintiff USD 230 000.00 at the applicable bank rate, being the value of the truck at the time of commencement of use or alternatively           being the sum for which Defendant has been unjustly enriched at Plaintiff’s           expense.</li> <li>Interest at 5% per annum from August 2009 to date of full and final payment.</li> <li>Costs at attorney and client scale.</li> </ol> <p> </p> <p><em>Venturas &amp; Samukange</em>, plaintiff’s legal practitioners</p> <p><em>Mutamangira &amp; Associates</em>, defendant’s legal practitioners  </p> <p>                 </p> <p>            </p> <p>    </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/691/2020-zwhhc-691.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24840">2020-zwhhc-691.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/691/2020-zwhhc-691.pdf" type="application/pdf; length=128254">2020-zwhhc-691.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/terms-and-conditions">Terms and Conditions</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/enrichment">ENRICHMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unjust-enrichment">Unjust enrichment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/absolution-instance-%E2%80%93-principles">Absolution from the instance – principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-proceedings-pleadings">application proceedings (Pleadings)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contents-pleadings">contents of pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/extent-which-parties-are-bound-pleadings">extent to which parties are bound by pleadings</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/24">Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Private) Limited (SC 24/18, Civil Appeal No. SC 455/16) [2018] ZWSC 24 (14 May 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2003/131">Leader Tread Zimbabwe (Private) Limited v Smith (HH 131-2003 ) [2003] ZWHHC 131 (26 August 2003);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2011/121">Deputy Sherrif Harare v Trinpack Investments (Private) Limited and Another (HC 9019/10) [2011] ZWHHC 121 (13 June 2011);</a></div></div></div> Tue, 24 Nov 2020 07:44:27 +0000 Sandra 9940 at https://old.zimlii.org Chimakure & Anor v Mutambara & Anor (SC 91-20, Civil Appeal No. SC 708/17) [2020] ZWSC 91 (02 July 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/91 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong>                    <strong>(85)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>(1)     CONSTANTINE     CHIMAKURE     (2)     ALPHA     MEDIA     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>(1)     AMBASSADOR     AGRIPPA     MUTAMBARA   (2)     ESTER     MUTAMBARA</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, MAKONI JA &amp; BERE JA </strong></p> <p><strong>HARARE: APRIL 1, 2019 &amp; JULY 2, 2020</strong></p> <p>                                                                                                                                       </p> <p> </p> <p><em>T. Mpofu</em>, for the appellants</p> <p><em>F. Mahere</em>, for the respondents</p> <p> </p> <p> </p> <p><strong>GOWORA JA</strong>:</p> <p><strong>BACKGROUND FACTS  </strong></p> <p>[1]            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. </p> <p> </p> <p>[2]            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. </p> <p>[3]            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.  </p> <p> </p> <p>[4]            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 Mhere and his wife.</p> <p> </p> <p>[5]            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.</p> <p> </p> <p>[6]            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.</p> <p>[7]            Based on the above allegations, the respondents claimed damages for the article published by the appellants in the sums of USD 120 000.00 and USD 80 000.00 respectively.</p> <p> </p> <p>[8]            The appellants did not plead. They jointly filed an exception and application to strike out in the form set out hereunder:</p> <p>“A No cause of action disclosed.</p> <ol> <li>First Defendant is cited as Constantine Chimakure cited herein in his</li> </ol> <p>capacity as the Editor of Newsday Newspaper.</p> <ol> <li>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)</li> <li>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)</li> <li>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.</li> </ol> <p>B         Vague and embarrassing</p> <ol> <li>Plaintiff alleges in para 9 of the declaration that</li> </ol> <p>“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”.</p> <ol> <li>The words complained of which are alleged to appear in the said article are</li> </ol> <p>not set out and their effect cannot be ascertained.</p> <ol> <li>The claim is consequently vague and embarrassing.</li> </ol> <p>C       Application to strike out</p> <ol> <li>Plaintiffs tell a story in a declaration made up of 21 paragraphs. The</li> </ol> <p>declaration is argumentative, superfluous irrelevant is crafted in breach of the rules of court and must be struck out.(sic)</p> <p> </p> <p>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.”</p> <p> </p> <p> </p> <p><strong>PROCEEDINGS BEFORE THE COURT A QUO</strong></p> <p>  </p> <p>[9]            Before the court <em>a quo</em>, 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.</p> <p> </p> <p>[10]          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.</p> <p> </p> <p>[11]          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.</p> <p> </p> <p>[12]          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.</p> <p> </p> <p>[13]            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.</p> <p> </p> <p>[14]          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.</p> <p> </p> <p>[15]           The court <em>a quo</em> reasoned as follows:</p> <p>“The defendants do not know which words are defamatory according to the plaintiff and this is ‘embarrassing’ to them. See <em>National Union of Distributive Workers</em> v<em> Cleghorn &amp; Harris Ltd </em>1946 AD 984,<em> Sutton </em>v <em>Brown </em>1926 AD 155 @ 163,<em> Demmers </em>v<em> Wylie &amp; Ors </em>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<em> Masukusa </em>v<em> National Foods Ltd &amp; Anor, Taruona </em>v <em>Zvarevadza &amp; Ors </em>HH 87-12,<em> Mwayisa </em>v<em> Jumbo &amp; Ors </em>HH 3-10, <em>Morris </em>v <em>Morris &amp; Anor </em>HH71-11.</p> <p> </p> <p>                        Rule 99 (c) of the rules of this court provides that:</p> <p>“A pleading shall-</p> <p>…</p> <p>(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 <em>Stephens </em>v<em> De Wet </em>1920 AD 279 @ 282,<em> Golding </em>v <em>Torch Printing &amp; Publishing Co (Pty) Ltd &amp; Ors </em>1948 (3) SA 1067 (C ) @ 1090.”</p> <p>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 mater 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.”</p> <p> </p> <p> </p> <p>[16]         The court <em>a qu</em>o 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.</p> <p> </p> <p><strong>THE APPEAL</strong></p> <p>[17]         With the leave of this court, the appellants have noted an appeal on the following grounds:</p> <p>“1.       The court <em>a quo</em> 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.</p> <p>2.         The court <em>a quo</em> 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.</p> <ol> <li>The court <em>a quo</em> 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.</li> <li>Additionally, the court again erred in disregarding the mis-citation of the first</li> </ol> <p>appellant. At law a summons that cites a non-existent person or capacity is a nullity.</p> <ol> <li>The court <em>a quo</em> grossly misdirected itself and erred in holding that the respondents’</li> </ol> <p>declaration was capable of being pleaded to. Once a declaration is vague and</p> <p>embarrassing the defendant ought not to be required or compelled to plead to it.”</p> <p> </p> <p>[18]          Three issues for determination emerge from the grounds set out above. 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. 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.</p> <p>               </p> <p><strong>ARGUMENTS ON APPEAL</strong></p> <p>[19]          Mr <em>Mpofu</em> abandoned the fourth ground. He was wise to do so. To argue that the first appellant as cited is irregular would be an exercise to test human logic. The first appellant, cited by name, was further identified by the occupation in which he is sued. Such description cannot by any stretch of the imagination turn him into a non-existent person.</p> <p> </p> <p>[20]          On the substance, the argument for the appellants went as follows. The court <em>a quo</em> 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 <em>a quo</em> purported to be exercising a discretion which it was not imbued with. For this proposition Mr <em>Mpofu</em> sought reliance on <em>Forestry Commission v Moyo</em> 1997 (1) ZLR 254 (S).</p> <p> </p> <p>[21]          As regards the alleged absence of a cause of action, it was argued that the law was clear that a party must set out in its declaration the words that it alleges to be defamatory. To that extent it was suggested that reference to the actual words used is indispensable to the existence of a proper cause of action, and that without it, the pleading is vague and embarrassing.</p> <p> </p> <p>[22]          Miss <em>Mahere</em> 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. She submitted that even where an exception is upheld, a plaintiff is afforded the opportunity to amend its declaration.</p> <p> </p> <p><strong>ANALYSIS OF THE DISPUTE ON APPEAL</strong></p> <p>[23]          For the sake of convenience, I will begin with the nature of the relief ordered by the court <em>a quo.</em> 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.