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PERSUAVISE & EFFECTIVE PLEADING
Some useful Observations
Pleadings that are clear, logical, well organised and
above all, contain all the facta probanda necessary to
support a claim or defence are more likely to find favour
with the court than pleadings that are deficient or
defective. In the words of Justice Giles of the New
South Wales Court of Appeal (Australia), A good
pleading helps fulfil the purpose; a bad one can frustrate it and
bring unnecessary trouble and expense, with accompanying
diversion of resources.
It is a truism that all legal practitioners should strive to
file good pleadings. Regrettably, a perusal of recent
judicial pronouncements on the subject paints a rather
grim and dire picture. It is therefore necessary to take
this opportunity to remind ourselves of some of the
basic tenets of good pleading.
As pointed out by Makarau JA in Jirira v Zimcor Ltd
& Anor HH-98-10, it is the duty of legal practitioners
to extract the legal issues from the stories that are told
by clients and thereafter proceed to plead with precision
and in accordance with the law. It was also stated in the
same judgment that it was remiss and indeed
incompetent for a legal practitioner to merely repeat the
clients story using the same imprecise language used by
laymen. This is in no way a call to litter our papers with
unnecessary legalese and latinisms, but instead, it is a
demand that pleadings be coherent, legally relevant and
concise. Any averment or statement that does not take
the matter further or serve some utility should be
avoided like the plague.
It is also important not to commit too much ink to
paper. In African Resources Ltd & Ors v
Gwaradzimba NO S-2-11 the Supreme Court took
issue with the voluminous founding affidavit that had
been filed on behalf of the applicant. It is the function
of a legal practitioner to state the clients case succinctly
and avoid unnecessary verbiage. The court was very
clear that filing lengthy convoluted pleadings might lead
to the court awarding costs de bonis propriis against the
offending practitioner. Brevity is not only a requirement
asked of pleadings, it is also demanded of other court
documents like Heads of Argument; see the costs order
in S v Khoza and Others 2010 (2) SACR 207 (SCA)
IT IS A TRUISM THAT ALL LEGAL
PRACTITIONERS SHOULD STRIVE TO
FILE GOOD PLEADINGS.
REGRETTABLY, A PERUSAL OF
RECENT JUDICIAL PRONOUNCEMENTS
ON THE SUBJECT PAINTS A RATHER
GRIM AND DIRE PICTURE


LEX LATA
JUDICIAL QOUTE
The substantial rules of pleading are founded in strong sense, and in the soundest and closest logic; and so
appear, when well understood and explained: Though, by being misunderstood and misapplied, they are often
made use of as instruments of chicane.
Lord Mansfield, Robinson v. Raley (1756), 1 Burr. 319
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wherein the South African Supreme Court of Appeal
took issue with the filing of heads of argument
consisting three volumes of 281 pages.
Legal practitioners are also urged to sanitize the
language they employ in pleadings. The use of strong,
insulting or disparaging language is discouraged and may
be punished. As pointed out by Ndou J in Ferguson &
Ors v ZCTU & Ors HB-57-04 there are limits to what
type of unrefined language the courts will tolerate. In
Chivinge v Mushakarara & Anor 1998 (2) ZLR 500
(SC) the court, was incensed by the use of such words
as spurious, ridiculous, ludicrous, preposterous
and absurd. In the courts view, the use of strong or
insulting language only sullies the reputation for
propriety and dignity of the legal profession. While there
might be legitimate reason to criticize or highlight errors
or shortcomings it is important to make sure that
averments do not spill over the walls of decency and
propriety. There is a wide chasm between fair criticism,
on the one hand, and abuse and slander on the other. At
the end of the day, it pays to remember that it is the
strength of the legal argument that carries the day and
not the veracity of the insult.
