Ndiweni v Mlangeni and Anor (HC 1975 of 2002; HC 972 of 2002; XREF HC 1975 of 2002) [2004] ZWBHC 107 (1 September 2004)

Judgment No. HB 107/04 Case No. HC 3312/00 X-Ref HC 1975/02, HC 972/02 LIVISON NDIWENI Versus WILLING MLANGENI And THE DEPUTY SHERIFF IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 30 JUNE & 2 SEPTEMBER 2004 S S Mlaudzi for plaintiff (respondent in this application) N Mazibuko for defendant (applicant in this application) Point in limine NDOU J: At the commencement of the trial the 1st defendant raised a point in limine. The basis of the application is that at the time of the issuance of the summons there was no cause of action. Briefly, the parties entered into a contract of sale which is a conditional one, with express term that the sale is subject to the approval of Council – Mukarati v Mkumbu 1996(1) ZLR 212 (S). The plaintiff issued summons before such Council approval was obtained. At that stage the plaintiff did not have the cause of action to issue the summons. The summons were issued on 10 October 2000 and the approval of Council was only granted on 29 May 2001. At that stage the 1st defendant had entered appearance to defend, sought and obtained further particulars and sought and obtained further and better particulars. In other words, the 1st defendant had taken some further step in the cause with the knowledge of the irregularity or impropriety. After taking further steps whilst concious of the irregularity or impropriety is the 1st defendant still entitled to make such an application? Unlike in South Africa, we do not have a rule that specifically says he is HB 107/04 not entitled to make such application. It is possible, however, for this court to exercise its inherent jurisdiction in such a matter in pursuit of justice. In my view, therefore, an aggrieved party forfeits his right to have the offending step or proceedings set aside if he has taken any further step in the cause with the knowledge of the irregularity or the impropriety. The irregularities contemplated in this principle are those of form and do not relate to matters of substance e.g. that a summons does not disclose a cause of action as is the case here – Singh v Vorkel 1947(3) SA 400(C) at 406. The aggrieved party should not delay until the trial in bringing such an application Hanson, Tomkin and Finkelstein v D B N Investments (Pty) Ltd 1951(3) SA 769 (N). What the 1st defendant has done is to resort to an alternative to pleading to merits. Order 21 Rules 137-9 were not followed by the 1st defendant. When the decisions in Mukarati v Mkumbu, supra, Hundah v Mwauro 1993(2) ZLR 401 (S); Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S) and Pedzisai v Chikonyora 1992(2) ZLR 445(S) were highlighted the plaintiff chose not to seek amendment of his pleadings. The plaintiff could have resorted to order 20 rule 134 which deals with the amendment of summons or declaration: cause of action arising after the issue of summons. Under rule 134 the court will be prepared to grant any amendment to bring before it an issue upon which a plaintiff has any prospect of success, provided no injustice is done to the defendant which cannot be remedied by an order as to costs or postponement – Horne v Hine 1974(4) SA 757 (SR); Moolman v Estate Moolman & Anor 1927 CPD 27 and Frenkel, Wise & Co Ltd, Cuthbert 1947(4) SA 715(C). In HB 107/04 Trans-African Insurance Co. Ltd v Maluleka 1956(2) SA 273 (AD) at 278 SCHREINER JA said- “No doubt parties and their legal advisers should not be encouraged to become slack in the observance of the rules, which are an important element in the machinery for the administration of justice. But on the other hand technical objecting to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditions and, if possible, inexpensive decisions of the cases on their real merits.” With this in mind, in appropriate cases and in order to determine the real issues between the parties the court may permit a new cause of action to be introduced by way of amendment – Myers v Abramson 1951(3) SA 438(C) and Morgan Ramsay v Cornelius and Anor 31 NLR 262 at 265. In casu, however, this cannot be done because no cause of action existed at all at the time when summons was issued. The general rule is that if a plaintiff wishes to institute action he must have a cause of action which must subsist when the summons is issued – Holford v Mentis 1938 WLD 239 and Druckman v Seligson 1922 TPD 254. By amending the summons in casu, the amendment will change or add to it, an action into an action of a substantially different character which would more conveniently be subject to a fresh action – proviso to rule 134 (4). In the circumstances, even if the application for amendment of the cause of action had been properly made, it would still fall foul of rule 134. In the circumstances the only course open is for the action to commence afresh. Accordingly, I grant the application in limine and dismiss the plaintiff’s action with costs. Samp Mlaudzi & Partners plaintiff’s legal practitioners Calderwood, Bryce Hendrie & Partners 1st defendant’s legal practitioners