UNIVERSITY OF ZIMBABWE FACULTY OF LAW

NAME ; EMMANUEL T. NHACHI .

REG NUMBER; R109791A .
COURSE ; CIVIL PROCEDURE LB20 .
LECTURER ; MR CHINHENGO .

ASSIGNMENT DUE 29 NOVEMBER 2012

(a) With reference to Zimbabwean case law in particular, discuss the function of pleadings with
emphasis on the fundamental principles which govern all pleadings (40)
(b) To illustrate some of the points in your discussion draw up a summons in which a plaintiff
claims $5000, 00 for wrongful imprisonment and a plea in which the defendant denies
liability of the delict.
Pleadings are documents in which the parties to a civil case describe their claim and defence
to the claim. The pleadings are set out in summary from the material facts on which the
parties rely to support their claim or defence to the claim. Pleadings have various functions
which shall be outlined bellow and there are also fundamental principles which govern all
pleadings which shall also be discussed bellow. This paper shall begin with the outline of the
functions of pleadings and later discuss the fundamental principles which govern all
pleadings. These functions and principles are drawn from a multifarious of Zimbabwean case
law.

Firstly, to define with clarity and precision the issues which are in dispute between the parties
and that are to be decided by the court. This helps because it enables the defendant to know
what case he has to answer. It was held in the case of Galante V Galante 1 '(the) object of
pleading is to define the issues; and parties will be kept strictly to their pleas where any
departure would cause prejudice or prevent full enquiry. Beck’s also put forward that, “the
object of the pleadings is to clarify the issues between the parties and a pleader cannot be
allowed to direct the attention of the other party to one issue and then at the trial attempt to
canvas on another. However within these limits the Court has a wide discretion, it was held in
the case of Zimbabwe Posts (Private) Limited v Zimbabwe Posts and Telecommunications
Union2 , that, “For pleadings are made for the court, and not the court for pleadings. Where a
party has had every facility to place all the facts before the trial court and the investigations
into all the circumstances has been as thorough and as patient as in this instance, there is no
justification for the interference by an appellate tribunal merely because the pleadings of the
opponent has not been as explicit as it might have been.” This means that he rules of
procedure are made for the courts to administer justice and in most cases where those rules do
not achieve the ends of justice then the court will diverge from them.

Secondly, pleadings are also there to assist the court in defining the limits of an action
brought before it. This includes limits as to the ambit and range of documentary discovery,
the ambit and range of oral examination for discovery and also to determine the range of
admissible evidence which the party is entitled to adduce at the trial. In this light it was held
in Matambanadzo Bus Service (Pvt) Ltd V Magner 3 that, “the cardinal rules in regard to
pleading should be properly observed, even in the magistrates' courts, and a trial should not
be allowed to become just a 'free for all' with a complete disregard of the issues as raised in
the pleadings. It was also stated in Becks that, “the object of pleadings is to define the issues
and parties will be kept strictly o their pleas where any departure would course prejudice or
would prevent full enquiry. But within those limits the court has a wide discretion for the
leadings are made for the courts and not the court for pleadings.” The same exception also
arises here and the courts hands are not tied to the pleadings made. The court may also allow
amendments to these pleadings as it was held in the case of DD Transport (Pvt) Ltd V Abbot
that, “Where an admission has been made in error, the court has E a very wide discretion to
relieve the party concerned from the consequences of that error by granting an amendment of
the pleading. Such an amendment will not be granted simply for the asking, for it is an
indulgence and not a right.” This shows that the court is not always bound within those limits
but can ran leave o extent them. .” It was also held in Musadzikwa V Minister of Home
Affairs & Anor 4 , that “while the court will strive to ensure that the parties are restricted to the

1
HH 31/ 2002
2
HH 15/ 2003
3
1972 (1) SA 198 (RA)
4
2000 (1) ZLR 405 (HC)
issues reflected in the pleadings, it will not enslave itself to the pleadings in complete
disregard of its duty to decide the real dispute between the parties. As long as there is no
likelihood of prejudice being occasioned to one or other of the parties, the court should not
lightly disregard a point which has been thoroughly investigated. The courts duty is towards
achieving justice and exception to the functions will be made to achieve that end.

Thirdly another function of pleadings is to provide a permanent record of the issues and
questions raised and to be decided in the action so as to prevent future litigation upon issues
already adjudicated upon between the parties or those persons privy to them, that’s where a
plea of res judicata can be used. As it was held in Edward Elio Galante V Ronnie Jacaranda
Galante 5 , quoting from Beck 6 , “one of the functions of pleadings 'is to place the issues raised
in the action on record so that when a judgment is given such judgment may be a bar to
parties litigating again on the same issues'. In motion proceedings the same issues appear
from the affidavits filed by the parties and are crystallized in the relief sought, such relief
being definitive of the essential issue(s) between the parties". This forms an important part of
the functions of pleadings in civil litigation. From all the functions of pleadings given is
noticeable that for the existence of procedural rules relating to pleadings there are good
practical reasons. However some of these rules are highly technical but the court has a wide
discretion to condone breach of technicalities prided that no prejudice is coursed to the other
parties.

