Vakakora Capital (Private) Limited v Associated Newspapers of Zimbabwe (Private) Limited t/a Daily News and Alpha Media Holdings (Private) Limited

In April 2011, the plaintiff secured a US$250 million loan from Crown Finance Corporation of Namibia to finance projects in Zimbabwe. On 6 May 2011, Crown Finance Corporation's legal practitioners wrote to the plaintiff indicating that the loan had been withdrawn and the signing ceremony cancelled. The decision to withdraw was influenced by reports of violence in Zimbabwe, specifically front-page articles published by the defendants on 5 May 2011 ('Violence Erupts Countrywide') and 6 May 2011 ('SADC Troika Directive Violated - Priorities Issue of Violence During Talks'). The plaintiff claimed these articles were false and/or published negligently, causing economic loss of US$50 million in expected earnings. The plaintiff issued summons on 14 October 2011. The second defendant excepted to the summons without first sending a letter of complaint as contemplated under Rule 140 of the High Court Rules 1971. The exception was filed on seven grounds, primarily arguing that the declaration failed to disclose a cause of action, did not plead wrongfulness, and did not show fault or foreseeability.

• Whether the declaration disclosed a cause of action for economic loss caused by allegedly false media publications
• Whether the declaration was vague and embarrassing
• Whether the plaintiff adequately pleaded wrongfulness, fault, and foreseeability
• Whether the exception was properly brought without first following Rule 140 of the High Court Rules (sending a letter of complaint)
• Whether formal defects in compliance with Rule 11 (regarding physical address) could sustain an exception
• Whether costs on a legal practitioner and client scale were warranted

The exception was dismissed. The excipient (second defendant) was ordered to pay costs on a legal practitioner and client scale.

A declaration will disclose a cause of action if it sets out adequate facts establishing the claim, even in cases involving economic loss. There is no requirement for special pleading in economic loss cases beyond the normal requirement to plead facts establishing wrongfulness, causation, and damages. An exception should only be sustained where the pleading contains a fatal point of law that will dispose of the case or creates real embarrassment that cannot be met by requesting particulars. Where a simple request for further particulars or compliance with Rule 140 (letter of complaint) would resolve concerns about a pleading, an exception is not the appropriate remedy. Formal defects in compliance with Rule 11 (physical address particulars) do not warrant nullification of summons or sustain an exception.

The court noted that it would not deal with the substantive law applicable to the relief sought (economic loss claims against media publications) as that was the duty of the trial court. The court observed that Rule 140 is not mandatory but suggested it should have been used in this case. The court commented that if the excipient was serious about ground 7 (regarding joinder), the rules allow for separation of trials, and this could not sustain an exception. The court made observations about the arrogant refusal of the excipient to withdraw the exception or follow proper procedure, which influenced the costs order.

This case is significant for establishing principles regarding the proper use of exceptions in Zimbabwean civil procedure. It emphasizes that exceptions should not be used to embarrass opponents where a request for further particulars or compliance with Rule 140 (letter of complaint) would suffice. The case affirms that formal defects regarding physical address particulars under Rule 11 cannot sustain an exception (following Pumpkin Construction). It also clarifies that there is no special pleading requirement for claims based on economic loss, and that adequate factual pleading establishing a cause of action is sufficient. The award of costs on a legal practitioner and client scale signals judicial disapproval of exceptions filed without proper basis when alternative procedural remedies were available.