CMED Pvt LTD V First OIL Company & 6 ORS

### Preamble
1
HH 495-13
HC 3679/13
CMED PVT LTD
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CMED PVT LTD
versus
FIRST OIL COMPANY
and
PETROGRADE PVT LTD
and
NATIONAL OIL INFRASTRUCTURE COMPANY OF ZIMBABWE PVT LTD
and
MW KATUNGA
and
LG KATUNGA
and
ALEX K KAHUNI
and
GAVIN KATUNGA

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 22 November 2013 & 18 December 2013

Opposed application

Z.T. Zvobgo for 3rd Defendant (Applicant)
T.K Hove for Plaintiff (Respondent)

TSANGA J: This exception has been filed by the third defendant in a matter in which it purports to be sued by the plaintiff (CMED) as one of the material players in the non-delivery of 3 million litres of diesel that was due to it from the first defendant, FIRST OIL. The third defendants argues that the plaintiff’s summons do not disclose a cause of action in terms of order 2 Rule 11 (C) which requires a true and concise statement of the nature, extent and grounds of the cause of action and of the relief and remedies sought in the action. The third defendant also relies on Order 17 r 109 which also deals with issues of conciseness in a plaintiff’s declaration.

The brief facts are that the first defendant won a tender to supply this fuel. Before the plaintiff effected payment it sought to ascertain as part of due diligence enquiry whether the first defendant would be able to supply the fuel. This fuel was not delivered. The plaintiff included the third defendant in its summons suing for the delivery of the full or alternatively the repayment of the sum of $2 700 000 advanced to the first defendant with the requisite interest. The plaintiff has cited the third defendant jointly and severally as one of those obliged to deliver the fuel or to pay up on the basis of a letter that it wrote in which it stated as follows:

This letter serves as a confirmation that we are holding 3 million litres of diesel on behalf of PETROGRADE that has been reserved for First Oil at our Msasa Storage Tanks.

The third defendant has excepted to the summons as vague and embarrassing. The third defendant also argues that the summons do not disclose whether the plaintiff’s claim lies in contract or delict. Mr Zvobgo counsel for third defendant argued that the summons failed to disclose how the third defendant is implicated in the case. All that the plaintiff did was to refer to the above and that it is only in the motive of opposition to the exception that the plaintiff makes reference to what it claims to be defendant’s obligations.

He also argued that despite the plaintiff’s attempt to remedy the vagueness as to whether the claim against the third defendant lay in contract or delict by alleging a delictual link, the summons remained vague against the third defendant. This according to Mr Hove is because there was no misrepresentation by the third respondent. The essence of His objection was that fresh averments were being made in the notice of opposition which do not emerge in the declaration. He further stated that the third defendant had taken steps through a letter informing plaintiff of defect in summons and the fact that they convoluted two claims. Instead of amending the summons the plaintiff is said to have argued that they were sufficient. For these reasons Mr Zvobgo maintained that the plaintiff could not now seek to make new averments in the notice of opposition. Instead, he argued, summons must be dismissed as disclosing no cause of action. He cited the case of Shinga v General Accident Assurance 1989 (2) ZLR 268 on the description of a cause of action as every fact necessary for the plaintiff in order to support a right to judgment.

Mr Hove for the plaintiff argued on the other hand that for an exception to be upheld the excipient must show that it has been prejudiced by the defect and that no other remedy was available. The test of prejudiced he averred, is that they do not know what a case they have to answer. In such a case he argued that further particulars can be sought. His point was that the third defendant did not do so. He also maintained that his purpose of a declaration is to provide a general statement rather than give evidence. His averment in this regard was that a general statement had been given in the summons. In his view instead of seeking further particulars which would have clarified the matter, the third respondent chose to except. He argued that the third respondent’s exception is meant to vex the plaintiff. As a result he sought for the exception to be dismissed with costs *de bonis propriis* for adopting wrong procedure.

In response Mr *Zvobgo* for the third respondent argued that the rules do not state that the only remedy before an exception can be sought is to request further particulars. He referred in this regard to Rule 140(1) which permits a letter to be written. It is apt to capture the relevant provisions alluded to in this matter.

Order 3 Rule 11(c) of the High Court of Zimbabwe Rules [the Rules] is couched as follows:

“Before issue every summons shall contain--a) .................
b) .................
c) A true and concise statement of the nature, extent and grounds of cause of action and of the relief and remedies sought in the action d) ...........”