</p> <p> </p> <p>[24]             I turn now to the substance of the appeal. What a plaintiff to a claim for defamation is required to allege in the summons was settled in <em>Taylor &amp; Another v Chavunduka &amp; Ors</em> 1995 (2) ZLR 22, by CHATIKOBO J, at p27C-F wherein the learned judge stated: </p> <p>“It is true that before a person can be held liable for defamation the words complained of must have been published of and concerning the plaintiff. In everyday parlance, the article must refer to the plaintiff. Before the defendants can be held liable the “……. plaintiff must therefore identify himself as the person defamed, that is, he must allege and prove that the statement complained of  referred to him as an ascertained or ascertainable person. The test is whether the ordinary reasonable man hearing or reading the statement would be likely to understand the statement to apply to the plaintiff”: per R G McKerron The Law of Delict 7 ed p 178-9. See also <em>SA Associated Newspapers Ltd &amp; Anor v Est Pelser </em>1975 (4) SA 797(A) at 810C. The complaint at this stage of the inquiry is on the need to allege in the declaration that the article refers to him. In this regard it has been averred in par 6 that the article in Parade was published of and concerned the plaintiffs. But as I stated earlier, the article does not identify the plaintiffs either by name or by description. McKerron supra at p 179 states that “Where the statement contains no reference on the face of it to the plaintiff as an ascertained or ascertainable person, the plaintiff must set out in his pleadings the special facts and circumstances which he relies upon as supporting the allegation that the statement referred to him. Having thus alleged facts connecting himself with the defamation, the plaintiff will be entitled to call witnesses to prove that they understood the words complained of to refer to him.”</p> <p> </p> <p>And later at p 28F-G</p> <p> </p> <p> </p> <p>“All that has been pleaded in para 6 is that the words were published of and concerning  the plaintiff. ……………………………………………………………………..                </p> <p>That is not so with the ordinary man and woman of normal   intelligence reading the article in Parade unless he was, at the time, aware of the contents of the report.” </p> <p> </p> <p> </p> <p>[25]          Going by the test set out in the above authority it cannot be denied that the respondents alleged in the declaration that on 6 July 2012 the Newsday newspaper published a statement of and concerning them. Paragraphs 6, 11, 12, 13, and 14 are pertinent. It is my considered view that the exception on this aspect was not well taken. The declaration was not framed in elegant terms. What it does however is identify who the plaintiffs are, the circumstances under which the article came about and the allegation that a defamatory statement was published of and concerning them.</p> <p> </p> <p>[26]          Next it falls for me to consider whether or not the appellants were embarrassed by the failure on the part of the respondents to set out the exact words which are alleged to have appeared in the article and which defamed them. For the proposition that the exact words complained of should have been set out in the declaration Mr <em>Mpofu </em>sought reliance on <em>International Tobacco of SA Ltd v Wollheim &amp; Others</em> 1953 (2) SA 603. This authority received attention in this jurisdiction in <em>Munyai v Chikasha</em> 1992 (2) ZLR 31 (S). At p 32B-F, this court stated:</p> <p>“It was submitted that it was therefore incumbent upon the appellant to prove that those words were uttered and it was not sufficient merely to show that words substantially similar were uttered. It was submitted that the appellant’s declaration did not allow him to depart from the <em>ipsissima verba</em> rule. The case of <em>International Tobacco Co v Wollheim</em> 1953 (2) SA 603 was cited in support of this proposition. If anything, this case is authority for the opposite position, that is to say, what is required is to show that substantially the same words were used. It is therefore no longer necessary to plead <em>ipsissima verba</em>. All that is necessary is to plead the substance and effect of the words.</p> <p> </p> <p>Although it would have been advisable for the appellant’s legal practitioners to have included the words “or words to that effect”, the failure to do so did not render the appellant’s case fatally defective. Indeed, as was said in the case of <em>International Tobacco Co v Wollheim</em> supra at 604G:</p> <p> </p> <p>‘The pleading of <em>ipsissima verba</em> leads to artificiality and disingenuousness in pleading because a witness can rarely recollect the <em>ipsissima verba</em> but only the substance or effect of the words spoken, and the versions of two or more witnesses as to the <em>ipsissima verba</em> may differ in detail but not on the substance or effect thereof’.”</p> <p> </p> <p>[27]          I am mindful of the fact that in the above mentioned authority the words complained of were not published in a newspaper article. In my view however, the substance of pleading is the same. A plaintiff no longer needs to set out the exact words complained of.</p> <p>   </p> <p>[28]          Erasmus, Superior Courts Practice, states:</p> <p>“An exception that a pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations were not expunged. The effect of this is that the exception can be taken only if the vagueness relates to the cause of action. Such embarrassment may occur where the admission of one or two sets of contradictory allegations in the plaintiff’s particulars of claim or declaration, destroys the plaintiff’s cause of action. In other words, averments in a pleading which are contradictory and which are not pleaded in the alternative are patently vague and embarrassing.</p> <p> </p> <p>The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity can be summed up as follows:</p> <p> </p> <ul> <li>In each case the court is obliged to first of all consider whether the pleading</li> </ul> <p>does lack particularity to an extent amounting to vagueness. Where a</p> <p>statement is vague it is either meaningless or capable of more than one</p> <p>meaning. To put it simpler: the reader must be unable to distill from the</p> <p>statement a clear single meaning.</p> <p> </p> <ul> <li>If there is vagueness in this sense the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.</li> </ul> <p> </p> <ul> <li>In each case <em>an ad</em> hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. A point may be of the utmost importance to the case, and the omission thereof may give rise to vagueness and embarrassment, but the same point may in another case be only a matter of detail.</li> </ul> <p> </p> <ul> <li>The ultimate test as to whether or not the exception should be upheld is</li> </ul> <p>whether the excipient is prejudiced.”</p> <p> </p> <p> </p> <p>[29]          Whenever a pleading is vague or lacking in precision it is susceptible to an exception only if the alleged vagueness renders the whole pleading unintelligible. A defendant is, as a consequence, under a burden to establish that the pleading has embarrassed him or her in pleading thereto. In <em>Pete’s Warehousing and Sales CC v Bowsink Investments CC</em> 2000 (3) SA 833 at 834H, the following is stated:</p> <p>“The test to be applied in determining an exception is as follows: The excipient has the duty to persuade the court that upon every interpretation which the pleading in question, and in particular any document on which it is based, could bear no cause of action or defence, failing this, the exception had to be dismissed.”</p> <p> </p> <p> </p> <p>[30]          It is not sufficient to merely allude to lack of clarity or particularity as was alleged by the appellants in this case, a defendant must show how he was embarrassed. The appellants have not met the <em>onus</em> on them to establish that the declaration is excipiable. In this instance, the respondents pleaded an innuendo and the appellants have not shown that they have been embarrassed.</p> <p> </p> <p>[31]          It only remains for me to deal with the arguments made by the parties on the application to strike out the declaration. The appellants submitted that the declaration was crafted in breach of the rules of court and on that premise ought to be struck out in its entirety. It is argued by the respondents that the application was not in the proper form and as a result was not before the court <em>a quo</em>. It seems to me that counsel on both sides of the appeal have overlooked one fundamental issue, that there is in fact no appeal against the refusal by the court <em>a quo</em> to strike out the declaration. None of the grounds speak to issue of the alleged irrelevant, superfluous or argumentative nature of the declaration. The court <em>a quo</em> has not been impugned for its decision not to strike out the declaration. In the absence of a ground of appeal on that aspect this Court cannot embroil itself in a matter not in contention.</p> <p> </p> <p>[32]          I turn to the nature of relief sought by the appellants. The appellants have sought that the appeal succeeds and that the exception be upheld with the claim being dismissed. As rightly submitted by Miss <em>Mahere</em> the prayer for dismissal in circumstances such as these is, as a matter of law, incompetent. In <em>Adler v Elliot </em>1988(2) ZLR 283(S), at 292B-C, this court said:</p> <p>“Finally, although of no significance in view of the conclusion I have reached, Mr <em>Gillespie</em> justly criticized the order made by the learned judge. A claim should not be dismissed on an exception where it is possible that the party affected may be able to allege facts that would disclose a cause of action. See <em>Green v Lutz</em> 1966 RLR 633(GD) at 641A. He should be given leave to amend, within a specified period, if so advised. Such an opportunity was not afforded to the plaintiff.”