It is also critical to plead true to the law and the rules of
court. A conscientious perusal of the relevant law will
aid in delimiting the material facts that need to be
alleged. Parties to litigation have a duty to allege in their
pleadings all the material facts upon which they rely see
Minister of Safety & Security v Slabbert [2010] 3 All
SA 474 (SCA). One should take great care when
formulating a clients case and drafting pleadings. While
the dicta in UDC Ltd v Shamva Flora (Pvt) Ltd 2000
(2) ZLR 210 (HC) postulates that the courts, liberally,
and at any stage may allow either party to amend his
pleadings this is in no way an excuse to draft bad
pleadings. In fact, if one is to consider the case of
Commercial Union Assurance Co Ltd v Waymark
NO 1995 (2) SA 73 (TK) it will be apparent that only in
deserving cases will amendment of pleadings be allowed.
It should be noted that when faced with a defective
pleading the innocent party is not entitled sit and do
nothing about it. The innocent party is obliged to except,
request further particulars or give notice to cure the
defect see MN v AJ 2013 (3) SA 26 (WCC). Generally,
the function of pleadings is to bring the issues before
the court and ordinarily should not become the centre
of attention. Defective pleadings will only draw ire from
the court and may in certain instances lead to adverse
cost orders or dismissal of the claim or defence.
In conclusion the drawing up of pleadings is a serious
exercise which should be carried out with due care and
diligence. As opined by Satchwell J in Motswai v Road
Accident Fund 2013 (3) SA 8 (GSJ) when lawyers sign
pleadings, they do so as officers of the court. By
appending a signature to a pleading, the legal
practitioner concerned is attesting that he or she was
scrupulous in the preparation of the said pleading.

DO PUBLIC FIGURES HAVE A RIGHT TO PRIVACY
How far into someones bedroom can we go?
It was the late US Chief Justice Earl Warren who in
Lopez v. United States 373 U.S 427 (1963)
pronounced, the fantastic advances in the field of electronic
communication constitute a greater danger to the privacy of the
individual. With the advent of ingenious and
instantaneous ways of communication coupled with an
increasingly voyeuristic society with a healthy appetite
for scandal, one may be forgiven for thinking that public
personalities have no right to privacy. This, however, is
far from the truth. There are limits to which we can peer
into the deep recesses of our public figures bedrooms.
Those limits are not just moral but legal.
Our law has long since recognized a qualified common
law right to privacy. The right protects against unlawful
intrusions into a persons privacy and discourages the
illegal publication of private information see Mandaza
v Daily News & Anor HH-144-02. Generally, an
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invasion of privacy can take place by way of either an
unlawful intrusion upon the personal privacy of another
or the unlawful publication of private facts about a
person. The nature and operation of the right to privacy
was laid out in the case of Financial Mail (Pty) Ltd v
Sage Holdings Ltd 1993 (2) SA 451 (A) at 462. Briefly,
in order for one to successfully claim invasion of privacy
at common law, the following must be pleaded and
proved: i) intrusion into ones privacy ii) wrongfulness
and iii) intention.
It is true that public personalities must expect and
accept that their actions will be more closely scrutinized
by the media and public in general. Even trivial facts
relating to a public figure can be of great interest to
readers and other observers of the media. However, as
pointed out by Bhunu J in Mubaiwa v Chiwenga HH-
189-12 public figures, such as army generals and beauty
pageant models also have private lives that must be
respected and protected by law against invasion. The
protection of the private lives of public figures is not
unique to Zimbabwe. Similar sentiments were made in
von Hannover v Germany EMLR 379; (2005) 40
EHRR 1 wherein the European Court held that
everyone, including celebrities, have a legitimate
expectation that their private lives would be protected.
See also recent case of RocknRoll v News Group
Newspapers Ltd [2013] EWHC 24 (Ch) which
reiterates the above mentioned position.
Bearing in mind the fact that todays technology allows
for the instantaneous spread of information it is
imperative that the courts preserve the protection of
privacy. What a person chooses to do in the confines of
his home or other such private place should not in
ordinary circumstances be fodder for the masses. As
ORegans J points out in National Coalition for Gay
and Lesbian Equality and Anor v Minister of
Justice 1999 (1) SA 6 (CC) (at para 30) privacy is
inherently linked to the dignity of man and it is for that
reason privacy should be jealously guarded.
