Constantine Mandengu and Miriam Tawuya Mandengu v Peter Mandava and Premier Service Medical Investment (Pvt) Ltd t/a Premier Service Westend Hospital

### Preamble
1
HH 692 - 25
HCH 3297/25
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CONSTANTINE MANDENGU

and

MIRIAM TAWUYA MANDENGU

versus

PETER MANDAVA

and

PREMIER SERVICE MEDICAL INVESTMENT (PVT) LTD t/a PREMIER SERVICE WESTEND HOSPITAL

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE; 2 June 2025 & 3 November 2025

Exception and prescription

T. Marufu, for the 1st and 2nd plaintiffs

R.T. Benza, for the 1st defendant

DUBE-BANDA J:

The plaintiffs issued summons against the first and second defendants for damages and compensation, in total sum of USD1, 775,410.48 arising from the defendants’ alleged gross negligence; lack of diligence, skill, and care, in breach of their contractual duty to exercise reasonable skill and care.  The first defendant filed an exception and special plea of prescription, which are subject to this judgment. The second defendant also filed a special plea of lack of locus standi and prescription and pleaded over on the merits. In these circumstances, the second defendant did not participate in these proceedings.

Exception

On 3 March 2025, the first defendant delivered a notice of exception, and for the purposes of completion and clarity, I shall refer to the grounds of exception, and the plaintiffs’ replication (long as they are) as they appear on the Notice of Exception and Replication, respectively.

A reading of the summons and declaration suggests that there is conflation between a claim in terms of contract and a claim in terms of delict. It is trite that one cannot rely on both causes of action for the same relief. This is particularly so because the Plaintiffs did not make the claims in the alternative. The 1st Defendant is embarrassed as to his defence as he does not know in concise terms which claim he has to answer to: - contract or delict. See paragraphs 1,2,3,4,5 of the Summons and paragraphs 7,8,13,16,18,18(i),20 and 21 of the Declaration.

It is not clear what actually caused the respiratory failure/ emergency. All that the first defendant is aware of is the result (respiratory failure) but not the medical cause of it. There has to be a causal link between the harm and the alleged wrongful conduct.

As such, it is crucial for the first defendant to know the cause thereof so that he can plead whether that situation was indeed an emergency, foreseeable, preventable, whether the first defendant took any steps to prevent same, whether it was caused by himself or by any other intervention and whether it was attributable to any gross negligence as alleged.

The first defendant is embarrassed as to his defence as he does not know what caused the alleged harm. It goes to the root of the cause. See paragraph 18 of the declaration and paragraphs 10 and 11 of the further particulars issued on 10 March 2025.

WHEREFORE first defendant prays that his exception be upheld and that Plaintiffs claim(s) be dismissed with cost on a higher scale.

The plaintiffs, in their replication, filed in terms of r 42(9) of the High Court Rules, 2021, contend that:

The plaintiff’s cause of action is clear from the summons that it arises from the defendants’ gross negligence, lack of diligence, skill, and care.

It is neither here nor there that the plaintiffs engaged the second defendant and signed contractual hospital admission forms of the second defendant. The plaintiffs were billed by the second defendant for its services, the bills of which were settled in full by the plaintiffs.

It is common knowledge that the relationship between a medical practitioner and a patient is usually created by contract, whereas the medical practitioner undertakes to render professional services and the patient undertakes to pay for the services rendered.

The first defendant was engaged by Dr Israel Dube, the second defendant's General Surgeon. Each member had a special responsibility to the patient according to each's specialization and each with a patient-doctor duty of care. See paragraphs 8-10 of the Declaration. 5. It thus follows that the relationship of the parties arose from the contractual obligations of the defendants to the second plaintiff.

It thus follows that the relationship of the parties arose from the contractual obligations of the defendants to the second plaintiff.

Nonetheless, the defendants owed the second plaintiff a professional duty of care, which they failed to fulfill, thus giving a way to this delictual claim arising from professional negligence. See paragraphs 12-15 of the Declaration.

Due to such negligence, general and special damages were suffered by the plaintiffs as captured in the summons. The first defendant’s claim that he is embarrassed is without merit. The cause of action is apparent on the face of the summons, the exception should be dismissed accordingly.

The nature of the emergency is clearly outlined in paragraph 18 of the Declaration.

However, for clarity, the plaintiffs are willing to clarify further. The nature of the emergency was respiratory failure, due to the side effects of the residual anesthesia administered by the first defendant, which were not adequately monitored and ameliorated in time, that affected the second plaintiff’s breathing and the capacity of her lungs to absorb adequate oxygen, causing fatigue and respiratory failure. The intervention was belated as the first defendant was out of reach when called for the emergency and had not provided an alternative or standby arrangements to respond in time.

