The plaintiff instituted proceedings against the defendants by way of summons. The summons was served together with what purported to be the plaintiff's declaration, to which was attached an "affidavit to prove damages". The second and third defendants were in fact the same person cited twice in the proceedings. The summons merely set out the amount being claimed and referred to "details as outlined in the attached affidavit" without disclosing a cause of action. The plaintiff's declaration was unintelligible, merely narrating certain unrelated events in a confusing manner without revealing any cause of action.
1. The affidavit attached to the plaintiff's summons and declaration is struck out. 2. The second and third defendants' exception to the plaintiff's declaration is upheld. 3. The plaintiff is given five days within which to file an amended summons and declaration. 4. Should the plaintiff fail to file the amended summons and declaration within the period given, the defendants are granted leave to file a chamber application on notice to the plaintiff for dismissal of the plaintiff's claim. 5. The plaintiff shall pay the costs.
1. Pleadings must contain a statement of material facts relied upon but not the evidence by which they are to be proved (Order 15 Rule 99). Affidavits containing evidence attached to pleadings are improperly before the court and must be struck out. 2. A summons and declaration must disclose a cause of action. When determining an exception based on non-disclosure of cause of action, only the summons and declaration are to be considered, without reference to other documents. 3. Where no cause of action is disclosed in the pleadings, a special plea of prescription cannot be determined as it is impossible to establish when such undisclosed cause of action arose. 4. The onus is on the excipient to satisfy the court that sound and adequate grounds exist for an exception to be upheld.
The court noted that the second and third defendants were in fact the same person cited twice in the proceedings, which represents a procedural irregularity. The court also observed that the plaintiff's declaration was not merely deficient but "unintelligible", narrating "certain events, some of which are not even related, in a manner that merely creates confusion." These observations highlight the severity of the pleading defects beyond the technical legal requirements.
This case is significant in Zimbabwean civil procedure (though not South African law as this is a Zimbabwean High Court judgment) as it reinforces fundamental principles regarding proper pleadings: that pleadings must contain material facts and not evidence, that a summons and declaration must disclose a cause of action, and that the onus is on the excipient to demonstrate grounds for an exception. It illustrates the consequences of defective pleadings and the court's approach to multiple procedural objections.