</p> <p> </p> <p> </p> <p>(See also <em>Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd</em> 1993(2) ZLR 359 (H), at 373D-E; <em>R M Insurance Co (Pvt) Ltd v G C M (Pvt) Ltd</em> 1993 (2) ZLR 407 (S) at 408; <em>Taylor &amp; Anor v Chavunduka &amp; Ors </em>1995 (2) ZLR 22(H).)</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[33]          The court <em>a quo</em> 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.</p> <p> </p> <p>[34]          In my view the appeal lacks merit and is accordingly dismissed with costs.</p> <p> </p> <p> </p> <p><strong>MAKONI JA</strong>      :       I agree</p> <p> </p> <p><strong>BERE JA</strong>            :        I agree</p> <p> </p> <p><em>Gill, Godlonton &amp; Gerrans</em> legal practitioners for the appellants</p> <p><em>Sawyer &amp; Mkushi</em> legal practitioners for the respondents  </p> <p> </p> <p>            </p> <p>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”.</p> <p>B1-154-154A</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/91/2020-zwsc-91.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40348">2020-zwsc-91.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/91/2020-zwsc-91.pdf" type="application/pdf; length=378349">2020-zwsc-91.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/d">D</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/damages">DAMAGES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/defamation-see-defamation-damages">Defamation See DEFAMATION (Damages).</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/defamation">DEFAMATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/damages-defamation">Damages (DEFAMATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/exception-practice-and-procedure">Exception (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-filed-exception">when may be filed (Exception)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contents-pleadings">contents of pleadings</a></li></ul></span> Thu, 20 Aug 2020 08:18:24 +0000 Sandra 9845 at https://old.zimlii.org Mushonga & 2 Ors v Musandinane (HMA 32-20, HC 452/19) [2020] ZWMSVHC 32 (15 July 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/32 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>ROBERT DERERA MUSHONGA</p> <p>PASCAL TAKAIDZA MUSHONGA</p> <p>JEREMIAH MOYANA</p> <p>versus</p> <p>EFFORT MUSANDINANE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>Masvingo, 5 February, 9 March, 13 March, 19 March, 2 April, 26 May and 15 July, 2020 </p> <p>                       </p> <p> </p> <p> </p> <p>Opposed Application                                                 </p> <p> </p> <p> </p> <p> </p> <p><em>Mr Mbwachena, </em>for the applicant</p> <p><em>Mr Chakabuda, </em>for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>ZISENGWE J</strong>:          The three applicants seeks the rescission of a default judgment that was entered against them on 4 December, 2019. The respondent had issued summons out of this court for the delivery of replacement motor vehicle parts or in the alternative payment of a certain sum of money being their replacement value (<em>as well as interest thereon)</em> and costs of suit. The default judgment followed the failure by applicants to note appearance to defend within the <em>dies induciae</em>.</p> <p><strong>Background to the application</strong></p> <p>The claim by the respondent arose from events in which his accident damaged motor vehicle which he had entrusted into the custody of the 1st applicant was “cannibalised” and stripped of most of its vital components. If respondents averments both I the declaration and in his affidavit opposing this affidavit are anything to go by, the motor vehicle was a virtually rendered a useless empty shell.</p> <p>According to the respondent the liability of the 1st applicant stems from the breach of the duty of care he owed him following his (<em>i.e. 1st applicant’s</em>) assumption of the control and custody of the motor vehicle. The 2nd applicant’s liability on the other hand is based on allegations of him having unlawfully stripped the motor vehicle of its parts. The liability of the 3rd applicant is premised on him having signed a document (in the form of a deed of settlement) amounting to an acknowledgement of liability or indebtedness over the pilfered motor vehicle parts.</p> <p>In the wake of the granting of the default judgment the applicants then brought the current application for rescission of judgment in terms of Rule 63 of the High Court Rules, 1971. They contend that that in the circumstances of this case the prerequisite for the granting of rescission are satisfied. They aver in this regard that their failure to enter appearance was not wilful as they were never served with the summons. They each claim that they only became aware of the action against them on 20 December, 2019 when execution of the said judgment was imminent. They further contend that they each have a <em>bona fide</em> defence to the claim.   The 1st applicant <em>inter alia</em> attacks the very basis of the claim against him. He denies ever owing any duty of care towards the respondent in respect of the motor vehicle and secondly that he never stole the motor vehicle parts in question.</p> <p>The 2nd applicant while admitting appropriating some of the motor vehicle parts denies that removing the bulk of the parts stolen.</p> <p>The 3rd applicant on the other hand avers that there is no credible cause of action. Implicit in this averment is the suggestion that he has nothing to do with this motor vehicle and/or its stolen parts.               </p> <p>This application is strenuously opposed by the respondent who raises the preliminary point that the application is irregular and incompetent as it does not comply with the peremptory requirements of Rule 230 of the Rules of Court. Reference is made in this regard to the form on which the application is filed. It is this preliminary point that this court is being called upon to decide and the further progress of this application (<em>if any</em>) hinges on its resolution.</p> <p>It is common cause that initially the applicants instead of filing their application for rescission on Form 29 as is mandated in terms of Rule 230 of the Rules did so on a form alien to the Rules of the High Court. It somewhat resembles the form used for similar applications in the Magistrates Court.         </p> <p>This glaring irregularity was brought to the attention of the applicants when the latter (<em>unsuccessfully</em>) launched an urgent chamber application for stay of execution.</p> <p>The respondent in opposing this application relies to a greater extent on the ratio in <em>Zimbabwe Open University</em> v <em>Dr O. Mazombwe</em> HH 43/2009. In that case HLATSHWAYO J (<em>as he then was)</em> after reviewing several decisions on the subject in question concluded that as application for rescission not based on the correct form is a nullity. The court further pointed out the failure to seek condonation for non-compliance renders the application defective and should be struck off.       </p> <p>The current matter, however, goes beyond the defectiveness of the original application as the applicants upon a realisation of the defectiveness of their application sought to amend it by substituting it with a rules – compliant one.         </p> <p><strong>The issue</strong></p> <p>From the foregoing the question that falls for ………………….is whether it was competent and permissible on the part of the applicants to purport to amend their defective application by unilaterally substituting it with a compliant one.</p> <p><strong>Can an application which is defective for want of compliance be amended?</strong></p> <p>In <em>Jensen</em> v <em>Acavalos</em> 1993 (1) ZLR 216 the Supreme Court adopted the approach in the cases of <em>Simross Vintners (Pty) Ltd</em> v <em>Vermeulen, VRG Africa (Pty) Ltd</em>. v <em>Walters</em> t/a <em>Trend Litho</em>, <em>Consolidated Credit Corporation (Pty) Ltd </em>v <em>Van der Westhuizen </em>1978 (1) SA 779 and concluded that applications which did not conform to the Rules of Court were a nullity and lend themselves to being struck off the roll.</p> <p>What fell for consideration in the <em>Jensen</em> case was the fate of an appeal which did not comply with s 29 of the Supreme Court Rule, RGN 380/1964. The court had this to say;</p> <p>“<em>The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say it is a nullity.  It is not only bad but incurably bad, and unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs. Dejager v Diner &amp; Anor 1957(3) SA 567 (A) at 576 C – D.”</em></p> <p> </p> <p><em>In Hattingh v Piennar </em>1977 (2) SA 182 (O) at p 183 KLOPPER JP held that a fatally defective non-compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of the time within which to comply with the relevant rule. With this view I most respectfully agree: for the notice of appeal is incurably bad, then to borrow the words of Lord Denning in<em> McFoy </em>v<em> United Africa Co. Ltd </em>[1961] ALLER 1169 at 1172;</p> <p>“<em>every proceeding which is founded on it is also bad something on nothing and expect it to stay there. It will collapse</em>.”</p> <p> </p> <p>In the context of this case, therefore, if the use of the wrong form in their original application was strange, what the applicant then sought to do to rectify the irregularity was even stronger. Instead of simply withdrawing the offending application and filing a complaint one, they sought to sought to amend it by purporting to attack the application in the correct format, needless to say that they made a bad situation worse.</p> <p>The defect on the original application is neither superficial nor inconsequential; it is of real substance and effect. Unlike Form 29 it does inform the respondent what he needs to do should he intend to oppose the application, nor the form on which that application should be filed. It does not disclose when and where the respondent is required to file the notice of opposition let alone alert him of the consequences attendant to the failure to file the opposing affidavit.