HENWOOD v KAJESE and Others (372 of 2025) [2025] ZWHHC 372 (26 June 2025)

4 HH 372 - 25 HCHC 41/24 DOUGLAS JAMES HENWOOD versus KINGSTONE TABVANA KAJESE and THORNVLEI FARMING ENTERPRISES (PRIVATE) LIMITED and PROSPECT LITIUM ZIMBABWE (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE **V. NDLOVU J** HARARE; 21 May & 26 June 2025 _**Opposed Application – Exception and Special Plea**_ Mr _S. Sangula_ _,_ for the plaintiff Mr _P. C. Fanti & Adv. Tshuma_ _,_ for the first defendant Mr _G. Ndlovu_ _,_ for the second - third defendants V NDLOVU J: These are summons commencing an action. The plaintiff’s claim is for damages for pure economic loss and consequential loss he suffered by the plaintiff, as a result of the termination of his contract and use of arable land for commercial farming at Nhaka Valley Farm situated at Arcturus, Goromonzi in May 2022. The plaintiff sought the following relief: That the court enters judgment in favour of the plaintiff on every one of his claims and consequential relief against the defendants jointly and severally, the one paying and the others to be absolved, as follows:- 1. An order for the payment of the sum of US$ 150,000.00 (One Hundred and Fifty Thousand United States Dollars) as damages, being the value of long-term capital investments, expended by the plaintiff at the Nhaka valley farm between the years 2020 and 2022. Including the cost of seeds and seedlings. 2. An order for the payment of the sum of US$ $ 50,000.00 (Fifty Thousand United States Dollars) being damages suffered by the plaintiff in removing his equipment, machinery, inputs, and crops from the Nhaka valley farm and relocating same. 3. An order for the payment of US$3,500,000. 00 (Three Million Five Hundred Thousand United States Dollars) being damages for loss of future income, directly suffered by the plaintiff, on account of each of the defendant’s actions which resulted in the termination of the defendant’s long-term occupation and use of the Nhaka valley farm, Arcturus, Goromonzi. Such damages would place the plaintiff in the position the plaintiff would have been had his occupation of Nhaka valley farm not been terminated. 4. Costs of suit on a legal practitioner and client scale, including the costs of filing these summons. The claim is opposed by the defendants. The second and third defendants excepted to the summons on the following grounds; 1. Does not disclose a valid cause of action against the second and third defendant, and is, in any event, bad in law. 2. The claim is vague and embarrassing. _**FACTUAL BACKGROUND**_ Douglas James Henwood, the plaintiff, filed a summons against the defendants concerning his farming operations at Nhaka Valley Farm. The dispute arose from a Joint Venture Agreement established in 2019 between the first defendant, the landholder, and the second defendant, which was allegedly approved by the Ministry of Lands. The second defendant was responsible for providing capital and management, while the first defendant supplied the land. Following this, a Seasonal Farming Agreement was established on 12 December 2019, allowing the plaintiff to farm specific crops until 31 July 2020, in exchange for 8% of the gross turnover. After the Seasonal Agreement expired, the plaintiff was allowed to continue operations with the first defendant directly. An Addendum created on 8 December 2020, allegedly allowed the plaintiff to assume the second defendant's rights for a period of 15 years. Relying on this agreement, the plaintiff invested approximately US$150,000 in capital projects and managed various farming operations. This led to the first and third defendants terminating the plaintiff's farming rights in May 2022 without prior notice. At the time, the plaintiff was cultivating significant crops, including bananas and soya, and was forced to abandon further farming plans. Consequently, the plaintiff sought damages totaling US$3,700,000, which encompassed US$150,000 for capital investments, US$50,000 for relocation costs, and US$3,500,000 for loss of future income due to the abrupt termination of his operations. The plaintiff's primary grievance centers on the allegation that the defendants misrepresented key aspects of their agreement, including assurances of long-term farming tenure, the expectation of good faith actions, and limitations on mining activities to non-arable land. He has sought judgment against the defendants jointly and severally, along with legal costs. In response to the plaintiff's claims, the first defendant raised two special pleas. Firstly, he contended that the Court lacked jurisdiction due to an arbitration clause in the Joint Venture Agreement, which the plaintiff had not utilized. Secondly, he argued that the December 2020 Addendum, which the plaintiff relied upon to assert his role as a long-term joint venture partner, was