Choppies Enterprise exception plea on Mphokos case dismissed

Former Vice-President Phelekezela Mphoko

THE Bulawayo High Court has dismissed the exception plea raised by the Choppies Enterprise in a case in which former Vice-President Phelekezela Mphoko and his son Siqokoqela sued the company over 51% shareholding that they claim ownership of.

The Mphokos, represented by their lawyer Zibusiso Ncube, is suing Nanavac Investments Pty Ltd, Choppies Enterprise and Choppies Distribution Centre (Proprietary) Limited all in Gaborone, Botswana demanding payment for the 51% shares.

On July 28, Bulawayo High Court Judge Justice Martin Makonese dismissed the defendants plea for exception on lack of merit.

In his judgment, Makonese said a plaintiff does not need to plead evidence or the law.

“The defendant is not entitled to an abridged version of the plaintiff’s evidence. The defendant is only entitled to such information as would enable them to respond to the plaintiff’s claims. An exception based on the lack of a cause of action in the plaintiff’s claim must establish that there are no facts pleaded that can be sustained even if evidence is led. The exception is opposed by the plaintiffs,” ruled Makonese.

The plaintiffs are Zimbabweans, while the first defendant is a duly incorporated company in terms of the law of Zimbabwe and the second and third defendants are public companies incorporated in terms of the laws of Botswana.

The second defendant (Choppies Enterprises) has a chain of retail shops known as Choppies in all major cities in Zimbabwe.

Makonese said the first exception raised by defendants is that the plaintiffs’ cause of action is vague  and embarrassing.

“It is apparent from the submissions filed by the defendants that they are aware that the plaintiffs claim true value of 51% shareholding in the first defendant as the sum of US$22 585 714, that the plaintiffs consider that the sum of US$2900 000 which was paid is not the true value of the 51% shareholding, that the deed of settlement to the extent to which it purports to set out the value of the 51% shareholding of the plaintiffs in the 1st defendant is null and void, that plaintiffs are entitled to an order declaring that they are entitled to payment of the true value of 51% shareholding which they held before they were divested of their shareholding in the 1st defendant,” Makonese ruled.

Indications were that the plaintiffs were the majority shareholders in the first defendant holding an aggregate of 51% shareholding in the company. Siqokoqela held 25,5% while the former Vice-President held 25,5% and Choppies Enterprise held 49% shareholding in (Nanavac Investments).

The dispute arose in 2018 between the Mphokos and Choppies Enterprise, and spilled to the courts.

Court papers state that in January 2019 the Mphokos and defendants agreed that plaintiffs would divest themselves of their shareholding in Nanavac Investments.

The parties entered into an agreement which resulted in a deed of settlement being recorded. The Mphokos later sought an order declaring the deed of settlement null and void, adding that they were entitled to payment of the true value of their 51% shareholding.

Makonese noted that the Mphokos gave notices to the defendants on August 18, 2020 saying the declaration was vague and embarrassing, but did not disclose a cause of action.

Makonese then ruled that the deed of settlement to the extent to which it purports to set out the value of the 51% shares of the plaintiffs in 1st defendant is null and void, and that plaintiffs are entitled to an order declaring that they are entitled to payment for the 51% shares.

“In my view an exception which requires the plaintiff to plead something more than their cause of action is without merit,” Makonese ruled.

“I am satisfied that the excipients have failed to discharge the onus to show that the pleadings are vague and embarrassing and that they would be prejudiced in any way. The cause of action is sufficiently set out in the summons and declaration. In the result and accordingly, the application be and is hereby dismissed with costs.”

The Mphokos had submitted that the deed of settlement was signed in January 2019 under duress after the arrest and detention of Siqokoqela and his wife on malicious and false charges.

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