</p> <p>By purporting to then amend the original (defective) application by substituting it with a different one on the 24th of January, the applicants fell into grave error because it was no longer clear what the facts of the original application was.</p> <p>There is a patent contradiction inherent in purporting to “amend” one application by “substituting” it with another. The word amend connotes to correct something yet the word substitute implies replacing something. One cannot correct something by replacing it with another.</p> <p>The cause of action adopted by the applicants creates more problems than it solves; By way of illustration it becomes unclear whether the seven days referred to in the “amending” application is deemed as commencing upon the service of the original application or the amended one. The two applications cannot co-exist as the applicants impliedly suggest, nor can the second one supplant the first without a withdrawal of the later.</p> <p> </p> <p><strong>Can Rule 4C salvage a defective application </strong></p> <p>In their supplementary heads of argument, applicants implies the court to invoke the provisions of rule 4C of the rules to rescue their application and permit the matter to be heard on its merits. They contend in this regard that the said rule brings forth an invaluable element of flexibility of the rules to remedy situations where a rigid adherence to the rules would result in an injustice to the affected party.</p> <p>It was further argued in this regard that will be in the interests of justice allow the matter to be decided on its merits rather than on the irregularity complained of.</p> <p>Finally it was contended that the respondent stands to suffer no prejudice should the court adopt such a course of action.  Reliance for the foregoing was placed in a diction from the case of <em>RIO Zimbabwe Limited v Africa</em> ………………<em>Banic</em> HH 31/14</p> <p>Rule 4 c proudis as follows;</p> <p>" 4c- Departure from the rules and directions as procedure:</p> <p>The Court or Judge may in relation to any particular case before it or him, as the case may be,</p> <ol> <li>direct, authorize or condone a departure from any provision of the rules, including an from   any provision of the rules, including an extension of any period specified therein, where it or he as the case may be, is satisfied that the departure is required in the ………… of justice.</li> <li>give such directions as to procedure in respect of any matter not expesey  pronded for in these as appear to it him, on the case may be, to be just and expedient.</li> </ol> <p>There are several difficulties that immediately confront the applicants in their avert to be   </p> <p>resumed by rule 4c. Firstly it is not clear from the respondent’s supplementary heads what exactly needs to be condoned: whether it is the filing of the original application for rescission on an irregular or it is the indulgence to be permitted to amend the offending application in the manner they did.</p> <p>            This rather vagne and obscure call by the applicants for the court (ostensibly in the interacts of justice) to invoke rule 4c and have the matter heard on the on the merits is untenable.  The applicant needed to be clear on preusely which of its irregular conduct should be condoned. The court cannot "carte blanche" grant a blanket condonation for all of the past irregularities committed by a party.</p> <p>            Secondly the respondent makes the valid observation that the applicants did not as much as apply to the court, let alone obtain the courts indulgence to be allowed to substitute the defective application with a rectified me. By taking it upon themselves to unliterally file a substituted application without leave of court the effectively put the …………..before the house, so to speak.</p> <p>            It is clear from the case of <em>De Juger v Diner</em> (supra) as citied with approval in the case of <em>Jeusen v Acavalos</em> (supra) that the application for condonation of the defective application must precede the filing of a proper one and the letter may only be filed with leave of court.  In casu the applicants therefore did everything in reverse order: they amended first only then sought leave to amend.</p> <p>            In my view, rule 4c cannot be invoked to facilitate a wholesale substitution of a wholly defective application with another or for the superim position of a correct application an invalid one. That is not the"departure"contemplated in that rule. Reference has already been made earlier to the fact that an defective (hence……………..) application cannot be amended or condoned.</p> <p>Rule 4c cannot therefore salvage the…………………………….. applicants what remains is to consider the appropriate order in the circumstances</p> <p>The Relief</p> <p>The respondent sought the dismissal of the application on account of the irregulations outlined above. However, a perusal of the relevant authorities including the case of <em>Zou v Mazombwe; Jensen v Acavalo, Simross Vintners (PTY) Ltd v Vermeulen and 4 others </em>(all cited above) reveals that the matter can only be struck from the roll (because the matter is not properly before the court as opposed its dismissal.</p> <p>Costs:</p> <p>The general rule is that substantially successful party (which the respondents in the present matter is no doubt one) entitled to its costs.</p> <p>The only question is whether he is entitled to costs on an attorney client scale which he seeks. The court does not lightly award such costs. It can only do so if there exist special grounds forwarding such punitive costs. Examples of situations that have been given justifying costs on that scale invade where the losing party " has been quality of dishonesty or fraud or that his motives have been vexations, ………………… and malicious, a frivolous,  or that he has acted unreasonably in his conduct of the litigation or that his conduct is in some way reprehensible"  see Erasmus,  "Superior practice" second edition, page D1-24.</p> <p>In the present matter, the applicants (via counsel) were on more than one occasion alerted not only of defectiveness of their application but also of the appropriate course of action to pursue in rctification of the same.  For reasons best known to themselves, they however caution to the ………… and turned a deaf ear to such advice and elected to pursue an irregular course of action. There is in my view justification in awarding costs against them on such a …………….scale.</p> <p>In the result the following order is hereby given; Application is stuck off the roll with costs on the legal practitioner and client scale.</p> <p> </p> <p> </p> <p><em>Ruvengo Maboke and Company,</em> applicants’ legal practitioners</p> <p>Chakabuda <em>Foroma Law Chambers,</em> respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/32/2020-zwmsvhc-32.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25997">2020-zwmsvhc-32.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/32/2020-zwmsvhc-32.pdf" type="application/pdf; length=439333">2020-zwmsvhc-32.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/amendment-pleadings">amendment of pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contents-pleadings">contents of pleadings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaration-%E2%80%93-delictual-action-pleadings">declaration – delictual action (Pleadings)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2009/43">Zimbabwe Open University v Mazombwe (HC 1012/08) [2009] ZWHHC 43 (03 February 2009);</a></div></div></div> Tue, 28 Jul 2020 09:31:54 +0000 Sandra 9805 at https://old.zimlii.org Nkala v Nkala & Anor (HB 116-20) [2020] ZWBHC 116 (11 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/116-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>EBERT NKALA</strong></p> <p> </p> <p><strong>Versus </strong></p> <p> </p> <p><strong>BERNARD NKALA </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>BULAWAYO CITY COUNCIL </strong></p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J</p> <p>BULAWAYO 2 June 2020 &amp; 11 June 2020</p> <p> </p> <p><strong>Civil trial </strong></p> <p> </p> <p><em>N. Mlala,</em> for the plaintiff</p> <p><em>N. Sandi, </em>for the 1st defendant</p> <p> </p> <p><strong>DUBE-BANDA J:    </strong>This matter came to this court as an urgent chamber application. This court granted the interim relief sought, whose terms interdicted 1st defendant from disposing and transfering of stand number 70832 Lobengula West, Bulawayo to a third party. The court also ordered that in the event a sale had occurred, 2nd defendant should not proceed and effect the transfer of the property to a third party.</p> <p>On the return date, the matter was referred to trial. The plaintiff now seeks the following order from this court:</p> <ol> <li>that the 1st defendant be and is hereby ordered to sign transfer papers of stand number 70832 Lobengula West, Bulawayo into plaintiff’s name within 5 days of this order.</li> <li>Failing paragraph 1 above, the Sheriff of Zimbabwe, Bulawayo be and is hereby ordered to sign transfer papers in the place and stead of the 1st defendant at 2nd defendant’s offices.</li> <li>the plaintiff also be and is hereby ordered to transfer stand number 6631 Pumula North into 1st defendant’s name.</li> <li>first defendant be and is hereby ordered to pay costs of suit on an attorney client scale.</li> </ol> <p> </p> <p>The action is opposed by the first defendant. The second defendant did not participate in these proceedings. My conclusion is that it intends to abide by the order of this court.</p> <p> </p> <p><strong>Factual background </strong></p> <p>In the founding affidavit filed with the chamber application, plaintiff says 1st defendant is his brother. It is said sometime between 1980 and 1981, the parties entered into an oral agreement were it was agreed to swoop stand number 70832 Lobengula West, Bulawayo (Lobengula West house), and stand number 6631 Pumula North, Bulawayo (Pumula North house).