Mbalabala Properties (Private) Limited v Jimmy Gazi

This was an application to compel the supply of further particulars to the plaintiff's summons and declaration. The plaintiff had brought a claim based on an agreement allegedly entered into between the parties. In the declaration, plaintiff averred that an agreement was entered into with obligations on both sides, that plaintiff performed its obligations (which included paying tuition fees for the late Nkala's daughters at Solusi University, delivering a Nissan Terrano vehicle, delivering 30 head of cattle, 16 sheep, and paying GBP 2000 and ZAR 30,000), and that the defendant failed to perform his part. An acknowledgement of debt was also referenced. The defendant sought extensive particulars regarding the manner, timing, and details of how the plaintiff allegedly performed each of its obligations under the agreement.

• Whether the particulars requested by the defendant were necessary to enable the defendant to plead to the plaintiff's claim
• Whether questions seeking details about the manner and timing of performance of contractual obligations constitute matters of evidence rather than necessary pleading particulars
• What standard must an applicant meet when requesting further particulars - must they show embarrassment or inability to plead without such particulars
• Whether particulars can be requested for precision and clarity beyond what is strictly necessary to plead

1) Plaintiff ordered to supply the names of the Nkala daughters whose school fees were paid by him at Solusi University. 2) Plaintiff ordered to supply the total sums in tuition fees and other charges paid on behalf of the Nkala daughters at Solusi University. 3) The rest of the particulars sought were held not necessary to enable the defendant to plead and no order was granted with regard thereto. 4) Costs ordered to be in the cause.

The binding legal principle is that when requesting further particulars, an applicant must show: (1) that the particulars are necessary to enable it to plead; (2) that without such particulars the applicant will be embarrassed in attempting to plead; and (3) the applicant must make plain the precise embarrassment alleged. Particulars relating to the manner of performance of contractual obligations (when and how obligations were performed) are evidential in nature and not necessary to enable a defendant to plead. However, particulars may properly be requested for precision and clarity even if not strictly necessary for pleading, where such information is essential to understand core elements of the claim such as identifying specific beneficiaries of performance or quantifying the extent of alleged performance.

The court observed that the defendant's request for information already provided in the declaration (whether plaintiff performed its obligations when this was already averred in paragraph 5) reflected poorly on whether the defendant had properly applied its mind to which particulars were genuinely absent but necessary for pleading. The court noted this conduct suggested the defendant was engaging in "inquisitorial forays" similar to the applicant in Carlo Franchi v Dixon A Mohammed, rather than genuinely seeking necessary information to formulate a defense. The court also commented that whether a request for further particulars is justified varies from case to case depending on the particular facts.

This case is significant in Zimbabwean civil procedure for clarifying the test for when further particulars must be supplied. It reinforces the principle that an applicant seeking further particulars must demonstrate that they are necessary to plead and that the applicant would be embarrassed in attempting to plead without them. The judgment distinguishes between particulars necessary for pleading versus evidential matters relating to manner of performance. It also recognizes that particulars may be required not just for pleading but also for precision and clarity of the claim. The case provides guidance on what constitutes unnecessary or 'fishing' requests for particulars versus legitimate requests for clarification of essential elements of a claim.