There are, however, some qualifications before one can
succeed in a privacy claim at common law. As pointed
out in Mandaza v Daily News & Anor the claimant
has to show that the information published was private
and sensitive. Information that is in the public domain
or can be obtained from public repositories is not
protected. Furthermore, the private information has
to be obtained by means of unlawful intrusion and
whose publication will cause some injuria.
It has to be accepted that the right to privacy, whether
at common law or as a constitutional entitlement, has to
be balanced against the freedom of the press. Where it is
in the public interest to know the private misdeeds of a
public figure then the press has to be granted some
latitude. However, as pointed out Tshabalala-
Msimang and Another v Makhanya and Others
2008 (3) BCLR 338 (W); Freedom of the press does
not mean that the press is free to ruin a reputation or to
break a confidence, or to pollute the cause of justice or
to do anything that is unlawful.

MITIGATION
Begging with dignity
Ndou J emphatically states in S v Shariwa HB-37-03;
that there is no room in our system for an "instinctive"
approach to sentencing. Sentencing should be a rational
process where the sentencing-court must strive to find a
punishment that fits both the crime and the offender.
Mitigation is an important and integral part of the
process of finding a fitting punishment.
Despite this important function, many lawyers are often
ill prepared or nonchalant when it comes time to
mitigate. It is no exaggeration that there can be no
proper sentencing without effective mitigation. It is for
that reason that legal practitioners should put effort in
mitigating and ameliorating sentence. A mere
regurgitation of boiler-plate submissions will not suffice.
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Regardless of the strength of the clients defence, it is
always prudent to carry out investigations into the facts
which may reduce the gravity of the offence or which
mitigate the guilt of the client, Morris: Technique in
Litigation 6th Ed at 19.4.6. If carried out properly, this
exercise will sufficiently arm the practitioner with the
ammunition to prosecute an effective mitigation. There
is no formula as to what facts will constitute an effective
mitigation. As observed in S v Pillay 1968 (3) SA 21 (N)
each case has to be treated on its own merits and it is
necessary to consider not only the nature of the offence
but also all the relevant facts and circumstances peculiar
to the case and personal to the accused.
It is a cardinal principle of our criminal justice system
that before assessing an appropriate sentence a judicial
officer must seriously engage in a pre-sentencing inquiry
in order to gather as much information as possible to
enable him or her to humanely and meaningfully assess
sentence per Mathonsi J in S v Mpofu HB-21-11. This
dicta not only postulates that the sentencing-court
should apply its mind to all relevant factors but also has
to act humanely. Clearly only a meaningful pre-sentence
inquiry will result in an appropriate sentence. See also
S v Ncube & Ors HH-139-11.
It is not uncommon to hear prosecutors submit that the
prevalence of a certain type of crime is good enough
reason to severely punish an accused before the court.
The argument has always been that the courts should
issue harsh sentences to deter potential offenders. The
mitigating lawyer should bear in mind the sentiments of
Ndou J in S v Sibanda HB-102-06 wherein he opined:
While the prevalence of an offence is a relevant factor in sentencing,
it is not the overriding factor. It is not the function of the court to
try to control crime by imprisoning people accused of crimes which
the legislature, in its wisdom, considers trifling. See also S v
Makumbe HH-39-13 wherein it was held that it was
important for courts to guard against excessive devotion
to deterrence to the extent that it obscures other
relevant considerations, and so leads to a punishment
that is disparate to the offender's deserts.
The mitigating lawyer should always address the court
on issues relating to the seriousness of the offence. To
my mind any offence that has an option of a fine or
where community service is available, should not; in
ordinary circumstances attract a prison term. There is
ample authority to support this assertion, the most
venerable being S v Makumbe supra wherein Mavangira
J stated; Where a penalty provision provides for either a fine or
imprisonment or both, the court ought to be satisfied that a fine
will not meet the justice of the case before it considers the custodial
option as well as the length thereof.
