Zvikomborero Murahwi v Pam Golding Properties Zimbabwe

The plaintiff, an IT consultant based in South Africa, appointed the defendant, an estate agency firm, to sell his immovable property in Harare and remit the sale proceeds in US Dollars to South Africa. The property was sold for USD$190,000, but the funds were not transferred according to the plaintiff's instructions. The plaintiff issued summons on 15 October 2021 seeking a declaratur and alternative contractual damages based on USD$168,000. The defendant took exception and a special plea to the plaintiff's summons and declaration, alleging they were prolix, incoherent, failed to comply with High Court Rules 36(1)(d) and 13(1)(e), failed to set out material facts, did not support the USD claim when RTGS should apply by law, that the plaintiff was estopped from claiming damages having previously ratified the defendant's conduct, and that the claim had prescribed under section 14 of the Prescription Act as the cause of action arose on 28 August 2018.

• Whether the plaintiff's summons and declaration were excipiable for being prolix, incoherent, and non-compliant with High Court Rules
• Whether the plaintiff adequately pleaded the material facts and legal basis for claiming payment in United States Dollars
• Whether the plaintiff was estopped from claiming damages for breach of contract
• Whether the plaintiff's claim had prescribed under section 14 of the Prescription Act
• Whether the COVID-19 Chief Justice's Practice Directions interrupted prescription

The application for a special plea and exception was dismissed with costs.

An exception will only succeed where pleadings are so defective that no causa is identifiable. Where a cause of action is discernible from the pleadings, despite some inelegance or length, the exception will fail. The test is pragmatic: can the defendant understand the case it must meet? Courts will not impose an unrealistic standard of perfection. In currency claims, the plaintiff may plead the claim in the currency of the agreement, and the determination of the applicable currency regime based on the relevant statutory instruments and case law is a matter for trial, not for exception. The purpose of exceptions is to dispose of irreparably defective claims or relieve parties from responding to claims suffocated by prolix, not to engage in premature merits arguments.

The court expressed amazement at the vehemence and hyperbole in the defendant's exception, noting the irony that the exception itself was excessively lengthy and detailed in criticizing the plaintiff's pleadings for being too long. The court noted that unlike Commercial Court Rule 36(7) which sets a specific page limit for heads of argument, the High Court Rules 2021 do not set a length limit for declarations, making subjective quarrels about length more difficult to sustain. The court observed that the defendant's exception contained "vestiges of a commentary of the claim on the merits," suggesting it was addressing substance rather than form. The court also noted that the purpose of exceptions is to deliver convenience and pragmatism through speedy, cheap disposition of matters, and that courts have regularly chastised improper and insincere resort to exceptions.

This case is significant for its treatment of exceptions in Zimbabwean civil procedure, emphasizing a pragmatic approach over technical perfectionism in pleadings. It reinforces that the critical test is whether the causa is identifiable from the pleadings, not whether they achieve perfect concision. The judgment also contributes to the developing jurisprudence on currency claims in Zimbabwe, confirming that claims may be pleaded in foreign currency and that the applicable currency regime is a matter to be determined at trial based on the specific facts and the evolving statutory framework. The case serves as a reminder that exceptions should only be taken in appropriate circumstances and for the right reasons, and courts will not tolerate abuse of the exception procedure. It also addresses the impact of COVID-19 Practice Directions on prescription of claims.