It should ultimately, in line with the above, be decided that the exception raised by the first defendant is a tactic employed to delay the proceedings. It cannot be said that in the absence of this information, the first defendant’s defence would be embarrassed.

WHEREFORE, the plaintiffs pray for the exception to be dismissed on a high scale of legal practitioner and own client scale. (My emphasis).

The exception raises two issues, the first is that there is a conflation between a claim in contract and a claim in delict, and that the first defendant does not know in concise terms which claim he has to answer to: - contract or delict. The second is that the summons and declaration do not disclose a cause of action, in that, it is not clear what caused the respiratory failure/ emergency, and that all that the first defendant is aware of is the result (respiratory failure) but not the medical cause of it.

The law relating to exceptions

It is a basic rule of pleading that the pleader must set out the facts which briefly and concisely identify the issues relied upon. In the case of particulars of claim, the plaintiff is required to set out a complete cause of action. An exception is a party’s objection to a pleading that appears, on the face of it, to be materially defective in its formulation. An exception presupposes that the case is without legal merit because of the defects identified. In Southernpoort Developments (Pty) Ltd v Transnet LTD 2003(5) SA 665 (W) the court formulated the following test for an exception to succeed: a) that the excipient must establish that the pleading is excipiable on every interpretation that can reasonably be attached to it.  b). A charitable test is used on exceptions, especially in deciding whether a cause of action is established, and the pleader is entitled to a benevolent interpretation. c). The court should not look at a pleading ‘with a magnifying glass of too high power’. d). The pleadings must be read as a whole; no paragraph can be read in isolation.

I shall deal first with the second ground of exception, wherein the first defendant contends that the summons and declaration do not disclose a cause of action, in that, it is not clear what caused the respiratory failure/ emergency, and that all that the first defendant is aware of is the result (respiratory failure) but not the medical cause of it. In Mphoko & Anor v Nanavac Investments (Pvt) Ltd & Ors HB 209-22 at p. 2 the court said:

“…An exception based on the lack of a cause of action in the plaintiff’s claims must establish that there are no facts pleaded that can be sustained even if evidence is led.”

The law does not require the plaintiff to set out the averments with such certainty that there is no room for any adjustments, but that the defendant should know what case it has to meet at trial, and consequently what evidence to prepare. In McKenzie v Farmers’ Cooperative Meat Industries Ltd 1922 AD 16 at para. 23 the court defined ‘cause of action’ thus:

“…every fact which it would be necessary for the respondent to prove, if traversed, in order to support his right to judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. (My emphasis).

In the present case, the summons, as amplified in the declaration, alleges the facts upon which the claim is based, i.e., the second plaintiff, because of the defendants’ gross negligence, lack of diligence, skill, and care suffered hypoxia or hypoxemia, leaving her brain dead, vegetative and disabled for the rest of her life. The facts on which the claim is based have been pleaded.  The first defendant is under the guise of exception, is seeking the evidence that will be presented to prove the pleaded facts. This is not the purpose of an exception. Whether the plaintiffs will succeed in their claims as set out is not something this court, seized with the exception, should concern itself with. The point is whether the plaintiffs pleaded the facts on which the cause of action is anchored. I am of the view that they did. In any event, even if the averments are lacking in detail, the remedy cannot be an exception. It is for these reasons that this ground of exception cannot succeed.

I now turn to the contention that that the summons and declaration are vague and embarrassing in that there is a conflation between a claim in contract and a claim in delict, and the first defendant does not know in concise terms which claim he has to answer: - contract or delict. In determining whether a pleading is vague and embarrassing, the enquiry is twofold. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced. See Quinlan v MacGregor 1960 (4) SA 383 (D) at 393E-H. The exception that a pleading is vague and embarrassing, is intended to cover the case where, although a cause of action appears in the pleadings there is some defect or incompleteness in the manner in which it is set out, which results in embarrassment to the defendant. See Lockhat v Minister of the Interior 1960 (3) SA 765 (D) at 777E. Pleadings have been held to be vague and embarrassing where, inter alia where it is not clear whether the plaintiff sues in contract or in delict. See Gerber v Naude 1971 (3) SA 55 (T).

It is important to highlight the difference between a claim based in contract and in delict. The two cover different terrains. The distinction between delicts and contracts lies in the origin of the duties which are breached in each case: a delict consists in the breach of a duty imposed by law and a breach of contract in a duty voluntarily assumed. In addition, the primary purpose of a contractual remedy is to enforce an agreement or compensate for the non-fulfilment of its terms. In a claim based on delict, the plaintiff must plead all the elements of a delict, viz, conduct, negligence, wrongfulness, causation and the loss suffered.