Order 17 rule 109 provides in part as follows

‘The statement of the plaintiff’s claim shall be called his declaration, and it shall state truly and concisely ................................ the capacity in which he is sued and the nature, extent and grounds of the cause of action, complaint or demand.”

Order 21 rule 140 of the same Rules is worded as follows:

(1) “Before-
a) Making a court application to strike out any portion of a pleading on any grounds; or
b) Filing any exception to a pleading;
The party complaining of any pleading may state by letter to the other party the nature of his complaint and call upon the other party to amend his pleading so as to remove his cause of complaint.”

Subrule (3) of this rule also allows the court to take into account the above provision in dealing with the costs of any motion to strike out.

The letter written by the third defendant’s practitioners on 11 June 2013 clearly comply with the above stipulation. The letter pointed out that the summons disclosed no cause of action. Instead of providing further particulars the defendants’ two line response on the 23\textsuperscript{rd} of June was simply to the effect that the plaintiff’s summons and declaration disclose the cause of action in respect of all the defendants.

In the case of *Living Hands (Pty) Ltd and Another v Ditz and Ors* 2013 (2) SA at pp 275-376, MAKGOKA J distils the general principles of exception as follows: a) In considering an exception that a pleading does not sustain a cause of action, the court will accept, as true the allegations pleaded by the plaintiff to assess whether they disclose a cause of action.

b) The object of an exception is not to embarrass one’s opponent or to take advantage of a technical flaw, but to dispose of the case or a portion thereof in an expeditious manner, or to protect oneself against an embarrassment which is so series as to merit the costs even of an exception.

c) The purpose of an exception is to raise a substantive question of law which may have the effect of settling the dispute between the parties. If the exception is not taken for that purpose, an exception should make out a very clear case before it would be allowed to succeed.

d) An excipient who alleges that a summons does not disclose a cause of action must establish that, upon any construction of the particulars of claim, no cause of action is disclosed.

e) An over technical approach should be avid because it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit.

f) Pleadings must be read as a whole and an exception cannot be taken to a paragraph or a part of pleading that is not self-contained.

g) Minor blemishes and unradical embarrassments caused by a pleading can and should be cured by further particulars.

Having heard counsel’s arguments and gone through the documents, I fail to see how the summons and declaration disclosed a cause of action against the third defendant. I do not think that the third respondent has brought this claim merely to embarrass the plaintiff. It filed the exception because it is genuinely difficult to unearth the cause of action from the summons and declarations against the excipient. Even when one looks at the new averments in the opposition papers, the link between the non-delivery of the fuel and any action in delict or otherwise on the third defendant’s part is difficult to make. The plaintiff alleges a duty of care towards it by the third defendant. I do not see how this can be so. The documents placed before me fail to disclose the cause of action against the third defendant. A letter was written to the plaintiff pointing out the defects. It was the plaintiff who chose to be curt and dismissive of the complaint raised by simply averring that its details were sufficient. The plaintiff’s argument that the third defendant is bound in delict as it concluded the contract with the first defendant on the strength of the third defendant’s letter. The reason for non--delivery of the fuel appears to have absolutely nothing to do with the fact that the third defendant had no fuel to deliver. The plaintiff’s misfortunes appear to have emanated from transfer of monies outside the country at the behest of the first defendant. It is not at all clear how the third defendant can be said to be responsible for any eventualities that stemmed from this.

The plaintiff cited the case of *Chirimuta v Action Property Sales Pvt Ltd* HH 5/2007 as being similar to the case in point. This is not the case as in the Chirimuta case the involvement of the party upon whose statements had been relied on was a much more active one in the actual contract than it is in this case. The plaintiff appears to be casting its net very widely in the hope of some recovery of its monies.

Taking all the above factors into account the third defendant’s exception is upheld. The third defendant has sought costs on an attorney client scale. I do think that costs on a higher scale against the plaintiffs are justified as the third defendant did seek to obtain clarity from the plaintiff and received little meaningful cooperation. Rule 140(3) permits such effort to be taken into account in the award of costs.

In the result the exception is upheld with costs on a legal practitioner and client scale.

T.K Hove & Partners, plaintiff’s legal practitioners
*Dube Manikai & Hwacha*, 3rd defendant’s legal practitioners
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