MASENDEKE V CHALIMBA & ORS 2014 (2) ZLR 63 (H)

Flynote

Delict — actio injuriarum — wrongful arrest — what must be pleaded — not necessary to c plead malice or animus injuriandi

Practice and procedure — summons — what summons should contain — need to outline grounds for claim and branch of law under claim is made — failure to do so — when different cause of action may be extracted from pleaded cause of action — need for facts pleaded to contain averments necessary to prove such other cause of action

Headnote

The plaintiff claimed for damages arising out of her arrest and detention by the police. The second, third, fourth and fifth defendants were the arresting details. The first defendant was alleged to have made a false report to the police that the plaintiff had kidnapped his minor daughters. The arresting details arrested the plaintiff in Bulawayo and drove her to a police station in Harare where she was detained for 24 hours. The plaintiff claimed that the police acted on a false and unlawful report made by the first defendant and arrested her without good cause, that the arrest and subsequent were unlawful and that whilst under detention she was subjected to threats, insults and general humiliation. The plaintiff claimed damages for unlawful deprivation of liberty, pain, suffering, contumelia and humiliation.

The first defendant filed a request for further particulars, requesting clarity on the plaintiff's cause of action against him. The plaintiff replied that her cause of action was the "false, wrongful and unlawful report" by the first respondent to the police. The first defendant excepted to the summons on the basis that the summons and declaration as read with the further particulars were bad at law and did not disclose a true and concise statement of the nature, extent and grounds of the cause of action as required by law. He also averred that the making of a report to the police, whether false or otherwise, did not in itself lead to a civil action, and did not cause any harm or prejudice to the person reported against. Accordingly, the cause of action was not valid at law and did not exist in law. The first defendant also took issue with the plaintiff's reference in her heads of argument for the exception to her cause of action being "malicious deprivation of liberty". The first defendant submitted that, as a result, he did not know what case he had to meet.

The plaintiff argued that she had set out the entire set of facts which formed the basis of the claim and that there was no obligation that the precise actio under which the claim was brought be set out in the pleadings. She further submitted the delict of malicious deprivation of liberty existed, and committed where the result complained of must have been caused without justification by the defendant himself or some person acting as his agent or servant under a valid judicial process.

The plaintiff further contended that the first defendant made improper use of State machinery through the police by making a false report.

Held, that r 11(c) of the High Court Rules requires that a summons should contain a true and concise statement of the nature, extent and grounds of the cause of action and of the relief or remedies sought in the action. The "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.

Held, further, that the object of a summons is not merely to bring the defendant before the court; it must also intimate to the defendant the nature of the claim or demand that the defendant is required to meet. It is insufficient to state in the summons merely the relief claimed. The summons must clearly outline the grounds on which the claim is brought and the branch of the law under which the cause of action arises, as well as the basis for the relief sought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Held, further, that the delict of "false, wrongful and unlawful report" does not exist in our jurisdiction. Malicious deprivation of liberty is a delict recognisable in our law. This cause of action was mentioned for the first time in the plaintiff's heads of argument for the exception. The pleaded case was based on an unlawful deprivation of liberty; there was no reference to malicious deprivation of liberty. It was not pleaded in the summons and declaration or further particulars. The plaintiff did not plead malice in the making of the report and subsequent detention of the plaintiff but simply that the arrest was unlawful.

Held, further, that the practice of extracting a possible claim from a pleaded cause of action which is sufficient to support a different cause of action is contrary to the principles guiding pleadings, which require that a litigant bringing an action state concisely its cause of action. A party seeking such an indulgence is required to show the existence of special circumstances justifying such a departure from the rule of practice. Such departure from the rules may also be permitted if the applicant can show that the other party is unlikely to be prejudiced by such a request or at the cost of proper investigation into the emerging issue. This practice creates an exception to the rule that a litigant is required to state concisely the nature of its claim in the summons and declaration. In determining whether there were special circumstances justifying the indulgence sought, the court had to consider whether the facts pleaded contained the averments necessary to prove a claim for malicious deprivation of liberty and whether the first defendant would suffer any prejudice were the court to grant the indulgence sought.

Held, further, that it is not necessary in cases involving arrests to plead malice and the fact that the instigation was without reasonable and probable cause. The arrest itself is prima facie such an odious interference with the liberty of the citizen that animus injuriandi is thereby presumed, and no allegation of actual subjective animus injuriandi is necessary. In such an action the plaintiff need only prove the arrest itself and the onus will then lie on the person responsible to establish that it was legally justified. Accordingly, although the delict was introduced at the heads of argument stage, the facts as outlined in the declaration were sufficient for the first defendant to plead. There was no need for the plaintiff to amend her summons and declaration. The first defendant would not suffer any prejudice from this course of action as he had not yet pleaded. He could plead on the basis of the cause of action proposed.