To sustain a cause of action for damages resulting from a breach of contract, the plaintiff must allege (i) the existence of a contract; (ii) breach of contract; (iii) loss; (iv) a causal link between the breach and loss; (v) that the loss was not too remote. On the other hand, to sustain a claim in delict, a party must; (i) plead a wrongful act; (2) and he or she must plead fault on the part of the defendant; and (3) he must plead patrimonial loss occasioned to him or her. Where the basis of the claim is negligence, the plaintiff must allege that the defendant was negligent. In addition, the plaintiff must allege the quantum of damages suffered as a result of the defendant’s wrongful act. See Harms LTG Amler’s Precedents of Pleadings (8th ed. LexisNexis) 236-239.

Therefore, a litigant cannot plead both contract and delict, unless they are pleaded in the alternative. Particulars of claim have been held to be vague and embarrassing where, inter alia, it is not clear whether the plaintiff sues in contract or in delict; See Masamba v Secretary - JSC HH 978/15 at pages 4 to 5. In the present case, the plaintiffs in their replication contend that the cause of action arises from the defendants’ gross negligence, lack of diligence, skill, and care. Which is indicative of a claim in delict. In the same breath, it is contended that the relationship of the parties arose from the contractual obligations. Which is a claim in contract. In addition, the plaintiffs plead in delict, and allege gross negligence, lack of diligence, skill, and care. In the same breath they plead breach of contractual duty to exercise reasonable skill and care, and breach of implied contractual relationship. In addition, it is in delict that “consequently, as a direct result of the defendants’ gross negligence; lack of diligence, skill,” and again in contract that the defendants “are in breach of a contractual duty to exercise reasonable skill and care.” As stated above, the plaintiff cannot plead delict and contract, unless such pleadings are in the alternative. Therefore, the contention that the pleadings in the summons and declaration are vague and embarrassing must succeed.

The first defendant sought that the exception be upheld, and the plaintiffs’ claim be dismissed with costs on a higher scale. The correct order to give when an exception has merit is to uphold it and not to dismiss the claim. See Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593A at 602C-D; Kumbula v Pearl Properties HH 20-16.

Special plea – prescription

In the special plea, it is contended that the cause of action arose on or about 18 March 2019, and the claim would have prescribed on 18 March 2022, but because of the second plaintiff’s mental incapacity, the claim prescribed on 11 June 2022. It is further contended that this matter was filed on 24 July 2024, when the claim had prescribed. In the alternative, it is contended that assuming prescription began to run when the harm was confirmed on 30 January 2020,  taking into account the mental incapacity, the claim would have prescribed on 30 January 2023. The claim was filed on 30 July 2024, when it had prescribed.

Per contra, the plaintiff disputes that the cause of action arose on the dates stated by the first defendant. It is contended that the cause of action could not have arisen on the date of diagnosis, but on the date the plaintiffs realized and were convinced that the defendant committed professional negligence actionable in delict. It is contended further that the cause of action arose on 26 October 2022, and prescription began to run on that date. It is contended that the summons was issued on 30 July 2024, and therefore the claim has not prescribed.

The plaintiffs sought that the special plea be dismissed with costs on a legal practitioner and client scale, and the first defendant be barred from filing subsequent pleadings.

In the present case, there is a factual dispute as to when the cause of action arose, and when prescription began to run. In a plea of prescription, the onus is on the defendant to show that the claim has prescribed. In such a case it is incumbent on the defendant alleging prescription to adduce evidence to show when the cause of action arose. In Brooker v Mudhanda & Anor; Pearce v Mudhanda & Anor 2018 (1) ZLR 33 (S), the court said:

“When one speaks of the need to discharge an onus, it immediately becomes clear that there is an evidential burden that must be met. There is no suggestion that such burden as required to be met was met by documents filed of record. There were no affidavits placed before the court a quo.”

The question is whether the first defendant has discharged the onus of showing that the claim has prescribed. In the face of a factual dispute as to when the cause of action arose, the first defendant did not adduce evidence to prove his case. It is the trite position of the law that he who alleges must prove. In general, civil litigation is litigant driven, the first defendant had an onus to discharge, but he did not adduce evidence to discharge such onus. Prescription has not been proved as required by the law. In the circumstances, the plea of prescription cannot succeed. It can only be dismissed.

The plaintiffs sought that the special plea be dismissed and the first defendant be barred from filing subsequent pleadings. My view is that a party that has filed a plea of prescription, and not pleaded over, on its dismissal, has a right to file further pleadings within the time allowed by the rules of court.

There remains to be considered the question of costs. Both parties have been partially successful. A no costs order will meet the justice of this case.

In the result, it is ordered as follows:

The exception predicated on the contention that the pleadings in the summons and declaration are vague and embarrassing in that it is not clear whether the plaintiffs are suing in contract or in delict in upheld.

The special plea of prescription is dismissed.

There is no order as to costs.

Dube – Banda J: ……………………………………………..

Muhonde Attorneys, plaintiffs’ legal practitioners

Matizanadzo Attorneys, first defendant’s legal practitioners