illegal and void. The first defendant claimed that, under the original agreement, the second defendant could not transfer its interest without obtaining written consent, which was allegedly not provided to the plaintiff to replace the second defendant. Additionally, he asserted that the Addendum lacked necessary Ministerial approval under the Lands Commission Act for land occupation. The second and third defendants further excepted to the plaintiff’s claim on two grounds. They argued that the claim did not disclose a valid cause of action against them and was legally insufficient. They contended that the Addendum, which purportedly extended the plaintiff's tenure for 15 years, was entered into without their consent, as they were not parties to this agreement. They maintained that since the Addendum placed the plaintiff in the position of the second defendant regarding the 2019 Joint Venture Agreement, no actionable claim existed against the third defendant. Moreover, the second and third defendants claimed that the plaintiff's allegations were vague and embarrassing. They pointed out that the plaintiff pleaded the termination of agreements to which the second and third defendants were not parties, making it unclear on what basis they could have terminated such agreements. They prayed for the exception to the plaintiff’s claim to be upheld and for the claim to be dismissed with costs. The second and third defendants also asserted that the Addendum was illegal, violating statutory provisions found in the Agricultural Land Settlement (Permit Terms and Conditions) Regulations (SI 53/2014) and the Lands Commission Act, which both required Ministerial consent for farming partnerships or land occupation agreements on allocated land. They argued that without this approval, the Addendum had no legal effect, preventing any claims for damages from arising. Furthermore, they alleged that the plaintiff illegally planted permanent crops, such as citrus, which interfered with the third defendant's registered mining location, an action prohibited by the Mines and Minerals Act. In his Replication, the plaintiff countered the defendants' objections by asserting that the Court did have jurisdiction over the case because his claim involved all defendants. He argued that the third defendant was not part of the arbitration agreement and had refused arbitration, making judicial resolution necessary. The plaintiff denied that the Addendum was illegal, contending it was a fulfilment of the already Ministry-approved Joint Venture Agreement, rather than a new share-cropping agreement requiring separate approval. If the Addendum was deemed illegal, he claimed he was unaware of this fact. The plaintiff further argued that the defendants had been unjustly enriched by his significant investments and efforts. He emphasized that his actions did not harm public interest, and it would be unjust for the defendants to retain the benefits derived from his labour. He claimed the defendants unjustly benefited by USD $3,700,000 due to his performance under the allegedly void contract, asserting that any legal contraventions were merely technical and did not harm the public good. He contended that his contributions saved the first and second defendants from potential insolvency. Additionally, the plaintiff disputed the timing of the third defendant’s mining registration and requested that the third defendant provide proof. He also filed a procedural complaint (Notice of Irregular Proceedings) against the first defendant for submitting their defence late. The plaintiff posited that even if the agreement was found to be illegal, the rule preventing claims from illegal contracts _par delictum_ should be relaxed to prevent unjust enrichment. He cited case law supporting judicial discretion to override arbitration clauses in the interests of justice and efficacy. Conversely, the first defendant maintained that the arbitration clause was binding and that the Addendum was illegal, while the second and third defendants focused on the Addendum’s illegality due to the lack of Ministerial consent and the supremacy of mining rights. _**PROCEEDINGS BEFORE THE COURT**_ During the hearing, counsel for the second and third defendants first addressed the court, raising several housekeeping issues. He highlighted that the plaintiff’s counsel had expressed a willingness to concede to the exception. This concession was confirmed by the plaintiff in a letter dated 21 May 2025, which sought to uphold the exception, strike off the declaration, and request leave to substitute the declaration within 14 days of the order's granting, with costs to be determined at the court's discretion. The counsel noted that while the plaintiff agreed to the exception, there was no consensus on the consequences of this agreement. He asserted that if the