Arrola Tendai Takundwa Idehen and Others v Cecilia Kashumba and Another

The fourth plaintiff (mother to the first three plaintiffs) held title to properties known as stand numbers 552 and 553 Quinnington Township Borrowdale Estate. In 1999, she sold the property to Dzingai Kashumba who allegedly breached the agreement. She cancelled the agreement, which Dzingai disputed, resulting in protracted litigation. Under HC 10065/00, Dzingai was granted leave to remedy the breach and title transferred to him. After Dzingai's death, the first defendant was appointed executrix dative of his estate and sold stand 552 to the second defendant, who built three double storey houses. The fourth plaintiff appealed the earlier judgment. Under SC 18/18, the Supreme Court confirmed cancellation of the agreement and reversed all transfers, restoring title to the fourth plaintiff, who had donated the property to the first, second and third plaintiffs in 2003. The plaintiffs sued both defendants claiming US$402,000 being the excess costs they would pay for constructing 3 villas, alleging they could have built them in 2006 at US$50,000 per unit but due to the defendants' unlawful occupation, each villa would now cost US$184,000. The second defendant excepted to the summons and pleaded prescription.

• Whether the summons disclosed a cause of action
• Whether the declaration disclosed a recognizable cause of action against the second defendant
• Whether there was a causal link between the second defendant's conduct and the plaintiffs' alleged damages
• Whether the claim was prescribed
• Whether the pleadings complied with the requirements of Order 3 Rule 11 of the High Court Rules

The exception to the summons was upheld. The plaintiffs were ordered to pay the costs of the exception.

A valid summons must contain a true and concise statement of the nature, extent and grounds of the cause of action, not merely the relief sought. In delictual claims, there must exist a causal element linking the defendant's conduct to the damages claimed - the defendant must be the direct cause or by some alleged nexus be the proximate cause of the damages. A plaintiff must have locus standi (legal standing) at the time the cause of action arose. In claims for prospective damages involving non-realization of future profits or increased future expenses, there must be a temporal nexus showing how the defendant's wrongful conduct at a specific time caused the inability to realize those profits or avoid those expenses. The factual situation alleged must entitle the plaintiff to obtain a remedy against the specific defendant sued.

The court made observations about the need for evidence when prescription is disputed, noting that on the authority of Brooker v Mudhanda & Anor 2018 (1) ZLR 33(S), where prescription is disputed the court must hear evidence to properly determine the issue. The court noted that in this case evidence would have been necessary as parties were not agreed on when the cause of action arose and the plaintiffs raised the issue of COVID-19 lockdown Practice Directions extending prescription periods. However, the court decided not to order evidence as its findings on the exception made it unnecessary. The court also observed that the declaration was "a dog's breakfast" - a mixed bag of averments throwing in everything for the court to process. The court condoned procedural irregularities in the filing of heads of argument and setting down under Rule 7(a) of the Rules 2021 in the interest of justice where no prejudice was alleged or established.

This case is significant for establishing principles regarding pleadings in civil matters, particularly: (1) the strict requirement that summons must contain a true and concise statement of the nature, extent and grounds of the cause of action; (2) the necessity of establishing a causal nexus between the defendant's conduct and the damages claimed, particularly in delictual actions; (3) the requirement that plaintiffs must have locus standi at the time the cause of action allegedly arose; (4) the temporal element in claims for prospective damages and how the timing of alleged wrongful conduct must align with the period when damages were allegedly suffered; and (5) the principle that pleadings must identify the branch of law under which the claim is brought and contain the necessary averments for that particular action.