HIGH COURT OF LESOTHO
MPHALANE 1st APPLICANT
DUROW 2nd APPLICANT
PHORI 1st RESPONDENT
DEPUTY SHERIFF 2nd RESPONDENT
by the Honourable Mr. Justice T. Monapathi on the 13th day of January
29(5) requires that:
any pleading contains averments which are scandalous, vexatious,
argumentative, irrelevant or superfluous the opposite party may
within the period allowed for delivering of any subsequent pleading,
apply for the striking out of the matter, aforesaid, setting out the
grounds upon which the application
Applicant in the instant matter, which was an application for leave
to stay execution pending appeal, has applied for striking out of
portions of the Respondents' opposing affidavit as being
argumentative, scandalous, vexatious or irrelevant. I would only
grant the application if I was satisfied that the Applicant would be
prejudiced in his case if it was not granted.
accepted the description of the nature of offending statements which
would deserve to be struck out in appropriate circumstances as stated
in BOSMAN v VAN VUUREN 1911 TPD 825 at 832 and in MEINTJIES v WALLACH
LTD 1918 TPD 278 AD at 285 - 286 as submitted by Mr.
Indeed in terms of the Rule 29(5) (c) this seemed to be the
requirement. The six (6) portions in the same number of paragraphs
were singled out from the Respondent's answering affidavit. When 1
asked Mr. Mphalane in what manner he would be prejudiced in his claim
he replied that he would be unable to reply to alleged offending
portions since they were of such a nature that no reasonable reply
could be expected.
Mr. Mphalane's answer that he would be unable to respond was correct
insofar as it concerned matters of argument and credibility which
ought to have had no place in the Respondents' affidavit. See
MORGENDAL v FERREIRA 1956(4) SA 625(T) at page 268 as approved in
JONES v JOHN BARR & CO PTY LTD AND ANOTHER 1967(3) SA 292 (WLD).
But the question would still be how the offending portion affected
"the conduct of his claim or defence."
challenged portions of the Respondents' affidavit made
reading. Paragraph 6 of the opposing affidavit contained the
following statement which was branded as scandalous, argumentative
and superfluous and insulting:
"1st Applicant holds that the Court a quo and the Court of
Appeal was stupid in this finding." (My underlining)
had been no way in the paragraph 7 of the founding affidavit (to
which the above was a response) where there was a suggestion that
this Court and the Court of Appeal were said to have been stupid. The
Applicant said he was therefore offended by the paragraph and it
should accordingly be struck out,
certainly could not say the Respondent intended to attack the dignity
of the Court or show of disrespect. But to the extent to which the
statement sought to attribute such discourteous expression was most
unbecoming of the Attorney who drew the affidavit. Indeed it was
objectionable in that it sought to say indirectly that Mr. Mphalane
had imputed stupidity on the decisions of the Courts. He had not.
second statement was again to be found in paragraph 7 of the opposing
affidavit, the part of it which said:
"........... but gives directive to the Court a quo as to what
it should do, which is our humble submission he has no such right of
demand unless the Honourable Court is his and the Honourable Court is
absolutely under his unfettered directives. (My underlining)
suggestion by the Respondent in the other part of the paragraph was
that the Applicant should have complied with the provisions of Rule 6
and that he had not. By not having done so as it was submitted, he
was said to be doing what is contended above. The matter of whether
he had complied with Rule 6 was still for argument in the main
application. Then there was no need for the rude manner in which the
Respondent put what otherwise ought to have been a factual statement
as to what the requirements of Rule 6 were and the way in which the
Applicant had failed to comply therewith. This was clearly vexatious
and in every way objectionable under Rule 29(5). Because there was no
way in which a suggestion could be gathered that the Applicant was
giving the Court any directives.
another statement. In paragraph 8 the following averment was to be
found and it said:
"I do not understand the criticism or rhetoric of the 1st
Applicant as to what one might understand to mean the Honourable
Judge of the Court a quo does not understand English Language and
therefore did not understand and appreciate what he was saying,"
at the Applicant's papers. I could find no suggestion nor insinuation
in any remote sense that the Judge did not understand English
language. That this was irrelevant, argumentative, superfluous,
scandalous and vexatious was beyond question.
following statement in paragraph 10 of opposing affidavit also came
under attack. It had been said that:
"I further humbly submit this is an outright defiance of not
only the judgment of Monapathi J but even trial of the Court of
Appeal. Does he have the right to do so."
one I admitted in favour of the First Respondent, a doubt that there
was merely unnecessary superfluity in that statement. Indeed what was
sought to be argued was a point that there had been deliberate
non-compliance by the Applicant. Except that the word 'defiance' is
the kind of stuff that practitioners would loosely fire from the bar.
