J D M AGRO-CONSULT & MARKETING (PVT) LTD v EDITOR, THE HERALD & ANOR 2007 (2) ZLR 71 (H)

Flynote

c Practice and procedure — parties — citation of — need to cite natural or legal persons — failure to do so — summons a nullity and incapable of amendment

Headnote

The plaintiff brought an action for defamation, citing as defendants "The Editor, The Herald" and "The Herald Newspaper". Appearance to defend was entered and a plea was filed. At the pre-trial conference, the plaintiff, by consent, amended the summons to cite, as second defendant, Zimbabwe Newspapers (1980) Ltd. No attempt was made to describe the first defendant as anything other than "The Editor, The Herald". At the trial, the defence took a point in limine, that the summons was invalid on the grounds that there were no defendants before the court. The Editor of The Herald, cited as the first defendant, did not exist: the editor of a newspaper is a position within the structures of a newspaper and is neither a natural nor a legal person. There is also no entity called "The Herald Newspaper" and the attempt to amend the summons at the pre-trial conference did not cure the invalidity. The plaintiff argued that: (1) the defendants were not entitled at the trial stage to raise a point in limine; the pleadings had closed and the defendants were not entitled thereafter to raise such a point and that to do so was acting in bad faith and (2) the citation of the defendants was due to a misnomer which could easily be cured by an appropriate application to amend the summons and declaration.

Held, that a party can amend its pleadings at any time, provided that there is no prejudice to the other party which is not capable of being cured by an award of costs. Such an application can be made even after pleadings have closed. The point raised by the defence did not fall under exceptions or special plea as it did not attack a defect in the pleadings. It dealt with an irregularity in the summons itself, which cannot be amended. The point in limine was a legal issue, in which the defendants averred that the summons was bad at law in that no defendant had been brought before the court and as a result the proceedings were a nullity.

Held, further, that the amendment of the summons at the pre-trial conference was without effect, as the party named as the second defendant did not exist at the time that the summons was issued and served.

Held, further, that even though the plaintiff tried to cure the defective summons in respect of the second defendant, no attempt to do so was made in respect of the first defendant. The position of editor of a newspaper is an occupation wherein the occupant can change from time to time. It is not a natural or legal person and there was no person identified by that name.

Held, further, that fact that the two defendants entered appearance to defend and proceeded to file a plea was irrelevant. The process of filing pleadings under those names would not have imbued the summons with any form of legality. The matter would therefore be struck off the roll.