Generally, imprisonment is a very serious and drastic
penalty. In ordinary circumstances imprisonment should
be resorted to as a last resort. Ordinarily, the court
should apply its mind to each case and give cogent
reasons why imprisonment is an appropriate sentence.
see generally S v Chireyi & Ors HH-63-11. It is
however, incumbent on the mitigating lawyer to present
evidence, that when assessed, shows that imprisonment
will not be an appropriate or just sentence.
It also pays to remind the court that the criminal justice
delivery system is about punishment as it is about
reforming the offender. There is over emphasis on the
punishment yet every sentence should see the offender
reformed.
As explained in State vs. Rosemary Manyevere HB-
38-03, the most popular theory today is that the proper
aim of criminal procedure is to reform the offender so
that he may become accustomed to the social order. The
criminal justice system should not be a factory churning
out convict after convict. Where an accused is deserving,
the court should favour reform over retribution.
Mandatory or minimum sentences pose a special
difficulty for most lawyers. Offences that have
THE CRIMINAL JUSTICE SYSTEM
SHOULD NOT BE A FACTORY
CHURNING OUT CONVICT AFTER
CONVICT. WHERE AN ACCUSED IS
DESERVING, THE COURT SHOULD
FAVOR REFORM OVER RETRIBUTION.
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mandatory sentences only allow for an amelioration of
the punishment if the accused proves special
circumstances. Most legal practitioners will agree that
finding special circumstances is a task akin to hunting
for unicorns. Without necessarily ignoring the plethora
of case law on the subject Chichera v A-G S-98-04 is
particularly instructive. In that matter the Supreme
Court states, inter alia, that the concept of special
circumstances is meant to mitigate the harshness of the
minimum sentence and to provide an avenue for the
exercise of the trial court's discretion where special
circumstances were found to exist. The fact that the
legislature did not ascribe a meaning to the term "special
circumstances" means that the decision as to whether
special circumstances exist is left within the province of
the courts. From the dicta in that matter it is clear that
special circumstances are those facts that make the
imposition of the minimum sentence so unfit having
had regard to the offence and the offender. It is those
facts, peculiar to the accused and the circumstances,
which would result in the mandatory sentence being
grossly disproportionate. It is mitigation that an accused
is the breadwinner and imprisonment will constitute a
hardship on his family; it is a special circumstance that
the accused is the primary care giver of minor children
and there is absolutely no one to take over that role
when accused is incarcerated. Other examples of what
may constitute special circumstances include, the
accused was forced by circumstances to commit an
offence or was bona fide ignorant of some statutory
provision of the law, see S v Mbewe & ORS 1988 (1)
ZLR 7 (HC).
One should also bear in mind that there is nothing
wrong in asking the court to be merciful. Where an
accused is remorseful, has offered restitution or pleaded
guilty thereby saving the courts time; it would be
capricious to ignore a plea for mercy. In S v Ncube and
Others 2011 (2) SACR 471 (GSJ) it was held that
sentences were to be assessed with measured control
and degree of mercy. It does no harm to remember that
Abraham Lincoln once said mercy bears richer fruits
than strict justice. (quoted in Lincoln Memorial (1882),
edited by Osborn Oldroyd).

ACCOUNT & DEBATMENT

Claims to render account and debate thereof are a
rarity in Zimbabwe. Despite their obvious utility, it
appears legal practitioners in this jurisdiction are
averse to filing such claims. The typical formulation of
the claim is for delivery of an account, a debate
thereof and payment of the amount found to be due
see LTC Harms: Almers Precedent of Pleadings
7th Ed at page 1.
An apt description of a claim for account and
debatement can be found in the case of South African
Iron And Steel Corporation Ltd V Abdulnabi 1989
(2) Sa 224 (T). In that matter, at page 235,
Hartzenberg J states When a litigant claims an account,
debatement thereof and payment of what is found to be owing to
him, he does so because he believes that the party from whom he
claims owes him money but he is not able to calculate the
amount owing without an account and debatement thereof. He
institutes his claim because he wants an order for payment of
what is owing to him. That is the final relief, which he wants.
