Michael Hepker v Woncon Investments (Private) Limited and Others

The plaintiff (Michael Hepker) issued an endorsed summons accompanied by a declaration. The defendants (Woncon Investments (Private) Limited, Smith Chucks Okonkwo, and Virginia Dadirai) filed appearance to defend and subsequently requested further and better particulars, to which the plaintiff responded. The defendants then wrote to the plaintiff contending that the filing of a declaration was superfluous since the plaintiff had opted to file an endorsed summons, and intimated an intention to apply for striking out. When the plaintiff filed a notice to plead and intention to bar, the defendants filed an application to strike out the declaration. The defendants argued that the declaration was a repeat of the particulars of claim and was superfluous in light of Order 13 r 13(2), which provides that particulars of claim supersede the declaration. The application to strike out was filed in the form of a one-page statement rather than a proper court application.

• Whether the declaration filed by the plaintiff accompanying an endorsed summons was superfluous and should be struck out
• What is the proper procedural form for an application to strike out under the rules of court
• Whether an application to strike out must be made by way of court application in accordance with Order 32 r 226
• Whether prejudice must be shown by a party seeking to strike out pleadings

The application to strike out the declaration was dismissed with costs.

An application to strike out pleadings must be made in the form of a court application in accordance with Order 32 r 226 of the rules of court, and cannot be made by merely filing a statement. An application to strike out will not be granted unless the applicant demonstrates that it will be prejudiced in the conduct of its claim or defence. The filing of a declaration accompanying an endorsed summons, while technically superfluous under Order 13 r 13(2), will not be struck out where the respondent has failed to show prejudice in the conduct of the defence.

The court observed that if the plaintiff succeeded in his claim, he would be restricted to costs of preparation of the endorsed summons only, as the declaration was needlessly filed. The court noted that the fact that defendants might needlessly incur costs in pleading to the additional document is "neither here nor there" as this can be addressed through appropriate costs orders. The court also made general observations about the nature of exceptions and applications to strike out, citing South African authority that "exceptions and motions to strike out are alike in this: that neither does nor can introduce any fresh matter." The court further noted that ordinarily no answering affidavit can or will be filed in opposition to a motion to strike out, and any such affidavits would be irrelevant and inadmissible for the purpose of the application.

This case clarifies important procedural requirements in Zimbabwean civil litigation regarding applications to strike out pleadings. It establishes that such applications must comply with the general rules for court applications under Order 32 r 226 and cannot be made merely by filing a statement. The case also reinforces the principle that a party seeking to strike out pleadings must demonstrate prejudice in the conduct of their case. The judgment provides guidance on the interplay between specific procedural rules (such as those governing exceptions and striking out) and general application procedures, holding that the general rules in Order 32 apply unless specifically excluded. The case is also instructive on the consequences of filing superfluous documents - while technically irregular, such filings will not be struck out absent demonstrated prejudice, though the offending party may be restricted in recovering costs related to the unnecessary documents.