declaration were struck out, there would be no matter remaining before the court. He referenced the case of _Chimwanengara_ v _The Sheriff of the High Court of Zimbabwe N.O & Anor _HH 487/18, emphasizing that amendments are intended to clarify claims. However, if a summons does not disclose a valid cause of action, it should be dismissed. The counsel argued that, given the plaintiff’s concession to the exception and desire to strike out the declaration, the summons lacked a valid cause of action and must be dismissed. Mr. _Tshuma_ , representing the first defendant, also addressed the court. He argued that their special plea could dispose of the matter, necessitating that they present their submissions first. He contended that the court could not permit an amendment while there remained questions regarding its jurisdiction to hear the case. He maintained that the concession of the exception could only be addressed after the special plea was resolved. Mr. _Tshuma_ aligned himself with the arguments put forth by the second and third defendants’ counsel as a party to the proceedings. Regarding the letter seeking to strike out the declaration, he pointed out that if the declaration was struck out, no matter would remain before the court, making any amendment impossible. He further stated that the plaintiff’s counsel needed to provide reasons for the withdrawal of the letter to assess potential prejudice to the other parties. He referenced the case of _China Africa Cotton Zimbabwe (Pvt) Ltd_ v _Quton Seed Company Ltd_ HH 199/18 p4, which established that a summons must disclose a cause of action; otherwise, it is legally insufficient and cannot be amended. He asserted that such a summons is a nullity and the only remedy is to withdraw it and start afresh. The plaintiff’s counsel responded by stating that he had met with the first defendant, but they were unable to reach an agreement. He expressed a desire to withdraw the letter; however, he noted that the other counsels opposed this withdrawal without proper justification. He argued that the letter should not be considered a formal pleading and therefore could not be heavily relied upon. The plaintiff’s counsel contended that where the summons was unclear, he should be allowed to amend it. He sought the court's permission to do so, referencing the case of _Sammys Group (Pvt) Ltd_ v _Meyburgh (N.O.) & Others _SC 194/2013 para 31 (2), which supports the notion that substitution should be permitted as long as it does not prejudice other parties involved. He also argued that it is permissible to file a summons without a declaration, as they are independent of each other. _**Issues for determination**_ 1. What is the consequence of upholding the exception? The central issue for determination in this case is the consequence of the exception raised by the second and third defendants. The plaintiff, conceded to the exception, which challenged the validity of his claims on the grounds that they are vague, embarrassing, and fail to disclose a cause of action. Herbstein and Van Winsen clearly outline the nature and purpose of an exception in their influential work, _The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa_ , specifically on page 630 of the 5th edition, stating that: - “An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action or the specific defence relied upon. The taking of an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or the joinder of issue by a plaintiff. It is designed to dispose of pleadings which are so vague and embarrassing that an intelligible cause of action or defence cannot be ascertained or to determine such issues between the parties as can be adjudicated upon without the leading of evidence. The aim of the exception procedure is thus to avoid the leading of unnecessary evidence and to dispose of a cause of a case in whole or in part expeditiously and cost-effectively.” In the case of _Murahwi_ v _Pam Golding Properties Zimbabwe_ HH 723/22 p3-4 Chilimbe J was of the view; “An exception is therefore a special implement in the rules of the court`s toolbox. Its purpose is to deliver convenience and pragmatism through the disposition of matters in a speedy, cheap and easy manner. This it achieves by (a) persuading the court to strike off claims that are irreparably defective in that they reflect no valid causa supportable at law. Secondly (b) by so doing, the exception relieves a defendant from the agony of answering a claim suffocated by the overburden of prolix and imprecision. (c), But an exception can also deliver a reprieve to a befuddled plaintiff whose summons and declaration may be salvaged by the deletion or correction of any offending portions thereof. In the same respect, the same authorities that demand unstinting adherence to pristine standard in pleadings have also demonstrated qualified