</p> <p>The reason given for the alleged agreement is that 1st defendant was allocated the Lobengula West house, by the Bulawayo City Council (municipality), at the time of the allocation he did not have the sum of $480.00 required as a deposit payment. Plaintiff says instead of him leading second defendant funds to pay the deposit, it was agreed that he pays the deposit, then occupy the house and finish paying for it through instalments. In return, 1st defendant would occupy the Pumula North, already owned by the plaintiff. This is said to have occurred in 1981.</p> <p>It is alleged that, one Zebeth Nkala, the elder brother of the two litigants, is the one who facilitated the agreement and is the one who assisted in the acquisition of the two properties. Plaintiff says, sometime in 1995 the parties tried to change the registration of these properties but could not complete the process.</p> <p>Plaintiff says he has finished paying for the Lobengula West house, and equally defendant has finished paying for the Pumula North house. He says again on the 14 March 2015, the parties met for the purposes of trying to change the registration of the two properties. He alleges that on the 6 June 2015, 1st respondent gave him notice to vacate the Lobengula West house. This is what motivated the filing of the urgent application, which gave birth to this case.</p> <p>Mr <em>Zebeth Nkala</em>, deposed to a supporting affidavit. He says sometime between 1980 and 1981, the two litigants, who are his brothers, entered into an agreement to swoop their properties. He says this was caused by the fact that first defendant could not raise the deposit required for the purchase of the Lobengula West house.</p> <p> Again one <em>Esther Mhlanga,</em> deposed to a supporting affidavit. She says, applicant has lived in the Lobengula West house since 1981 and he is the one who paid for it. 1st respondent has lived in the Pumula North house, since 1981 and he is the one who paid for it. She confirms that on the 14 March 2015, the family met to discuss the transfer of registration of the properties. One <em>Elias Mazolo Ncube</em>, in a supporting affidavit, says that plaintiff has lived in the Lobengula West house, and defendant has always lived in the Pumula North house. He also confirms the meeting of the 14 March 2015.</p> <p>In his opposing affidavit, 1st defendant accepts that there was an intention to swoop houses, between him and plaintiff. He says he is the registered owner of the Lobengula West house. He denies that he failed to pay the deposit for this house when it was allocated to him by the municipality.</p> <p> He says he came to stay at the Pumula North house at the request of <em>Zebeth Nkala.</em> He says the Pumula North house is registered in plaintiff’s name, together with <em>Zebeth Nkala’s</em>wife. To protect his interests in this house, <em>Zebeth Nkala</em>, the actual owner of the Pumula North house, then requested 1st defendant to stay thereat. He says he never regarded the Pumula North house as his, as a result he registered with the municipality for his own house. When he was allocated the Lobengula West house, <em>Zebeth Nkala</em> suggested that 1st defendant continues residing at the Pumula North house, and allow plaintiff, who for all intents and purposes had no house, to stay at the Lobengula West house.</p> <p>1st defendant contends that the issue of swapping houses was first discussed in 1995. He was agreeable to the proposal, and the terms of the swapping were that, plaintiff would build, at his cost, an additional room to the Pumula North house. Plaintiff would also pay all the swapping costs. He says at the housing office, plaintiff refused to fund the transfer process. 1stdefendant says he then realised that plaintiff would also renege on the agreement to build an extra room in the Pumula North house.</p> <p>1st defendant says, later on he had an altercation with the children of <em>Zebeth Nkala’s wife, </em>who is registered as the spouse of the plaintiff in municipality, in respect of the Pumula North house. The children claimed that the Pumula North house is their mother’s property. He says they ordered him to vacate the house.</p> <p>1st defendant says he did not agree with the outcome of the family meeting. However, he agreed to swap houses on the terms that plaintiff constructs or gives him the value of a one-room extension to the Pumula North house, and to pay all the costs incidental to the cession of names for both properties, which plaintiff declined.</p> <p> </p> <p> </p> <p> </p> <p><strong>Plaintiff’s version</strong></p> <p>During <em>viva voce</em> evidence, the plaintiff told the court that 1st defendant is his elder brother. Plaintiff resides at the Lobengula West house, a property registered in the name of the 1st defendant. 1st defendant resides at the Pumula North house, a property registered in the name of the plaintiff. He says during the colonial era, no person was allowed to buy a house without a marriage certificate. One Zebeth Nkala (elder brother to plaintiff and 1st defendant), requested plaintiff to solemnise a marriage with one Khelita (Zebeth Nkala’s wife), for the purpose of acquiring a marriage certificate and then use that certificate to acquire a house from the municipality. The need for a family home in Bulawayo, was necessitated by the fact that, because of the war, their parents moved to the city. They needed a place to stay.</p> <p>On the basis of the marriage certificate, the municipality allocated plaintiff and Khelita house. This is the Pumula North house. It was allocated in 1980 and plaintiff says the agreement of sale was signed in 1981. Plaintiff produced a copy of the agreement of sale with the municipality. It is before court and marked Exhibit A1.</p> <p>Zebeth Nkala was the first to stay at the Pumula North house with his wife Khelita and their family. Plaintiff says it was the wish of the three brothers (him, 1st defendant and Zebeth Nkala<em>)</em>, that each one of them should own a house in Bulawayo. Zebeth Nkala was later allocated a house in Lobengula West, he then moved out of the Pumula North house. When he moved out, 1st defendant took occupation of the Pumula North house.</p> <p>According to plaintiff, 1st defendant, while staying at the Pumula North house, had applied for his own house, he was then allocated the Lobengula West house. The house which is at the centre of this dispute. Plaintiff told the court that when 1stdefendant was notified that his application had been approved and a house was ready for allocation, he (1stdefendant) did not have money to pay the required deposit. Then the three brothers (plaintiff, 1st defendant and Zebeth Nkala), sat down and discussed the matter.</p> <p>Plaintiff then informed the 1st defendant that he had the money to pay for the deposit for the Lobengula West house. He would pay if 1st defendant allowed him to take the property. He says 1st defendant agreed. He alleges that he produced the money, $480.00, and handed it over to Zebeth Nkala to pay at the offices of the municipality. The payment was made and he then moved to occupy the house.</p> <p>Plaintiff says because the Pumula North house, was on a leasehold, it was agreed that they waited until such time that it was on home ownership, then him and 1stdefendant would effect the swap, plaintiff taking transfer of the Lobengula West house and 1stdefendant taking transfer of the Pumula North house. Plaintiff was paying rent for the Lobengula West house, which he was occupying, and 1st defendant was paying rent for the Pumula North house, which he was occupying.</p> <p>Plaintiff produced proof of payment of rentals for the Lobengula West house, in the form of Exhibits A2, A3, A4, A5, A6, A7 and A8 before court. Plaintiff further says he put a perimeter wall around the property. He further did some other improvements to make the house habitable. However, he did not add a further room to the Lobengula West house. It is a five roomed house. He says 1st defendant also put a perimeter wall around the Pumula North house.</p> <p>Plaintiff says in 1995 him and 1st defendant went to the Pumula Housing office intending to change registration of the Pumula North property from his name to that of the defendant. He says this could not happen because, the property was in arrears in the sum of $300.00. He says from the Pumula Housing office, the two were supposed to proceed to Lobengula West housing office, to change the registration of the Lobengula West. This they could not do, as they had not managed to change the Pumula North house.</p> <p>In cross examination, plaintiff accepted that 1st defendant moved to the Pumula North house, because it was a family home. He says every member of the family used to stay in the Pumula North house.</p> <p>Plaintiff called the evidence of Elias Ncube Mazolo. He told the court that he is a cousin of the plaintiff and the 1st defendant.  He says in 2015 the plaintiff and the 1st defendant attempted to swap houses. He tried to assist them as a mediator. He was asked whether before 2015, was there any attempt to change ownership? He said he was not there, so he does not know.</p> <p>Finally, plaintiff called the evidence of Zebeth Nkala.  He told the court that plaintiff and the first defendant are his brothers. He says the Pumula house belongs to the plaintiff and Khelitha<em>,</em> (witness’s wife). The house was bought after he requested plaintiff to secure a marriage certificate with witness’s wife. He was the first to occupy the house with his wife and his parents. He moved out of the Pumula house, when he was allocated his own house in Lobengula West. Then 1st defendant moved to the house. He says first defendant sometimes paid the rent, sometimes he – witness - paid rent for the Pumula North house.