Sanyangowe v Chalimba & Ors (HC 344 of 2012) [2014] ZWHHC 79 (25 February 2014)

1 HH 79-14 HC 344/12 JOVITA SANYANGOWE versus ELVIS CHALIMBA and CONSTABLE CHIKATA and ASSISTANT INSPECTOR MAGUMANA and CO MINISTERS OF HOME AFFAIRS HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 20 February 2014 and 26 February 2014 Exception Ms D. Mandaza, for the plaintiff Ms E. Drury, for the 1st defendant MATHONSI J: The plaintiff sued the first defendant, who is the excipient in this matter, and 2 police officers, the second and third defendants, as well as the co-ministers of Home Affairs, for damages in the sum of US$150 000-00 arising out of her arrest and detention on charges under the Children‟s Act [Cap 5:06] In her declaration, the plaintiff averred that on an unknown date, the first defendant made a false report or caused a false report to be made to Marlborough Police to the effect that the plaintiff had neglected her minor daughters in breach of the law. As a result of that false report the plaintiff was arrested and subsequently made court appearances but the state subsequently withdrew the charges levelled against her. She then prayed for damages aforesaid, arising out of the unlawful deprivation of liberty, pain, suffering, contumelia and humiliation. There is nothing in the record to suggest that any complaint was made by the first defendant against that pleading as provided for in r 140 (1) (b) of the High Court of Zimbabwe Rules, 1971. However, the first defendant has excepted to the summons as follows: “The first defendant excepts to the plaintiff‟s summons, as read with her particulars as being wrong and bad in law in that it does not disclose a valid cause of action. More particularly that: HH 79-14 HC 344/12 1. The summons does not disclose a true and concise statement of the nature, extent and grounds of the cause of action as required by law; and 2. Plaintiff‟s further particulars set out that the cause of action is that of a „false, wrongful and unlawful report‟, which cause of action does not exist in law.” Ms Drury who appeared for the first defendant, appeared to abandon the first ground of attack relating to the violation of r 11 (c) in her address to the court as she placed emphasis upon the second ground of exception. I must mention that a failure to include a statement of the nature, extent and grounds of the cause of action and of the relief sought on the face of the summons is an omission that is easily curable by an amendment of that summons. Ms Drury sought an outright dismissal of the plaintiff‟s claim on the basis that the pleading is bad at law as it does not disclose a cause of action. In her view the plaintiff‟s claim “is totally absent”. It was submitted that the making of a report to the police, whether false or otherwise, does not cause any harm or prejudice to the reported person. For that reason, the first defendant cannot be expected to defend himself against a non-existent cause of action. Reliance for that proposition was placed on the words of MAKARAU JP (as she then was) in Chifamba v Mutasa & Ors HH16/08 (unreported) that; “The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet but pleadings also serve to identify the branch of law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action----. This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action ----. Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek----. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such” Ms Mandaza for the plaintiff strongly contested the claim that a cause of action is non existent. She maintained that the plaintiff‟s cause is sufficiently set out as being a false report made to the police which led to her unlawful arrest and deprivation of liberty. She submitted that the plaintiff‟s claim is based on the delict of malicious prosecution, or is it malicious report, which is enforceable at law. Unfortunately, malicious prosecution is not pleaded in the plaintiff‟s summons and declaration, which mentions only a false report. The essence of any claims is located in the pleadings whose function is to inform the parties of the points of issue between on them to enable them to know in advance, what case they have to meet, to assist HH 79-14 HC 344/12 the court define the limits of the action and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company HH304/13 at p2. It has however been stated that the court should not look at a pleading with a magnifying glass of too high power because doing so would almost certainly show flaws in all pleadings: Kahn v Stuart 1942 CPD 386 at p391. When an exception is taken, the court has a duty to see if there is a point of law to be decided which will dispose of the case in whole or in part. If not, whether there is any embarrassment which cannot be cured by a request for further particulars. Where neither of the 2 exist, the exception must be dismissed. Regarding an exception on the basis that a pleading does not disclose a cause of action, BEADLE AJ (as he then was) made the important point in Mc Kelvey v Cavan N. O. 1980 (4) SA525 (Z) that: “It is a first principle in dealing with matters of exception that if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action.” See also Mnangagwa v Alpha Media Holdings (Pvt) Ltd & Anor HH225/13. It is true that the correct cause of action in a matter of this nature is the delict of malicious prosecution or report. The plaintiff should have pleaded that the first defendant‟s report to the police that she was neglecting her children was malicious. She only pleaded that the report was false. While it is important that a pleading must identify the branch of the law under which the claim is brought; the averment that the report was false, although falling short, does remove any potential embarrassment on the part of the first defendant. It equips him sufficiently with what case he has to meet. It is a defect that can certainly be cured by a minor amendment. More importantly, the leading of evidence on the report can also assist in disclosing the very nature of the cause of action. I am therefore of the view that the plaintiff‟s summons and declaration are not incurably bad. I have already stated that there is nothing in the papers to suggest that the plaintiff‟s attention was drawn to defects as provided for in r 140(1) (b). That would have avoided this litigation. For that reason the first defendant is not entitled to an order for costs which should, at this stage remain in the cause. In the result, it is ordered that: 1. The first defendant‟s exception is hereby dismissed. 2. The plaintiff is granted leave to; HH 79-14 HC 344/12 (a) amend the face of her summons to incorporate 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 as provided for in r 11 (c) of the High Court of Zimbabwe Rules, 1971. (b) amend paragraph 7 of her declaration to include the necessary averments of the malicious nature of the report or prosecution. 3. The costs shall be in the main cause. Muzangaza, Mandaza & Tomana, plaintiff‟s legal practitioners Honey & Blackenberg, 1st defendant‟s legal practitioners