Not much or anything could be said to be uncivil about it.
Nevertheless this was unnecessary to put in that statement which was
in a form of argument. That is precisely what the Rule 29(5) goes
advance an opinion similar to above with regard to what was found in
paragraph 10 of the opposing affidavit. It was therein stated that:
" I further humbly submit 1st Applicant is making himself a
judge and interpreter of Court judgment. He is in outright defiance
of the process of the High Court and Court of Appeal."
is an explanation which negatives mala fide and the Court can be
satisfied that there is no prejudice which cannot be remedied by an
award of costs a court should to my mind incline towards assisting a
party to put his case before court. This comment was certainly not
directed at what was said in paragraph 13 of the founding affidavit.
There had been no suggestion of anything calling for the above
comment. It should accordingly have had no place in an affidavit.
of what was alleged to have been offensive and against Rule 29(5) was
in paragraph 12 in which it was said:
"I humbly submit Applicant should not be allowed to defy Court's
judgments if they go against him, or he should be made a Judge of the
High Court and of the Court of Appeal."
certainly bordered on being insolent. Most objectively it was rude.
Mr. Mphalane told me he had no ambition of being a judge and that
this unfounded turgid talk made him unhappy most of the time.
used the word "objectively" above to indicate my
observation that once Mr. Monyako was called to account, that is in
his reply to almost all aspects of the application. I sensed no
malice nor intention to injure nor anger. The recurrence of ranting
and uncontrolled statements was nevertheless a cause for concern on
my part. As confirmation of a trend or a state of mind of
Respondent's Counsel I thought it should not go unpunished. The
statements used by Mr. Monyako for Respondent were most of the time
of a turgid kind. This means they were unnecessarily:
"Swollen, inflated, enlarged, pompous bombastic" Concise
in a way that has no place in an affidavit. I felt however that this
was a case may be a borderline one where a striking out ought not to
be ordered for the reason that there was no prejudice.
I said I
agreed that Mr. Mphalane would not be able to reply to the
statements. They called for no reply. They did not refer to any
factual situation nor to set legal principles or positions. It meant
that Mr. Mphalane was not able to show prejudice. In this regard to
rule 29(5)prejudice would mean whether or not he was disabled to
promote his claim or defend a claim against him. He was not able to
demonstrate any prejudice but what was found in the offending
paragraphs ended up being serious mischief or abuse of process.
speaking about an almost similar set of circumstances in JONES v JOHN
BARR & CO. (supra) Margo J said at page 296 F-G
here again no prejudice has been shown and the application to strike
out therefore fails.
approach does not mean that a party may introduce scandalous, or
vexatious or irrelevant or otherwise inadmissible allegations with
impunity, or that Rule 6(15) encourages laxity in that regard.
Depending on the circumstances the Court may make an appropriate
order as to costs against a party who offends in this way, even
though no prejudice is caused to the other party by such
allegations." See also PAROW MUNICIPALITY v JOYCE AND MACGREGOR
LTD 1971(3) SA 937 (CPD) at 939 C - D. See also THE CIVIL PRACTICE OF
THE SUPREME COURT OF SOUTH AFRICA 4 ed M Dendy on pages 500 - 501
the robust approach. For application for striking out of irrelevant
material see FREE PRESS OF NAMIBIA (PTY) LTD vs CABINET,
GOVERNMENT, SWA 1987(1) 614 at 651 F-G. I respectfully agreed most
entirely with the remarks in above authorities. They have guided me
in my conclusion.
Monyako's only arguable point had been that the Applicant should have
gone to the extent of showing in each statement, and statement by
statement, whether it was either of those offences contained in Rule
29(5). I thought that was not necessary. It was enough if in the end
a statement was met by anyone of the offences. That was all about Mr.
Monyako's response . It showed a distinct lack of conviction which
could only have been evidence of carelessness in his attitude rather
considered that in all the circumstances this was an instance where I
would not strike out the offending passages but that the First
Respondent must pay the costs of this application.
Applicants : Mr. N. Mphalane
Respondents : Mr. A.T. Monyako
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