</p> <p>            According to this witness, 1st defendant applied for the Lobengula West house. A house was allocated to 1st defendant. However a deposit was required to be paid, 1st defendant did not have the money for the deposit. He says, “we sat down as brothers, the three of us (plaintiff, first defendant and Zebeth Nkala), and agreed that the plaintiff who had the money should pay the deposit”. He contends that plaintiff then produced $480.00 and gave it to the witness to go and pay the deposit for the Lobengula West house. He says the agreement was that the Pumula North house would be transferred to the 1st defendant and the Lobengula West house to the plaintiff. In cross examination, the witness says, it was an agreement of the three brothers.</p> <p>Plaintiff closed his case.</p> <p> </p> <p><strong>First defendant’s version</strong></p> <p>            In his evidence, 1st defendant told the court that he resides at Pumula North house. He says he was approached by Zebeth Nkala<em>,</em> who requested him to move to the Pumula North house. According to 1st defendant, he stayed at this house, while awaiting the allocation of his own house, which he had applied for.  He was allocated the Lobengula West house. He says he paid the deposit required by the municipality the day he signed the agreement of sale. The agreement of sale was signed on the 10th August 1982, a copy of the agreement is before court and marked Exhibit B1.</p> <p>             According to the 1st defendant, him and plaintiff went to the Pumula Housing office, and explained to the officers that they wanted to swap houses. He was then given a form to complete. He declined to complete it without the knowledge of his children. He says it is at this point that he noted that the Pumula North house was allocated to plaintiff on the basis of a marriage certificate with Zebeth Nkala’<em>s </em>wife. He says he realised that staying in the Pumula North house would be a problem, because of the involvement of Zebeth Nkala’s wife. He says he has been receiving threats from the children of Zebeth Nkala’s wife, saying he is staying at their mother’s house, he must move out. He says his wife has moved out of the Pumula North house because of the threats from the children of Zebeth Nkala’s wife. He now wants to move to his Lobengula West house.</p> <p> He says when he was allocated a house by the municipality, he told Zebeth Nkala that he wanted to move to his Lobengula West house. Zebeth Nkala requested him to continue staying at the Pumula North house. He says he told plaintiff that he wanted to move to his own house, the Lobengula West house, he did not succeed.</p> <p>1st defendant appeared as someone of ill-health. At some point during his evidence, a request was made that he be permitted to testify while seated. I acceded to this request. He was subjected to long and winding cross-examination. At some point I had to caution and ask plaintiff’s counsel to withdraw what I considered to be inappropriate language in cross examining a witness. Some questions were very long, double and triple barrelled questions. Notwithstanding the untidy manner in which he was cross-examined, he stuck to his version. His version remained substantially compact. It was not dented. </p> <p>            At the conclusion of his testimony, 1st defendant closed his case.</p> <p>           </p> <p><strong>The issues. </strong></p> <p>The parties attended a pre-trial conference. The issues for determination as outlined in the pre-trial conference minute, are these:</p> <ol> <li>Whether or not there was an agreement by the parties to swoop stand number 70832 Lobengula West and stand number 6681 Pumula North, Bulawayo.</li> <li>Who paid for each of those houses until the purchase price was completed.</li> <li>Who should be deemed the lawful owner of the respective houses?</li> </ol> <p> </p> <p>The plaintiff, in moving the court to order the transfer to him of stand number 70832 Lobengula West, and to transfer stand number 6631 Pumula North to 1st defendant, is in effect seeking specific performance. This court will have to consider, on the factual matrix of this case, whether in the final analysis, plaintiff has made a case for specific performance. The<em> onus</em> is on the plaintiff on all issues.</p> <p> </p> <p><strong>What is plaintiff’s cause of action?</strong></p> <p>In <em>Abrahamse &amp; Sons v S.A. Railways and Harbours </em>1933 CPD 626, the court stated at 637 that the proper legal meaning of the expression “cause of action‟ is the entire set of facts which gives rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action. Such cause of action does not arise or accrue until the occurrence of the last of such facts and consequently is sometimes loosely spoken of as the cause of action. See <em>David Tendayi Matipano v Gold Driven Investments (Private) Limited </em>SC 19/2014.</p> <p>Plaintiff’s appreciation of its own cause of action is most confusing.  In the founding affidavit, and the <em>viva voce </em>evidence the cause of action was premised on an alleged agreement of between 1980 and 1981. However, in the cross-examination of the 1st defendant and closing submissions, <em>Mr</em> <em>Mlala </em>for the plaintiff started to submit on unjust enrichment and prescriptive prescription, which causes of action were not pleaded, nor identified as issues at the pre-trial conference.</p> <p><em>Mr</em> <em>Mlala </em>on being asked by the court as to what exactly was the plaintiff’s cause of action, his answer was very unsatisfactorily. First, he submitted that the cause of action was the agreement, together with the unjust enrichment and prescriptive prescription. After a moment he changed track, and argued that the cause of action was the agreement, and in the alternative unjust enrichment and prescriptive prescription.  Implicit in his submissions was that pleadings serve no useful purpose, a litigant can in the middle of a trial introduce a new cause of action which had not been pleaded.</p> <p>Pleadings serve a useful purpose in pleadings.  In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.  The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed. Again, the function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus arrive at certain clear issues on which both parties desire a judicial decision.</p> <p>In <em>Kali v Incorporated General Insurance Ltd</em> 1976 (2) SA 179 (D) at 182, the court remarked that the purpose of pleading is to clarify the issues between the parties and a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.</p> <p>In <em>Courtney–Clarke v Bassingthwaighte</em> 1991 (1) SA 684 (Nm), the court remarked at page 698 that in any case there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings … and giving judgment in favour of a plaintiff on a cause of action never pleaded.  In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.</p> <p>The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the litigants.  It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination.  Therefore, a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.</p> <p>According to <em>Mr Mlala,</em> plaintiff’s cause of action is the agreement that he alleges he entered into with the defendant. He argues that the cause of action progresses and broadens to also include unjust enrichment and acquisitive prescription. He argues that the causes of action become intertwined – whatever that means - during the trial as it progresses. On reflection, he submits that these three causes of action should be considered jointly. He changes and submits that he is raising these causes of action as alternatives. I do not agree. A party cannot be permitted to conduct litigation in such an unorthodox manner.</p> <p> A party claiming acquisitive prescription must allege and prove; civil possession- i.e. possession with the intention to possess and control as if he were the owner; possession for an uninterrupted period of 30 years or for a period which, together with any period for which the thing was possessed by any predecessor in title, constituted an uninterrupted period of 30 years; and that possession was exercised openly. Plaintiff did not plead acquisitive prescription. This issue was raised for the first time in cross-examination.  A court cannot allow the plaintiff to direct the attention of the 1st defendant to the alleged agreement, and then at the trial, attempt to canvass prescriptive prescription.</p> <p>Plaintiff has also at the proverbial eleventh hour, raised the issue of unjust enrichment.</p> <p>To succeed with a claim based on undue enrichment the plaintiff must comply with four general requirements: First the plaintiff must be enriched, secondly the defendant must be impoverished, thirdly the defendant’s enrichment must be at the plaintiff’s expense and finally the defendant’s enrichment must be unjustified, which means that it must be without a legal cause.  Again this was not pleaded. This court cannot allow it to be raised at the trial stage.</p> <p>In any event, no evidence was presented to show the extent the plaintiff was unjustly enriched. The evidence is that each party paid rentals for the property it was occupying. Both parties constructed perimeter walls in respective properties they occupied. There is a dispute as to whether plaintiff paid the $480.00 deposit for the Lobengula West house, even if he did he occupied a bigger house than the defendant. This is so because there is evidence that the Lobengula West property has five rooms, while the Pumula North property has three rooms. A properly pleaded claim based on unjust enrichment would require the factoring in of all these exigencies.</p> <p>            The cause of action pleaded in the papers before court is that the plaintiff and the 1st defendant allegedly entered into an oral agreement sometime between 1980 and 1981 to swap houses. This is the cause of action that this court will consider. It is upon this cause of action that the plaintiff’s case must stand or fall.