MATEWA v ZETDC 2013 (2) ZLR 263 (H)

Flynote

Practice and procedure — exception — when pleading may be excisable so as to lead to dismissal of action — impropriety of seeking dismissal of action when proper remedy is for plaintiff to amend pleadings

Headnote

? The defendant excepted to the plaintiff's summons on the grounds that it did not disclose a cause of action, as it did not specify whether the claim arose from a contractual obligation or a delictual one. It argued that the averment in the summons that the defendant's actions were wrongful and unlawful was not enough to found a cause of action and that in order to succeed in a suit for patrimonial loss under the Aquilian action the plaintiff must plead and prove that the defendant committed a wrongful act which resulted in actual loss.

Held, that the determination of whether a claim is excisable or not cannot be premised on proof of an averment. Proof relates to evidence which is the province of a trial and not an exception. The essence of any claim is located in the pleadings, whose function is to inform the parties of the points of issue between them, to enable them to know in advance what case they have to meet, to assist the court define the limits of the action and to place the issues on record. To that extent pleadings are required to be drawn in summary form, must be brief and concise and must state only relevant facts and not evidence. It is the duty of the court, when an exception is taken to a pleading, first to see if there is a point of law to be decided which will dispose of the case in the whole or in part. If there is not, then it must see if there is any embarrassment, which is real and cannot be met by the supply of particulars. Unless the excipient can satisfy the court that there is such a point of law or such real embarrassment, then the exception should be dismissed. pleading is only excisable

on the ground that it does not disclose a cause of action if no possible evidence led on the pleading can disclose such cause of action.

Held, further, that the courts are increasingly being called upon to adjudicate over exceptions which are devoid of merit and appear intended to delay proceedings. Invariably excipients are approaching the court, frequently praying for a dismissal of claims, as in casu, when the proper remedy would be for the plaintiff to be directed to amend the impugned pleading. Where an exception of this nature is upheld, the plaintiff should be allowed to amend the pleading.