The fundamental principles which govern all pleadings.

BY EMMANUEL T. NHACHI
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 Galante1 '(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. Becks 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 Magner3 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
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HH 31/2002 HH 15/2003 3 1972 (1) SA 198 (RA)

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 & Anor4, that while the court will strive to ensure that the parties are restricted to the 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, thats where a plea of res judicata can be used. As it was held in Edward Elio Galante V Ronnie Jacaranda Galante 5, quoting from Beck6, 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 Another7 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 & Anor8from, page 36 of Beck9, accurately sums up the
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2000 (1) ZLR 405 (HC) HH 31/2002

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Theory and Principles of Pleading in Civil Actions5 ed at 32 1998 (2) ZLR 387 8 2000 (2) ZLR 109 (SC)

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 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
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Theory and Principles of Pleading in Civil Actions 5 ed 1985 (2) ZLR 313 (SC) 11 HH 109/2005
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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. BIBLIOGRAPHY
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Theory and Principles of Pleading in Civil Actions5 ed at 32