Dohne Construction (Pvt) Ltd v Unki Mines (Pvt) Ltd

The plaintiff and defendant entered into a construction contract whereby the plaintiff was obliged to carry out certain construction work. A dispute arose between the parties and was submitted to an adjudicator for resolution. The adjudicator handed down his decision on 11 December 2011. The defendant did not comply with the adjudicator's decision. The plaintiff approached the court seeking enforcement of the adjudicator's decision, including: (a) compliance with certain paragraphs of the adjudicator's decision; (b) certification of amounts due; (c) payment of unspecified amounts together with interest; (d) a declaration that the contract remained valid; and (e) a declaration of entitlement to recover $412,201.11 together with VAT and interest. The defendant filed an exception to the summons on various grounds, primarily that the pleadings were vague and embarrassing and lacked necessary averments to sustain an action.

• Whether the plaintiff's summons and declaration were vague and embarrassing
• Whether the pleadings disclosed a cause of action
• Whether the plaintiff's pleadings complied with Rule 11 of the High Court Rules requiring a true and concise statement of the nature, extent and grounds of the cause of action
• Whether the court can make orders capable of enforcement where specific amounts and details are not pleaded
• Whether the plaintiff adequately pleaded the basis for enforcement of the adjudicator's decision

The exception was upheld. The plaintiff was given ten days to amend its pleadings. The plaintiff was ordered to pay costs of suit.

The binding legal principles established are: (1) Pleadings seeking enforcement of adjudicator's decisions must specify the exact amounts claimed and cannot leave such amounts to be calculated or determined later; (2) Courts will not make orders that cannot be legally and practically enforced; (3) For an exception based on vagueness and embarrassment to succeed, the excipient must prove both that the pleadings are not clear and concise to the extent that they are vague, and that the vagueness causes embarrassment to the prejudice of the excipient; (4) Pleadings must disclose a cause of action by pleading every fact which would be necessary to prove to support the right to judgment; (5) Where pleadings fail to specify material particulars such as amounts claimed and interest rates, they are vague and embarrassing and do not disclose a proper cause of action.

The court endorsed and cited with approval the observations of Makarau JP (as she then was) in Chitanda v Mutasa regarding the purpose of pleadings: that the purpose is not only to inform the other party of the precise nature of the claim but also to identify the branch of law under which the claim has been brought, and that different branches of law require different matters to be specifically pleaded. The court also made observations urging legal practitioners to read the law before drafting pleadings and emphasizing that litigation in the High Court is serious business and the standard of pleadings must reflect such seriousness. The court's decision to grant leave to amend rather than dismiss the claim outright reflects a judicial approach of providing parties opportunity to correct defective pleadings where possible.

This case is significant in Zimbabwean civil procedure law as it reinforces the strict requirements for pleadings, particularly in matters seeking to enforce adjudicator's decisions. It emphasizes that pleadings must be clear, precise, and specific, particularly regarding amounts claimed and relief sought. The case serves as a reminder to legal practitioners that courts will not make orders that are incapable of enforcement due to vagueness or lack of specificity. It underscores the importance of properly pleading a cause of action with all necessary averments and facts that would need to be proved. The judgment also illustrates the practical application of the test for vagueness and embarrassment in exceptions, requiring both lack of clarity and actual prejudice to the excipient.