Fawcett Security Operations (Private) Limited v Commercial Bank of Zimbabwe Limited and Zimbabwe Express Airlines (Private) Limited

The first respondent (the Bank) and the appellant (Fawcetts) entered into a Security Carriage Service Agreement whereby Fawcetts was to collect a locked and sealed cash box containing foreign currency and travellers cheques from the Bank's premises in Victoria Falls, deliver it to Victoria Falls Airport for consignment to Harare, then collect the box at Harare International Airport and deliver it to the Bank's premises in Harare. Fawcetts collected the cash box from the Bank's Victoria Falls premises and handed it to the second respondent (ZEX) for air transmission to Harare. The ZEX aircraft arrived at Harare Airport at 4:30 pm but Fawcetts' employees only arrived to collect it at 8:30 pm, by which time the cash box was missing. The Bank sued both Fawcetts and ZEX jointly and severally for damages. Fawcetts filed an exception to the Declaration on the grounds that there were insufficient allegations to support the claims based on breach of contract or liability as a public carrier, and that the claim for joint and several liability was vague and embarrassing. The High Court dismissed the exception, and Fawcetts appealed.

• Whether the Declaration contained sufficient averments to support a claim for breach of contract against Fawcetts
• Whether the Declaration contained sufficient averments to support a claim based on absolute liability as a public carrier against Fawcetts
• Whether the claim for joint and several liability against both Fawcetts and ZEX was properly pleaded and supported by the allegations in the Declaration
• Whether a party can rely on contractual terms not specifically pleaded in the Declaration

The appeal was allowed with costs. The order of the court a quo was altered to read: (1) The exceptions are upheld; (2) The plaintiff is given leave to amend its declaration within 10 days of the date of this order; (3) The costs of the exception shall be borne by the plaintiff.

A party cannot rely on contractual terms not specifically pleaded in its Declaration - the purpose of pleading is to clarify the issues between the parties and a pleader cannot direct the attention of the other party to one issue and then, at trial, attempt to canvass another. A claim for joint and several liability must be supported by compatible allegations - where claims against different defendants are mutually destructive (i.e., success against one would necessarily absolve the other), joint and several liability is not properly pleaded. A Declaration must contain all essential averments necessary to found the cause of action pleaded, and defendants are entitled to know what relief is claimed on what cause of action to properly prepare their defense.

The Court observed that attaching the agreement to the Declaration, though not an elegant pleading, would nevertheless ordinarily be sufficient to enable a defendant to plead. The Court also noted that a reading of clause 1 of the Standard Conditions would appear to support the submission that Fawcetts' obligation was contemplated to be a continuing one up to delivery at the Bank's Harare premises, but emphasized this was not the clause that was pleaded. The Court did not press the issue of joinder in terms of Rule 85 of the Rules of the High Court when the matter was conceded by the appellant's counsel.

This case is significant in Zimbabwean civil procedure law (applicable to South African procedural law principles as well) for establishing important principles regarding the specificity required in pleadings, particularly in contract claims. It reinforces the fundamental rule that a party cannot rely on contractual terms not specifically pleaded in its Declaration, and that pleadings must direct the opposing party's attention to the actual issues to be canvassed at trial. The case also clarifies the requirements for pleading joint and several liability, holding that such claims must be supported by compatible allegations rather than mutually destructive claims. It emphasizes the principle that defendants are entitled to know clearly what relief is claimed on what cause of action to avoid embarrassment in preparing their defense.