</p> <p> </p> <p><strong>Is there contract between plaintiff and 1st defendant? </strong></p> <p>In an action based on a contact, the material averments that must usually be made are the existence of the contract, the relevant terms of the contract and the applicability of those terms to the particular right forming the basis <em>ex contractu</em> of the claim – <em>Herbstein &amp; Van Winsen,The Civil Practice of the High Courts of South Africa</em>, op cit, p 569. </p> <p>An agreement is not necessarily a contract. The party relying on the agreement must prove that the agreement was intended to be a contract - that is, the intention was to give rise to legal relations. See <em>Dilokong Chrome Mines (Edms) Direkteur-General, Department van Handel &amp; Nywer-heid</em> [1992] 2 All SA 209 (A), 1992 (4) SA 1 (A), <em>Government of the Self-Governing Territory of KwaZulu v Mahlangu</em>1994 (1) SA 626 (T). A party alleging a contract must allege and prove the terms of the agreement on which he or she seeks to rely. See <em>McWilliams v First Consolidated Holdings (Pty) Ltd</em> [1982] 1 All SA 245 (A), 1982 (2) SA 1 (A),<em>Badenhorst v Van Rensburg</em> [1986] 4 ALL SA 417 (T), 1985 SA 321 (T) p. 335. Proof of the terms of the contract includes proof of the anterior question of whether the parties had the requisite <em>animus contrahendi </em>or intent to contract, i.e. an intention to be bound by contractual, treaty, or other legal obligations.</p> <p>Has plaintiff proved that there was an agreement?   If it has, has it proved that the agreement was intended to be a contract - that is, was the intention to give rise to legal relations? The <em>onus </em>is on the plaintiff. In order to determine these issues, it is necessary to traverse the evidence in some detail. Prior to doing so, however, I shall set out what I consider to be the proper approach to determining the facts in civil trials. Plaintiff must, in order to succeed, prove its claim on a balance of probabilities. What this means, what has to be done to discharge the <em>onus</em> and how a court must approach the evidence in a civil trial was dealt with in <em>National Employers General Insurance Co Ltd v Jagers</em>, 1984 (4) SA where the court said:</p> <p>It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court neverthelessbelieves him and is satisfied that his evidence is true and that the defendant's version is false. This view seems to me to be in general accordance with the views expressed by COETZEE J in <em>Koster Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens</em> (supra ) and <em>African Eagle Assurance Co Ltd v Cainer </em>(supra). I would merely stress however that when in such circumstances one talks about a plaintiff having discharged the onus which rested upon him on a balance of probabilities one really means that the Court is satisfied on a balance of probabilities that he was telling the truth and that his version was therefore acceptable. It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities.</p> <p> </p> <p>Plaintiff alleges that there was an agreement, the terms of which were that he would occupy the stand number 70832 Lobengula West, and 1stdefendant would occupy the stand number 6631 Pumula North. That after the properties have been fully paid for with the municipality, then the swop would be consummated. He says in 1995 and 2015, there were family meetings attempting to resolve the issue between him and the 1st defendant. It appears to me that the reasons why there was need for a family meetings to convene and try to resolve the issue between the two, was because there was no agreement.</p> <p>The role played by Zebeth Nkala<em>,</em> needs particular mention. He is the elder brother of the two litigants. The Pumula North house was his idea. He even went to the extent of having the plaintiff, his young brother solemnise a marriage of convenience with his wife (Zebeth Nkala’s wife<em>), </em>for the purposes of applying for the house. When the municipality allocated the house, he was the first to reside at the house with his wife and family. He is the one who invited 1st defendant to move to the Pumula North house. When referring to the alleged agreement to swap houses, he says “we agreed,” referring to him, plaintiff and first defendant. He says he is the one who was given money by the plaintiff to pay the deposit for the Lobengula West house. Everything that happened appears to have been his idea. I find him cunning.</p> <p>I find the evidence of Elias Ncube Mazolo to have been rehearsed. He was happy to narrate how the plaintiff and 1st defendant agreed to swap houses. By his own evidence he got involved only in 2015 as a mediator. He says before 2015 he was not there, he does not know what happened. I take the view that, he was merely associating himself with the plaintiff’s narrative.</p> <p>Defendant says there was an intention to conclude an agreement. He would have agreed if plaintiff would build, at his cost, an additional room to the Pumula North house, and pay the costs of the swap. This, he contends, the plaintiff did not accept.</p> <p>The evidence before court is that a family meeting was held in 1995 to discuss the issue of swapping houses. Another family meeting was held in 2015 to discuss the same issue. If there was an agreement, why still meet to discuss the same issue? There would be no reason to meet. If there was an agreement, why would Mr Elias Ncube Mazolo, mediate between the parties in 1915? The reason he mediated is because there was no agreement.</p> <p>Again, according to the plaintiff, the agreement to swop houses was entered into between 1980 and 1981. At that point in time, the litigants had no houses to agree to swap. Plaintiff has not produced evidence that, at law he had authority to enter into an agreement in respect of the Pumula North house between 1980 and 1981. He only signed an agreement of sale with the municipality in 1982. 1st respondent denies that he entered into such agreement. Even if he did, at law, he could not, because he only had an agreement with the municipality in 1986.</p> <p>Again, there appears to have been an attempt, marshalled by Zebeth Nkala, to arm-twist 1st respondent to enter into an agreement with plaintiff. Plaintiff and Zebeth Nkala, appear sophisticated persons, while 1stdefendant appears unsophisticated. I could sense a real likelihood of the two brothers intending to take advantage of the poor 1st defendant. </p> <p>The probabilities of the case favour first respondent’s version, that there was an intention to agree, which did not occur.</p> <p><em>Mr</em> <em>Mlala </em>suspensive condition argument, throws more credence to 1st defendant’s version. According Mr <em>Mlala,</em> the contract contained a suspensive condition, being that once the properties are ready for a transfer, then the swap would occur. He says the enforceability of the contract would occur when the suspensive condition would have been fulfilled, i.e. when both properties are ready for transfer. <em>Mr</em> <em>Mlala’</em>s argument, taken to its logical conclusion, is actually self-defeating. Stand number 70832 Lobengula West is not ready to be transferred. It has no title deeds. Again stand number 6631 Pumula North, is not ready to be transferred. It has no title deeds. Furthermore, no cession certificates were produced for the two properties. All the court has are agreements of sale, i.e. exhibit A1 and B1. Therefore, the suspensive condition has not been met. No action lies to compel a party to fulfil a suspensive condition. If the condition is not fulfilled, the contract falls away. See <em>Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd </em>[1978] 3 All SA 406 (A), 1978 (2) SA 872 (A).</p> <p>I take the view that, there was an intention to seal an agreement, which was not done. The intention to seal an agreement, cannot be elevated to a contract, which can be enforced by a court of law. See <em>Dilokong Chrome Mines (Edms) Direkteur-General, Department van Handel &amp; Nywer-heid</em> [1992] 2 All SA 209 (A), 1992 (4) SA 1 (A), <em>Government of the Self-Governing Territory of KwaZulu v Mahlangu</em>1994 (1) SA 626 (T).</p> <p> </p> <p><strong>Specific performance</strong></p> <p>The plaintiff, in moving the court to order the transfer to him of the Lobengula West property on the basis of the alleged agreement with 1st defendant, is in effect seeking specific performance.          Specific performance is an extraordinary equitable remedy that compels a party to execute a contract in terms of the precise terms agreed upon. It is an order which grants the plaintiff what he bargained for in the contract. A valid contract must exist between the parties and the party seeking specific performance must have substantially fulfilled his obligations in terms of the contract. A party may also be granted the relief if he has offered to do or is ready and willing to do all acts that were required of him to execute the contract according to its terms. See <em>Claudio Chiarelli v Bouna Investments (Private) Limited T/A Bouna Safaris, Travel and Tour</em> HH 678-15.</p> <p>There are many cases in which it was held that if one party to the agreement repudiates the agreement, the other party at his election, may claim specific performance of the agreement or damages in <em>lieu </em>of specific performance and that his claim will in general be granted, subject to the court’s discretion. See <em>Farmers’ Co-operative Society (Reg) v Berry </em>1912 AD 343; <em>Victoria Falls &amp; Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd </em>1915 AD 1; <em>Woods v Walters </em>1921 AD 303; <em>Shill v Milner</em> 1937 AD 101; <em>Haynes v Kingwilliamstown Municipality </em>1951 (2) SA 371 (A); <em>Rens v Coltman</em>1996 (1) SA 452 (A).