Clever Gaha v Local Authorities Pension Fund and City of Harare

The plaintiff was employed full-time by the second defendant (City of Harare) until he retired on 30 June 2014. Upon retirement, he became entitled to pension benefits from the first defendant (Local Authorities Pension Fund). After waiting almost a year, the first defendant wrote to the plaintiff on 10 December 2015, confirming pension benefits owed totaling $33,951.09, comprising a one-third commutation lump sum of $28,935.89 and pension arrears of $5,015.20, plus monthly pension of $501.52. The plaintiff received only $10,278.10, leaving $18,657.79 outstanding from the lump sum, plus accumulated pension arrears of $17,051.68 as at May 2017, totaling $35,709.47. The first defendant pleaded that the second defendant had failed to remit the amounts due, save for $10,278.10 which was paid to the plaintiff. The second defendant admitted falling into arrears but denied owing the plaintiff anything, without providing supporting figures or documentation.

• Whether the second defendant's defence was properly pleaded with sufficient particularity
• Whether the court could strike out a defence for non-compliance with directions issued at a pre-trial conference
• Whether the second defendant was liable for unpaid pension benefits to the plaintiff
• The application of Order 26 Rule 182(11) regarding compliance with pre-trial directions

The second defendant's defence was struck out. Judgment was granted in favour of the plaintiff as prayed for in his declaration against the second defendant for payment of outstanding pension benefits totaling $35,709.47, plus future monthly pension payments due within the guaranteed seven-year period.

Where a defendant pleads that it has made payment discharging its obligations to a plaintiff but fails to comply with court directions issued under Order 26 Rule 182 to produce documentary proof of such payment (receipts), the court is entitled to strike out the defence under Order 26 Rule 182(11)(a) and (b) for non-compliance with pre-trial directions. A plea that amounts to a bare denial without substantiation or supporting figures, particularly regarding payment, is excipiable for lack of substance. Non-compliance with specific court directions at a pre-trial conference justifies the striking out of a defence and the granting of judgment as prayed.

The court noted that the second defendant's plea was excipiable for lack of substance to the extent that it was a bare denial. Mushore J observed that his line of enquiry regarding receipts was aimed at ascertaining what amounts, if any, may be due and owing to the plaintiff so that the matter could be resolved and brought to finality, demonstrating the court's desire to facilitate settlement where possible. The court also noted that the second defendant's counsel failed to communicate with the court regarding any difficulty he may have been encountering in procuring the receipts, suggesting that such communication might have been viewed more favorably than complete silence and non-compliance.

This case demonstrates the Zimbabwean High Court's willingness to enforce compliance with pre-trial directions and to strike out defences that amount to bare denials without substantiation. It reinforces the importance of parties complying with court orders and directions during pre-trial proceedings. The case also highlights the duty of employers and pension funds to fulfill their obligations to retired employees regarding pension benefits. It illustrates the consequences of failing to provide documentary evidence when pleading payment as a defence, and the court's power under Order 26 Rule 182(11) to sanction non-compliance with pre-trial conference directions by striking out pleadings.