Phineas Mariyapera v Douglas Vhurumundu & Chegutu Municipality

### Preamble
Judgment No. SC 129/22
1
Civil Appeal No. SC 361/22
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REPORTABLE:	(113)

PHINEAS     MARIYAPERA

v

DOUGLAS     VHURUMUNDU     (2)     CHEGUTU     MUNICIPALITY

SUPREME COURT OF ZIMBABWE

UCHENA JA, MATHONSI JA & CHIWESHE JA

HARARE: 10 OCTOBER 2022 & 17 NOVEMBER 2022

Ms R. Mabwe, for the appellant

K. Maeresera, for the first respondent

No appearance for the second respondent

MATHONSI JA:		This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 29 June 2022 which allowed the first respondent to amend his summons and declaration in a claim for an order confirming the validity of an agreement of sale between the parties.

The court holds that in terms of the rules of the court a quo, the court may, at any stage of the proceedings before judgment is delivered, allow a party to amend any pleading in any manner necessary for the purpose of placing the real issues in dispute between the parties.  The court holds further that, in granting the amendment, the court a quo was involved in the exercise of judicial discretion and it judicially exercised that discretion by allowing an amendment enabling the parties to ventilate the real controversy between them.

No prejudice would be suffered by the appellant as a result of the amendment.  The fact that the amendment, undertaken as a result of the appellant’s pointing out the defects in the first respondent’s pleadings, deprived the appellant the opportunity to defeat the claim by raising a special plea is not the kind of prejudice contemplated by the law.  It cannot weigh in the mind of the court.

The court holds the view that the filing of pleadings is not a game of draft where the “touch is a move” rule applies to such an extent that if a mistake is made then the forfeit is claimed.

Finally, the court holds that the issue of John Vhurumundu, the first respondent’s elder son, being included as one of the two sons represented by the first respondent in the action was not raised in the court a quo.  It did not relate to it and as such it cannot be raised for the first time on appeal.  Its practical effect is that there may be need for a further amendment and a joinder of John Vhurumundu, but that is not the subject of the present proceedings.

THE FACTS

The appellant and the first respondent entered into an agreement of sale in respect of what was then a vacant stand, being Stand Number 583 Charles Street Chegutu (“the stand”).  The agreement of sale signed on 5 June 2011 recorded that the purchasers were the first respondent and his two minor children duly represented by himself.  Certain terms and conditions were also recorded including the development of the stand.  It turns out that a dispute arose between the parties after the first respondent had effected improvements on the stand, when the appellant came up with yet another agreement dated 30 October 2020 which contained different terms.  He sought to enforce it as the agreement of the parties.

The first respondent instituted summons action in the court a quo against the appellant for an order declaring the validity of the agreement of sale entered into on 15 June 2011 and the cancellation of the one dated 30 October 2020.  The claim was contested by the appellant who, after entering appearance to defend, filed a plea including special pleas of absence of jurisdiction, lis pendens, lack of locus standi and the non-joinder of the first respondent’s children in the suit.

On 9 July 2021 the first respondent filed a notice of amendment of the summons and declaration in response to the appellant’s plea.  The proposed amendment sought to add the first respondent as the plaintiff in his personal capacity and as a representative of his two children in his capacity as their father and natural guardian.  The appellant would have none of it.  In a long winding notice of intention to oppose the amendment, the appellant bemourned the first respondent’s design to defeat his special pleas.

Meanwhile the rules of the court a quo were repealed and the High Court Rules, 2021 came into effect.  They contain a new procedure for amendments in r 41.  The first respondent reacted by filing a second notice of intention to amend the summons and declaration in compliance with the new rules of the court a quo.  The appellant again filed an objection to the proposed amendment complaining bitterly that, save for reference to r 42, the second notice was a replica of the first.

PROCEEDINGS BEFORE THE COURT A QUO

As a result, the first respondent filed an application for leave to amend the summons and declaration in the court a quo.  The application was opposed by the appellant.  The basis for his opposition, in the main, was that the amendment addressed issues he had raised in his special plea as a result of which the amendment would defeat his case.  The amendment would deprive him an opportunity to have the first respondent’s claim dismissed on the basis of the special plea.

For his part, the first respondent asserted that the special pleas had not been prosecuted, they were not set down for argument and as such it was within his rights to seek an amendment to rectify the anomaly complained of by the appellant.  The court a quo was therefor called upon to determine whether or not to grant the application for amendment.

