HIGH COURT OF LESOTHO
BELINA NKALAI Defendant
by the Hon. Mr Justice M L Lehohla on the 15th day of December, 2000.
plaintiff acting in terms of Rule 29 has excepted to the Defendant's
plea on the grounds that
does not disclose a defence
is vague and embarrassing
does not comply with the requirements of Rule 22.
Mpobole for the plaintiff argued that the plaintiff has sued in
lent and advanced to the defendant's late husband.
pointed out that the defendant and her husband were married in
community of property.
claims as appears in the summons are in two categories. Claim one is
in the sum of M83 073-92. Claim two is in an amount of Ml 569 082-84.
Interest on both is at the rate of 24% per annum starting from
September 1996 to date of payment.
Mpobole indicated that the defendant stood surety for her late
husband and was both such surety and co-principal debtor.
at the defendant making just a bare denial in her plea to the effect
that "contents herein are denied and the plaintiff is put to the
pointed out that in the alternative though not quite pointedly the
defendant pleads that she couldn't stand surety for her husband as
the two were married in community of property.
"The defendant shall, in his plea, admit or deny or confess and
avoid all the material facts alleged in the declaration or state
which of the said facts are not admitted and to what extent. He must
clearly and concisely state all material facts on which he relies".
counsel for the plaintiff accordingly submitted that the defendant's
plea does not accommodate itself into any of the essentials set out
in the above Rule because it is a bare denial of liability that does
not even state the nature of the defence nor disclose the material
facts on which the defence is based. Thus the plaintiff is at a loss
as it does not know what case to meet. To this extent the plea is
Mpobole correctly submitted that pleadings are meant to curtail
issues and therefore must fully disclose what case the other party is
indeed a valid challenge to point out that it is no defence to say "I
deny and put the party making the allegation to proof.
essential to say what set of facts are denied.
Mpobole's challenge is indeed valid to the extent that he has
indicated that, for example, the plaintiff has alleged that the
defendant's husband had an account with it and that certain amounts
were disbursed to him at this special instance and request and
further that certain interest was to be payable and that the amount
as at issuance of summons was due and payable yet the stock response
it obtains from all these allegations leaves the plaintiff without
knowing if the defendant denies (1) that her husband operated those
accounts; or (2) that monies were advanced at his special instance
plaintiff is totally at sea whether perhaps the defendant in fact
doesn't know that her husband operated the accounts but denies the
monies were due and payable.
reaction to the onslaught Mr Ntlhoki for the defendant submitted that
the exception is bad in law and should be dismissed with costs.
Counsel indicated that it couldn't lie in the plaintiffs mouth to say
the defendant has made a bare denial of liability while at once
conceding that the defendant is also relying on an alternative
defence. The observation by the plaintiff
this seems to be the case should be construed as a concession that
there has been
disclosed by the defendant. Whether or not such a defence as has been
disclosed is sustainable should not and cannot be an issue in the
present proceedings but rather would have to stand over till the
proper stage which is a trial stage has been reached. I agree with
the trial stage is the only proper stage wherein questions of merit
can properly be traversed. The present therefore is a premature stage
to embark on any such inquiry.
agree that it is premature to make a determination whether the
defendant could be surety and co-principal debtor with her husband it
would seem on the other hand that the so called power of attorney
attached as proof of suretyship by the plaintiff to further
particulars served on the defendant can legitimately be relied upon
by the plaintiff as prima facie evidence that the defendant bound
herself as surety and co-principal debtor for acts done by Teke
Nkalai pursuant to contents of Annexure "Al". Belina
'Makabelo Nkalai designating herself as (Mrs) under her signature
when executing Annexure "A1" makes the following
undertaking at the bottom of that document –
is understood that, so far as you are interested and concerned all
such acts of the said Current Accounts shall be binding upon me and
that the authority given to him (Teke Nkalai) remains in force until
I shall give you notice to the contrary in writing".
no mention of such notice has been given to date as far as I am aware
the plaintiff was entitled even in the current proceeding to use it
adversely against the defendant who prima facie executed it.
is merely in passing. The area in respect of which the defendant
seems to be on solid ground is the challenge by Mr Ntlhoki showing
that while for argument sake it could be said the defendant's plea
doesn't comply with Rule 22(3) and as such could be dubbed vague and
embarrassing the plaintiff itself is not out of the wood yet because
its exception doesn't comply with the Rules.
plaintiff has done itself in the eye by excepting when realising that
the plaintiff has not complied with the Rules. This does not accord
with provisions of Rule 29.
which is the Rule that deals with exceptions says at sub-rule (2):
"Where a pleading is vague and embarrassing, the opposing party,
(shall-may) deliver, within the period allowed for the delivery of
subsequent pleading, a notice to the plaintiff.........(or) party
whose pleading is attacked,.........within twenty-one (days) stating
that the pleading is vague and embarrassing setting out the
particulars which are alleged makes(sic) the pleading so vague and
embarrassing, and calling upon him to remove the cause of the
complaint within seven days and informing him that if he does not do
so an exception would be taken to such pleading".
instant matter the plaintiff seems to have paid scant regard to the
requirements of the above rule in that it didn't bother –
deliver notice to the party whose pleading is attacked
state in such notice that the pleading is vague and embarrassing
warn the party whose pleading is attacked to remove the cause of the
complaint within seven days
warn such party that in the event of non-compliance then the
plaintiff would move an exception before court.
there is no indication that the move embarked on by the plaintiff was
effected within 21 days of receiving the opposing party's offending
my general assessment of what is involved in this proceeding is that
like a curate's egg it part-takes of the good and the bad in equal
measures in such a way that neither the plaintiff nor the defendant
is free from equal fault, I make a determination that a rare
occurrence of equilibrium has been reached in this proceeding. And
because where such a stage is reached it is the excipient who should
be disobliged the exception is dismissed. However because of the
criticisms made of the defendant's case I order that each party, bear
its own costs.
plaintiff is allowed to move its exception within the next 30 days if
it so wishes in order to avoid the delay which so far has
unnecessarily dogged this matter.
Plaintiff: Mr Mpobole
Defendant: Mr Ntlhoki
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