Polybass Chemicals v Calasse (HC 1155 of 2015) [2015] ZWHHC 753 (23 September 2015)

1 HH 753/15 HC 1155/15 POLYBASS CHEMICALS versus SUE CALASSE HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 27 July 2015 and 23 September 2015 Opposed Matter Ms F. Mahere, for the plaintiff H. Jonhera, for the defendant MWAYERA J: The plaintiff, who is the excipient in this matter, sued the defendant for payment of $49 392-00 together with interest at the rate of 54% per annum payable within 30 days from date of invoice. The plaintiff in its declaration averred that in July 2014 the defendant purchased 80 drums of polyol, a polyurethane product amounting to 16 800 metric tonnes at an agreed price of $2 690-00 per metric tonne. The plaintiff sent the 80 drums of polyol and it was delivered to the defendant in August 2014. The plaintiff then raised an invoice for the goods and transport costs and submitted it to the defendant. The defendant, despite demand, failed or refused to pay hence the claim by the plaintiff. The defendant entered an appearance to defend and subsequent pleadings thereto. In the defendant’s plea, the defendant denied having purchased 16 800 metric tonnes of polyol from the plaintiff. She stated that she refused to pay the amount demanded by the plaintiff as she is not indebted to the plaintiff. The defendant’s plea in para 2 - 4 read: 2. 3. “Defendant denies that she purchased from the plaintiff 16 800 metric tonnes of Polyol from the plaintiff as alleged or at all and puts the plaintiff to the proof thereof Defendant admits that she has refused to pay the amount demanded by the Plaintiff as she is not indebted to the plaintiff in the sum claimed or at all. HH 753/15 HC 1155/15 4. To the extent that the plaintiff’s summons and declaration are inconsistent with the defendant’s plea, same is denied to the extent of such inconsistency and where necessary, the plaintiff is put to the strictest proof thereof.” It is to the defendant’s pleading that the plaintiff excepts and argues that the defendant’s plea lacks averments necessary to sustain a defence and that the plea is vague and embarrassing as it is devoid of particularity. I must point out that the plaintiff, as discerned from the declaration, is suing on a contract of sale for sale of 80 drums of polyol amounting to 16 800 metric tonnes whose value is the subject of claim. The defendant argued that the exception by the plaintiff is without legal basis. According to the defendant, the claim emanates from a contract of sale. The plaintiff claims payment of the sum of $49 392-06 for goods supplied and delivered to her by the plaintiff. (my emphasis) The defendant disputes the existence of such a contract and specifically pleads that she did not purchase the 16 800 metric tonnes of polyol. The defendant’s counsel argued that the defendant’s plea is clear and clearly puts a picture to the plaintiff of what to expect as a defence in court. The defendant argued that the plaintiff’s contention that the defendant’s plea is lacking in averments to sustain a defence to plaintiff’s claim is misplaced and the exception filed is abuse of court process. Just like in the plaintiff’s pleadings for a claim which ought to be clear and concise the defendant’s plea in defence ought to be clear and not vague so as not to take the other party by surprise in court. The case of TFS Management Company (Pvt) Ltd v Crespeak Investments (Pvt) Ltd and Anor HH 49/2005 is instructive. The remarks by Gowora J (as she then was) are pertinent. She stated clearly the requirements of a plea that: “A plea ought to set out each element constituting an allegation which it makes in sufficient detail to enable the other party both to understand it and to place on record a specific answer. When a defendant makes a positive allegation in denying the plaintiff’s claim, then the defendant is required to state the material facts upon which it seeks to reply on in his defence” In the present case one cannot read the defendant’s plea to be incomprehensible and lacking a specific and clear answer to the claim. The defendant has denied the purchase of 16 800 metric tonnes of polyol from the plaintiff. The denial of having purchased the 16 800 metric tonnes polyol is a specific denial of HH 753/15 HC 1155/15 the foundation of the plaintiff’s claim for payment of the purchase price of the polyol which forms the basis of the claim. The defendant’s plea is sufficient to enable the plaintiff to understand the nature of defence to expect. The claim is based on a contract of sale of 16 800 metric tonnes of polyol which contract is disputed by the defendant. It is important to understand the fact that when an exception is taken, the court has to consider whether or not there is a point of law to be decided which will dispose of the case wholly or in part. Also the court has to consider whether there is any embarrassment which cannot be cured by a request for further particulars. Whether the answer to these points of consideration is in the negative, that is where neither of the two exist, the exception must fail. In the present case there is no point of law raised which will lead to finalisation of this matter in part or wholly. The defendant’s plea is a clear denial of the very foundation of the plaintiff’s claim. There is no basis for alleging embarrassment as the defendant specifically denies buying the 16 800 metric tonnes of polyol. It has been said a countless number by these courts that a badly taken exception achieves nothing more than delay in finalisation of matters and increases the backlog of pending cases before the court. I subscribe to the sentiments echoed in the case of Kahn v Stuart 1942 CPD 386 where Davis J at p 391 stated that: “The courts should not look at pleadings with a magnifying glass of too high power. If it does so it will almost be bound to find flaws in most pleadings ... In my view it is the duty of the court when an exception is taken to a pleading, first to see if there is a point of law to be decided which will dispose of case in whole or in part. If there is not then it must see if there is any embarrassment which is real and such as cannot be met by asking of particulars ... And unless the excipient can satisfy the court that there is such a point of law of such real embarrassment, then the exception should be dismissed.” A pleading which makes a positive allegation in denying the plaintiff’s claim and states that the defendant did not purchase the substance which forms the basis of the claim cannot be expiable for it is a clear and understandable pleading. If the plaintiff required further details, the question that remains unanswered is why the plaintiff pursued the route of filing an exception which will not dispose of the matter in part or wholly as opposed seeking further particulars. The embarrassment complained of by the plaintiff has not been substantiated. The exception taken HH 753/15 HC 1155/15 cannot settle the case or part of it neither does it seek to protect the excipient from on embarrassment since there is no such embarrassment shown. The plaintiff, that is the excipient unjustifiably took the route of filing an exception and has to bear the costs. Accordingly the exception is hereby dismissed with costs. Coghlan, Welsh & Guest, plaintiff’s legal practitioners Wintertons, defendant’s legal practitioners