Observing that r 41 of the High Court Rules, 2021 provides for alteration and amendment of pleadings before judgment, the court a quo found that the first respondent was entitled to amend his pleadings.  It found that no prejudice would be suffered by the appellant were the amendment to be granted.  In the court a quo’s view, the proposed amendments would enable the parties to ventilate all the issues raised in the main action.

In exercising its discretion, the court a quo took into account the relevance of the notice of amendment and that the amendments themselves were clear and straight forward.  To that extent there was no need to withdraw the summons as urged by the appellant.  The application was granted.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved.  He noted an appeal to this Court on the following grounds:

“1.	The High Court erred at law in allowing an amendment whose effect was to:

add additional parties to the suit under HC 2843/21 in the absence of a legal basis for doing so.

add parties to the suit before it whose existence was specifically challenged by the appellant and not proved by the first respondent.

The court a quo erred and misdirected itself in granting an amendment:

that further complicated the matter under HC 2843/21 as opposed to defining

the issues.

that clearly prejudiced the appellant’s defence in the main summons matter.

The court a quo further misdirected itself at law by allowing a futile amendment to

a meritless case that could not found a basis for relied (sic) under s 14 of the High Court Act [Chapter 7:06].

The court a quo erred in granting relief not sought before it by ordering an

amendment to the summons under HC 2843/21, which had not been sought before it.”

The four grounds of appeal are repetitive because they raise just one issue for consideration.  It is whether the court a quo erred at law in granting the application for leave to amend the summons and declaration.  Rule 44(1) of this Court’s rules requires that grounds of appeal be set fourth clearly and concisely.  I will therefore proceed to relate to the appeal on the basis of that single issue.

Ms Mabwe, who appeared for the appellant, submitted that the court a quo misdirected itself in granting an amendment which is vague and embarrassing.  In her view, the amendment to the summons does not tally with that in the declaration as the relief contained in the summons is different from that in the declaration. She did not elaborate.

Counsel for the appellant raised a new issue not placed before the court a quo, namely that John Vhurumundu, one of the first respondent’s sons sought to be included in the suit, had attained majority status.  He could not, so it was argued, be represented by his father as he now has full legal capacity.  She submitted that although the issue was not taken a quo, it is perfectly in order to raise if for the first time on appeal it being a point of law.

Ms Mabwe concluded by saying that the court a quo ought to have considered the effect, nature and import of the amendment sought by the first respondent.  In her view, the first respondent should simply withdraw the claim and start afresh because the summons and declaration, in their present form, are susceptible to exception.  As to why the appellant did not file an exception instead of pursuing the appeal, counsel would not say.

Per contra, Mr Maeresera for the first respondent disputed the claim that the relief sought in the summons was different from the one in the declaration.  He asserted that both pleadings spoke of the same thing.  In his view, if indeed there were such defects, the appellant’s remedy was to file an exception in the court a quo and not proceed by way of an appeal.

Regarding the point of law taken for the first time on appeal, Mr Maeresera submitted that the issue was only relevant to the extent that it affected John Vhurumundu and not the rest of the amendments.  The issue cannot, he argued, be used to defeat the entire amendment.  He also bemourned the belated inclusion of that issue on appeal when it was never placed before the court a quo whose judgment is being impugned.

THE LAW

The High Court Rules, 2021 have introduced a new system of effecting amendments to pleadings which require a party intending to amend a pleading to give notice of intention to amend.  The other party is required to also file an objection to the proposed amendment, if it so wishes, within a prescribed period of time.  Once an objection is made, the party intending to amend a pleading should file a formal application to the court a quo for leave to amend.

What the court may do upon such application being made is provided for in r 41 which reads:

“The court or a Judge may, notwithstanding anything to the contrary in this rule, at any stage of the proceedings before judgment, allow either party to alter or amend any pleading or document, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

Clearly the court is at liberty to allow the amendment of pleadings before judgment is delivered as may be just and as may assist in bringing to the fore the real issues for determination.  When considering an application for leave to amend a pleading the court exercises a discretion.

The modern approach in this jurisdiction is to lean in favour of allowing all amendments which are necessary for the parties to ventilate the issues and to achieve justice.  This Court underscored that approach in Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 159 D-E where it stated:

“The main aim and object of allowing an amendment to pleadings is to do justice to the parties by deciding the real issues between them.  The mistake or neglect of one of the parties in the process of placing issues before the court and on record will not stand in the way of this unless the prejudice caused to the other party cannot be compensated for in an award of costs.”

