On 30 April 2012, the first defendant (Old Mutual Zimbabwe Limited) allegedly entered into an agreement with the plaintiff for the sale of shares. According to the plaintiff, the shares vested on 30 June 2016, at which point the plaintiff became entitled to have 28,427 Old Mutual Zimbabwe shares transferred to him or to be paid their value in the sum of $23,310.14. The plaintiff alleged that the first defendant breached the agreement by failing to transfer the shares or pay their value. The plaintiff issued summons claiming specific performance. The plaintiff's declaration referred to 'Annexure A' (the agreement) but initially failed to attach it. When later furnished, the document provided as Annexure A was merely an advertising brochure, not the actual agreement. The first defendant filed an exception to the plaintiff's declaration, arguing it disclosed no cause of action and was vague and embarrassing because the brochure did not constitute an agreement of sale.
1. The exception was dismissed in its entirety. 2. The first defendant was ordered to pay the costs of suit.
The binding legal principles established are: (1) An agreement forming the basis of a claim constitutes evidence which need not be pleaded or produced at the initial pleading stage; a defendant does not require such evidence in order to plead to the claim. (2) A pleading will disclose a cause of action if it sets out the essential elements of the claim, including the existence of an agreement, its material terms, and the alleged breach - the physical attachment of the agreement is not necessary. (3) A pleading is not vague and embarrassing merely because a document attached in error does not correspond with the agreement described in the averments, where the essential terms and nature of the claim are clearly stated. (4) Before filing an exception, a party should comply with Rule 140(1)(b) by writing to the other party to seek amendment of the pleading, particularly where the defect is capable of simple rectification.
The court made non-binding observations that: (1) It would have been evident to any litigant that the brochure could not possibly be the agreement that was the subject of litigation and that it had been furnished in error. (2) The first defendant ought to have given notice by letter calling upon the plaintiff to rectify the error by furnishing the correct document rather than rushing to file an exception. (3) Rule 140(1), although cast in permissive terms, would save parties both costs and time if complied with. (4) It is invariably the practice of courts where an exception has been taken that the pleading discloses no cause of action to order that the pleading be set aside and the plaintiff be given leave to file an amended pleading. (5) The court will invariably order that which the parties could have done without recourse to it through pre-litigation correspondence.
This case reinforces important principles in Zimbabwean civil procedure regarding exceptions to pleadings. It emphasizes that: (1) courts should adopt a charitable interpretation of pleadings and not scrutinize them with excessive technical rigour; (2) evidence need not be pleaded or attached at the initial pleading stage - a party does not require sight of documentary evidence to plead; (3) litigants should comply with Rule 140(1)(b) and attempt to resolve pleading defects by correspondence before filing exceptions, as this saves costs and time; and (4) minor errors or omissions in pleadings that do not truly embarrass the other party or prevent them from understanding the case against them should not result in successful exceptions. The case demonstrates judicial reluctance to uphold technical exceptions where the essential cause of action is clearly pleaded.