Pleadings are also guided by the fundamental principles which govern all pleadings. The
locus classicus of these principles is Beck; he states that firstly, pleadings must be brief and
concise and couched in summary form. They should be as brief as brief as the nature of the
case will permit and all prolixity must be avoided a stated in Trust Merchant Bank ltd v.
Lewis Murodze Enterprises PL and Another 7 that “it is the duty of the legal practitioner to
avoid wastefulness and prolixity in litigation. ” The pleadings must be framed with distinct
paragraphs and so far as possible each paragraph should be limited to a distinct averment.
However it was stated by the same author Beck who sets the position as follows:- "Although
pleadings must be carefully drawn and be well turned out, the court ought not to read them
pedantically. The rules do not require that pleadings be drawn up in perfect language, but that
the allegations of the parties should be clearly cognisable. Thus the court will not hold that a
pleading is bad in law provided that such pleading shows the other party what the claim or
defense, as the case may be, is, with reasonable clarity even though there may be allegations
in such pleading which are unnecessary.” This shows that although they must be brief and
concise this must not be strictly done.

Secondly, pleadings should state the facts and the facts only. It was held In Hindoga V
Predictive Maintenance (Pvt) Ltd & Anor 8 from, page 36 of Beck 9 , accurately sums up the
position. It reads as follows: "The pleading of a legal proposition itself is no pleading at all.
But the rule means more than that; it implies that the facts must be set out and it is for the
court to say on a consideration of the facts proved in evidence whether they will or will not
support a particular conclusion in law." And also in Moyo and Another v Intermarket

5
HH 31/ 2002
th
6
Theory and Principles of Pleading in Civ il Actions5 ed at 32
7
1998 (2) ZLR 387
8
2000 (2) ZLR 109 (SC)
9
Theory and Principles of Pleading in Civ il Actions 5 ed
Discount House Ltd (71-05-01) Zimbabwe Legal Information Institute it was held that, “ As
a general and tried proposition pleadings are restricted to averments of factual matters and do
not afford the opportunity to a party to expound on the law or legal principles ” this shows
that the rules relating to pleadings require that a party pleads the facts on which his case is
based and not the law applicable or the evidence by which he intends to establish those facts.

Thirdly, the facts which it is necessary to allege in any pleading are the material facts only
and no others. The inclusion of any other facts is irrelevant and irrelevant facts are liable to
be deleted from a pleading. However the court can make exceptions, in Wolfenden V
Jackson10 it was held that, “Magistrates courts must adopt an indulgent and more liberal
attitude towards them as compared with pleadings in the High Court. The tendency is rather
to uphold their validity if at all possible and try to determine what the real issues are between
the parties.” Furthermore an exception to a pleading is not justified merely because it
contains some unnecessary words if those words do not embarrass the opposite party, and
where unnecessary matter is pleaded, the defendant is entitled to answer it in his plea.

Facts must be alleged with certainty and precision, this enables the other party to know what
case he has to meet. It is axiomatic that pleadings must set out the cause of action in clear and
concise language. In Tsvangirai V. Mugabe and Another11 “The importance of specific
pleading in these matters can be appreciated only if it is realized that the absence of a specific
plea puts the respondent at a great disadvantage. He must know what case he has to meet. He
cannot be kept guessing what the petitioner means.” It was also held in the case of Trust
Merchant Bank ltd v. Lewis Murodze Enterprises PL and Another supra that t is no
compliance with the rules of court, and is an affront to the court, to attach to the summons or
declaration lengthy and bulky statements of account containing masses of raw material which
require critical appraisal, collation and analysis. It is the duty of the legal practitioner to
reduce this information to a simple schedule or calculation. The egregious and excessive
attachment of documents is contrary to the rule against pleading evidence. It is a discourtesy
to the court and seeks to place on the court the function of preparation and quantification
which the legal practitioner expects to be paid for. Such pleading will not be tolerated, and
practitioners G should not be surprised to find themselves visited with the costs. The
plaintiff must state clearly and concisely on what facts he bases his claim and he must do so
with such exactness that the defendant will know the nature of .the facts which are to be
proved against him so that he may adequately rebut or disprove the plaintiff's allegations in
court.

Pleadings should contain no repetition, if repetition is necessary it must be done by way of

reference. This also supports the fact that the pleadings must be concise and also they must be
short. In setting out pleadings he last principle mentioned by Beck is that, when any arty
denies an allegation of fact in the previous pleading of the opposite party, he shall not do so
evasively but shall answer the point of substance. He defendant can only depart from this if
he sees that the summons is vague and embarrassing and he files an exception. The bottom
line is that every pleading must be set out to enable the other party to know what case he has
to meet or what defence is being brought forward. It is also the object of pleadings to set out
the issues on the open, to avoid surprise in court and prejudice so that justice can be
administered correctly.

10
1985 (2) ZLR 313 (SC)
11
HH 109/2005
BIBLIOGRAPHY
th
Theory and Principles of Pleading in Civil Actions5 ed at 32