As I have said the granting or refusal of an application for amendment is a matter for the discretion of the court which discretion is exercised in a judicial way considering the circumstances of the case.  See UDC Ltd v Shamva Flora (Pvt) Ltd 2000(2) ZLR 210 (H) at 216 D.

While the court is required to have regard to the prejudice likely to be visited upon the other party if the amendment is granted, such prejudice may be compensated by an award of costs where appropriate.

The point was made by this Court in Copper Trading Co (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S) at 143 H – 144 B and G that:

“It is paramount that the discretion reposed in the court in respect of amendments be exercised in a manner which allows the issue between the parties to be fairly tried.  The fact that the amendment might lead to the defeat of the other party is not the kind of prejudice which should weigh with the court: GMF Kontrakteurs (Edms) Bpk & Anor v Pretoria city Council 1978 (2) SA 219 (T) at 222 C-F.

Where a lower court has exercised a discretion, an appellate court will not lightly interfere with such exercise.  It will only do so where it is shown that the lower court committed a gross irregularity or misdirection in the exercise of its discretion.  The often cited case of Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62 G – H and 63A is apposite:

“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account (some) relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always (it) has materials for doing so.  In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

SYNTHESIS

On its way to granting the amendment the court a quo stated at p 3 of its judgment:

“I have taken cognisance of the fact that humans are fallible.  Mistakes and errors though not encouraged are common to litigants and (in) some cases the adjudicating officer.  That is why there are rules of court designed for the correction of such mistakes and exigencies.”

The court a quo also took into account that no prejudice would be suffered by the appellant by the grant of the amendment and that the amendments were necessary for the parties to ventilate all the issues.  Indeed the amendments do not cause inconvenience to the court and they do not prejudice the appellant but for depriving him the opportunity to successfully pursue his special plea.  The authorities I have cited make it clear that such prejudice should not weigh with the court.

I hold the view that the court a quo cannot be faulted for exercising its discretion in favour of granting the amendments.  The grounds of appeal upon which the appeal was motivated do not even begin to set out a case for interference with judicial discretion as required by the law.  All the grounds of appeal ought to fail.

It may have been upon a realisation that the grounds of appeal could not be sustained that Ms Mabwe for the appellant sought to introduce the issue of the majority status of John Vhurumundu for the first time on appeal.  However, this Court is not a court of first instance.  As was stated in Kearns v Walter Enterprises SC 190/90:

“In the circumstances we do not wish to set a precedent for litigants to treat the Supreme Court as a second court of first instance, a court in which they can try out the issues again on fresh facts if the first set proved to be inadequate.”

While Ms Mabwe was correct to state that a point of law may be raised at any stage even on appeal, there is really no magic in that principle.  Certain conditions still have to be met before that can be done.  For instance, the point of law sought to be raised should have been pleaded and must appear ex facie the record.  In addition, raising it for the first time on appeal should not cause prejudice to the other party.

I am of the view that the conditions for reliance on a point of law have not been satisfied.  I am fortified in that position by the fact that all the grounds of appeal are spectacularly without merit and no serious effort was made to motivate the appeal on any of them.  Effectively, counsel sought to motivate the appeal almost entirely on a point of law that the court a quo, whose judgment is sought to be impugned, did not relate to at all.  The appellant cannot be allowed to do so.

In any event, even if indeed John Vhurumundu has since become a major, that is an issue that can still be rectified in the court a quo either by a further amendment or an application for his joinder as a stand-alone party in the proceedings.

DISPOSITION

The granting or refusal of leave to amend a pleading is a matter for the discretion of the court.  In granting the amendment, the court a quo properly exercised its discretion.  No basis for interference with that discretion was established on appeal.

The issue of John Vhurumundu having attained majority status is one which could not be raised on appeal it not having been placed before the court a quo.  There is no basis for bringing it belatedly on appeal.

Regarding the issue of costs, the appeal has no merit.  I find no reason whatsoever for departing from the usual stance that costs follow the result.

Accordingly it is ordered as follows:

The appeal is dismissed with costs

UCHENA JA:				I agree

CHIWESHE JA:			I agree

Hamunakwadi & Nyandoro Law Chambers, appellant’s legal practitioners.

Chizengeya Maeresera & Chikumba, 1st respondent’s legal practitioners.