In a typical claim for account and debatement the
claimant will demand i) the rendering of an account
duly supported by vouchers; ii) debatement thereof; iii)
payment of the amount found to be due; and iv) costs
of suit vide Hynes v Bailey 1974 (2) SA 580 (D). By
"account", in the context of this type of claim, means a
full account or "accounting" by a defendant of his
administration or management by disclosure of all
moneys received or disbursed by him over the relevant
period supported by proper vouchers. An order will be
granted unless it is shown that he has thus fully
accounted. Cf. Voet, 17.2.11, (Gane's translation) vol.
3, at page 228.
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Authors Contact Details
Address : PO Box CH 860 Chisipite
Harare Zimbabwe
Email : zhuwarara@lawyer.com
Phone : +263 773 853 536
DISCLAIMER
The information and any commentary on the law contained
in this publication is designed for lawyers and provided free
of charge. The publication aims to generate discussion and
debate amongst legal practitioners. Every reasonable effort
is made to make the information and commentary accurate
and up to date, but no responsibility for its accuracy and
correctness, or for any consequences of relying on it, is
assumed by the author.

Tawanda Zhuwarara
LLBS (UZ)




From the foregoing, it is clear that an account is
generally a statement of receipts and expenditure. See
the example of Branch v Vic Diamond & Son (Pvt)
Ltd 1957 (1) SA 331 (SR) wherein the plaintiff
claimed from the defendant an account of the
administration of certain property being stand 1888
Bulawayo North, belonging to the plaintiff. It
therefore follows that an account is a full explanation
of how much money was received and how much of it
was spent and why. After the accounting, a debate
would ensue. This process will interrogate the financial
information provided, with the aim of establishing
whether any amount is owed to the claimant.
In English law the "action on account" is a highly
developed procedure governed by Rules of Court. See
Odgers on Pleading and Practice, 17th ed., pp. 42 to
45. In Zimbabwe as in South Africa, the rules are not
as developed. The dicta in Iron & Steel Corporation
Ltd v Abdulnabi supra suggests that as a matter of
convenience such cases may be heard in stages.
Generally, it is now accepted that the courts can
prescribe what procedure is to be followed vide Doyle
and Another v Fleet Motors PE (Pty) Ltd 1971 (3)
SA 760 (A) at 763C - D and 768B. This flexibility
allows issues to be aired out without the rigid
formalisms associated with other claims.
It is important to highlight that just because a claimant
cannot ascertain how much he is owed does not mean
that he or she is automatically entitled to account and
debatement. As pointed out in Video Parktown v
Paramount Pictures Corporation & Ors 1986 (2)
SA G 623 (T) a plaintiff is not entitled to an account
unless he can show that the defendant stands in a
fiduciary relationship to him, or that some statute or
contract imposes a duty to render the account.
Allegations which do no more than to indicate a
debtor and creditor relationship would not justify a
claim for a statement account. In such circumstances
the plaintiffs remedy is to obtain a discovery order see
Rectifier & Communication Systems (Pty) Ltd v
Harrison And Others 1981 (2) SA 283 (C).
The defendant has a duty to render a full and proper
account. It is not permissible for the defendant to
tender a defective account. If a defective account is
allowed to stand it would render the debate process
superfluous. If it appeared from the pleadings that the
plaintiff had already received an account which he
averred was insufficient, the plaintiff is entitled to
press his or her claim for a due end proper account.
See Rellams (Pty) Ltd v James Brown & Hamer
Ltd 1983 (1) SA 556 (N) at 560-561.
Having established all the elements as set out in Doyle
and Another v Fleet Motors PE (Pty) Ltd the court
will usually order the rendering of an account within a
specified time. Depending on the facts, the court will
also outline how the debate will be carried out. The
likelihood is that the debate will be carried out
between the parties and if no agreement is reached,
they will be then enjoined to formulate a list of the
disputed issues and proceed to trial. As clearly stated
in South African Iron And Steel Corporation Ltd v
Abdulnabi 1989 (2) SA 224 (T) the ultimate aim is
for the Plaintiff to receive what is due to him.
END