Winsley Evans Militala N.O. (In his capacity as the Judicial Manager of Matufu Investments (Private) Limited t/a Precision Grinders) v Security Partners (Private) Limited

The plaintiff, as judicial manager of Matufu Investments, issued summons against the defendant on 9 July 2020 claiming termination of a lease agreement, ejectment from premises at 55 Craster Road, Southerton, Harare, holding over damages, and arrear rentals. The plaintiff and defendant had entered into a lease agreement on 1 January 2015 for a three-year period terminating on 31 December 2018. The defendant remained in occupation after expiry, becoming a statutory tenant from 1 January 2019, and accumulated rental arrears of $6,076.72 as at 31 May 2019. Despite notice to vacate by 30 September 2019, the defendant failed to do so. The defendant's legal practitioners wrote to the plaintiff on 29 July 2020 pointing out defects in the summons and requesting withdrawal. When this was not done, the defendant filed an exception on 3 August 2020, alleging the summons did not disclose a cause of action, was vague and embarrassing, and did not comply with Commercial Court Rules.

• Whether a summons that fails to disclose a cause of action as required by Order 3 Rule 11(c) can be cured by an accompanying declaration filed simultaneously
• Whether the defects in the summons were fatal or capable of being remedied
• Whether the plaintiff's summons complied with the mandatory requirements of Order 3 Rule 11(c) requiring a true and concise statement of the nature, extent and grounds of the cause of action
• Whether costs on an attorney and client scale were justified in the circumstances

1. The defendant's exception was upheld. 2. The plaintiff was ordered to amend his summons within ten days of service of the order, failing which the defendant shall be entitled to approach the court for dismissal of the plaintiff's claim. 3. The plaintiff was ordered to pay the defendant's costs of suit on a legal practitioner and client scale.

A summons that fails to comply with Order 3 Rule 11(c) by not containing a true and concise statement of the nature, extent and grounds of the cause of action is defective. While such defects may in certain circumstances be cured by an accompanying declaration filed simultaneously (particularly in cases involving liquidated debts where particulars of claim can substitute for a declaration under Order 3 Rule 13), this does not provide a carte blanche solution to all defective summons. The principle in Mutyasira v Estate of the Late Muchineripi Rishoni Gonyora must not be misapplied to render Rule 11(c) nugatory. Where defects in a summons are brought to a plaintiff's attention and the plaintiff fails to remedy them, the court will uphold an exception but may grant leave to amend. Each case must be considered on its own merits, and courts will not permit systematic disregard of mandatory pleading rules.

The court commented on the status of the High Court (Commercial Division) Rules, 2020 (SI 123 of 2020), noting they were never operationalized as the Commercial Division had not been officially commissioned at the time, and their operation was officially suspended through the High Court (Commercial Division) (Amendment) Rules, 2020 (No.1). The court also observed that costs on an attorney and client scale, while punitive and only awardable in exceptional circumstances, are justified where a party's conduct demonstrates intransigence and unnecessarily puts the opposing party out of pocket, even absent malice or intent to mislead the court - vexatious effect being sufficient without vexatious intent.

This case clarifies the application of Order 3 Rule 11(c) of the High Court Rules regarding the requirement for a summons to contain a true and concise statement of the nature, extent and grounds of the cause of action. It establishes that while defects in a summons may be supplemented by an accompanying declaration in certain circumstances, this does not permit litigants to systematically ignore mandatory pleading requirements. The judgment emphasizes that each case must be considered on its own merits and that courts will not allow the Mutyasira principle to be used as a blanket excuse for non-compliance with pleading rules. The case also demonstrates the court's willingness to award punitive costs on an attorney and client scale where legal practitioners ignore legitimate complaints about defective pleadings and unnecessarily put the opposing party to expense.