</p> <p><em>Farmers’ Co-operative Society </em>concerned a claim for the delivery of certain movables, alternatively for damages. The question was whether specific performance should be decreed. Innes JA answered that question as follows at 350:</p> <p><em>Prima facie </em>every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE, C.J., in <em>Thompson vs. Pullinger </em>(1 O. R., at p. 301), “the right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt.” It is true that Courts will exercise a discretion in determining whether or not decrees of specific performance should be made. They will not, of course, be issued where it is impossible for the defendant to comply with them. And there are many cases in which justice between the parties can be fully and conveniently done by an award of damages. . .</p> <p>In <em>Benson</em> v <em>SA Mutual Life Assurance Society</em> 1986 (1) SA 776 (A), the court stated the plaintiff has the right of election whether to hold a defendant to his contract and claim performance by him of precisely what he bound himself to do, or to claim damages for the breach.  That right of choice a defendant does not enjoy.  Although the Court will, as far as possible, give effect to a plaintiff's choice to claim specific performance, it has a discretion to refuse to decree specific performance and leave the plaintiff to claim and prove his <em>id quod interest</em>.  That discretion must be exercised judicially.  Each case must be judged in the light of its own circumstances.  At p 783 C-D the court said -</p> <p> This does not mean that the discretion is in all respects completely unfettered.  It remains, after all, a judicial discretion and from its very nature arises the requirement that it is not to be exercised capriciously, not upon a wrong principle (<em>Ex parte Neethling</em> (<em>supra</em> at 335).  It is aimed at preventing an injustice - for cases do arise where justice demands that a plaintiff be denied his right to performance - and the basic principle thus is that the order which the Court makes should not produce an unjust result which will be the case, e.g. if, in the particular circumstances, the order will operate unduly harshly on the defendant.</p> <p>The jurisprudence shows that it is settled that a plaintiff who elects to enforce a contract is entitled to specific performance where the defendant is in a position to perform the contract – because justice demands that those who enter into contracts should fulfil their obligations. See <em>Farmers Co-op Society v Berry</em> 1912 AD 343 at 350; <em>Smith &amp; Ors v Zimbabwe Electricity Supply Authority</em> 2003 (1) ZLR 158 at 158G.</p> <p>Specific performance is a discretionary remedy vested in the courts. In the exercise of such discretion, the general rule is that, p<em>rima facie,</em> every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand the other party, so far as it is possible, to perform its undertaking in terms of the contract. Courts will exercise a discretion in determining whether or not decrees of specific performance will be made. See <em>Hativagone &amp; Another v CAG Farms (Pvt) Ltd &amp; Others</em> SC 42-2015 at 16.</p> <p>The judicial discretion must not be exercised capriciously, nor upon wrong principle. It must be exercised in such a manner as to prevent an injustice. See <em>Benson v SA Mutual Life Assurance </em>1986 (1) SA 776 at 783. There are circumstances in which a court my refuse to grant the remedy of specific performance, e.g. a litigant cannot seek specific performance, unless it has performed its part of the bargain.</p> <p>            It is settled law that every party to a binding contract who is ready to carry out its own obligations under it has a right to demand from the other party, so far as it is possible, performance of that other party’s obligations in terms of the contract. See <em>Farmers Co-Operative Society</em> v <em>Berry</em> 1912 AD 343 @ 380. In matters involving payment of money, the full amount must have been paid or at least there must be a tender for payment of the full amount owing, otherwise the creditor is allowed to refuse the tender and the debtor is not entitled to specific performance. See Christie <em>The Law of Contract in South Africa 5 ed p 405.</em></p> <p>            <em>In</em> <em>casu,</em> I have found that there was no agreement between the parties that could be elevated to a contract. The court cannot order specific performance where there is no contract.</p> <p>            Furthermore, even if a contract did exist between the parties, the court could still, in its discretion refuse to order specific performance. Both parties are in possession of agreements of sale with second respondent in respect of the properties in their respective names. The agreements of sale between the plaintiff and the municipality in respect of house number 6631 Pumula North was sealed 26 November 1986. Clause 11(a) of the of agreement of sale which is before as Exhibit B1, says the purchaser shall not at any time before the said piece of land has been transferred into his name, sell the piece of land or cede, assign, transfer or make over any of his rights under this agreement without the written consent of the municipality.</p> <p>            The agreement of sale between 1st defendant and the municipality was sealed on the 10thAugust 1982. Clause 12of the of agreement of sale which is before court as Exhibit B1, says the purchaser shall not at any time before the said piece of land has been transferred into his name, sell the piece of land or cede, assign, transfer or make over any of his rights under this agreement without the written consent of the municipality.</p> <p>There is no evidence before court, that at the time of the alleged agreement, as contended by plaintiff, the parties had complied with clause 11(a) and clause 12 of their respective agreements with the municipality. There is no evidence that has been placed before court that at the time of the trial of this matter, there was such compliance. The clauses are clear and peremptory. The purchase shall not at any time before the said piece of land has been transferred into his name, sell the piece of land or cede, assign, transfer or make over any of his rights under this agreement without the written consent of the municipality. It is immaterial that the municipality did not oppose this application. The sticking point is that neither of the parties have the written consent of the municipality to transfer the properties as sought by the plaintiff in this case. Even if such agreement was entered, it is at law invalid for non-compliance with the clauses 11(a) and 12 of the party’s agreements with the municipality.</p> <p>At the time of the alleged agreement, there was no written consent of the municipality.  Even at the time of the trial, wherein a transfer order is sought from this court, no written consent of the municipality has been obtained.</p> <p>The court cannot provide judicial assistance to a litigant who is intending to consummate an alleged agreement which is in non-compliance with municipality requirements. This court cannot order transfer of the respective properties without proof of the written consent of the municipality. This court cannot order the municipality to effect the transfers, against a clear violation of its agreements of sale with the parties. This court cannot order the municipality to consummate agreements that violate its agreements with it. Without written consent of the municipality, this court would not even have come to the aid of the plaintiff. The written consent of council is required for a purpose. Is not given for the asking. There are requirements that the applicant for such written consent must meet before such consent is given.  A court can then not order a transfer that seeks to bypass and undermine the requirements of the municipality. Even if there was an agreement, its performance is impossible.</p> <p>In conclusion, my finding is that plaintiff has not proved its case on a balance of probabilities. The claim must therefore be dismissed.</p> <p>The plaintiff has failed to obtain the relief he sought from this court. There are no special reasons warranting a departure from the general rule that costs should follow the result. The 1st defendant is therefore entitled to his costs of suit.</p> <p> </p> <p><strong>Disposition </strong></p> <p>Plaintiff seeks the remedy of a specific performance, it must prove the existence of an agreement, which can be elevated to a contract. He who claims relief must assert and prove the facts on which his claim is based. Plaintiff has failed to prove a contract with clear and precise terms. It is therefore, not entitled to the remedy of specific performance. In the result, I order as follows:</p> <ol> <li>The provisional order granted on the 16 June 2016, is and hereby discharged.</li> <li>The plaintiff’s case is dismissed with costs of suit.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Sansole and Senda, </em>plaintiff’<em>s</em> legal practitioners</p> <p><em>Mlotshwa&amp;Maguwudze ,</em>1st defendant’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/116/2020-zwbhc-116.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42275">2020-zwbhc-116.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/116/2020-zwbhc-116.pdf" type="application/pdf; length=563981">2020-zwbhc-116.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/specific-performance">Specific performance</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suspensive-condition">Suspensive condition</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contents-pleadings">contents of pleadings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extent-which-parties-are-bound-pleadings">extent to which parties are bound by pleadings</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/19">Matipano v Gold Driven Inv (Pvt) Ltd (SC 225/12) [2014] ZWSC 19 (23 March 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/678">Chiarelli v Bouna Inv. (Pvt) Ltd (HC 10167/14) [2015] ZWHHC 678 (21 July 2015);</a></div></div></div> Wed, 08 Jul 2020 12:59:50 +0000 Sandra 9777 at https://old.zimlii.org