tolerance to certain instances of forgivably inadequate drafting. But there is a limit to the extent to which such shortcomings may be accommodated. The principal consideration is that the causa must be unfailingly discernible from pleadings for any inelegance in the same pleadings to be deemed pardonable. To this extent, the exception is a procedure which must be taken only in appropriate circumstances and for the right reasons. Our courts have regularly chastised improper and insincere resort to use of the exception.” In the current matter, the Court finds it unnecessary to delve deeply into the specifics of how the plaintiff's summons fails to disclose a valid cause of action. The plaintiff’ counsel has demonstrated a full understanding of the exception raised and he conceded to it. Nonetheless, it is unequivocally clear to the court that the summons does not articulate a cause of action against the second and third defendants, compelling the Court to determine the appropriate consequence of this finding. The plaintiff submitted a letter outlining his intention to concede to the exception raised and to strike out the declaration. Given this concession, there will be nothing remaining to amend. It becomes impossible for the plaintiff to amend a declaration that has already been struck out. The remaining summons, which the plaintiff argued were still before the Court, merely mention the relief sought and still fail to demonstrate a valid cause of action. Furthermore, the plaintiff attempted to withdraw the letter acknowledging his concession, but the courts maintain a clear stance regarding such withdrawals. In _Wayne Parham and Credfin (Private) Limited_ v _Jan Fredrick Kotze_ , Muremba J asserted that an admission is a voluntary concession of fact that conclusively determines the issue and eliminates the need for further evidence. Once an admission is made, it carries serious consequences that should not be undone without a cogent and acceptable explanation. This principle emphasizes that an admission narrows or eliminates issues, rendering it incompetent for the party making it to later contradict that admission. In _President Varsekeringsmaats Kappy Bpk_ v _Moodley 1964 (4) SA 109 (T)_ at page 110H -111A it was held that amendments involving the withdrawal of an admission are treated with greater scrutiny. Such withdrawals require a full explanation to convince the Court of their bona fides and are more likely to prejudice the other party, who may have relied on the admission. Herbstein and Van Winsen in _The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa_ 5th ed at p 685 further elaborate that when a proposed amendment involves the withdrawal of an admission, the Court will generally require a satisfactory explanation for the circumstances surrounding the admission and the reasons for seeking its withdrawal. The potential prejudice to the other party must also be considered, as allowing the withdrawal may cause injustice that cannot be remedied by a special order as to costs. The plaintiff in this matter is blowing hot and cold and confusing everyone concerned in relation to the concession to the exceptions. However it does not matter what he terms the letter or its contents, the exceptions remain. The court is obliged to decide on them. The Court is persuaded to strike out the plaintiff’s claims due to their irreparable defects, which do not reflect any valid _cause_ supportable at law. This decision also serves to relieve the defendants from the burden of addressing a claim characterized by excessive vagueness and imprecision. It is essential that a claim be sufficiently clear and specific to allow the opposing party to prepare an adequate defence. The summons lacks clarity regarding how the second and third defendants are properly cited, making it impossible for any portion to be salvaged through deletion or correction. The defects are fundamental, rendering the entire claim deficient, especially since there is no declaration currently before the Court. The Court's analysis underscores that the shortcomings evident in this case cannot be accommodated, as the summons fails to disclose a cause of action against the defendants. In summary, the consequence of the defective claim, together with the plaintiff’s concession to the exceptions, is that the Court must uphold the exception raised by the second and third defendants. The Court concludes that there is no matter before it, anymore against anyone, including the first defendant. Accordingly, the claim is struck off the roll with costs. **V Ndlovu****J:** ………………………………………………. _D. Matete & Company Commercial Law Chambers_, plaintiff’s legal practitioners _Mawere Sibanda Commercial Lawyers_ , first defendants’ legal practitioners _Gill, Godlonton & Gerrans_, the second and third defendants’ legal practitioners