CIV/T/126/86

IN THE HIGH COURT OF LESOTHO

In the Matter of :-

M.M. GENERAL ENGINEERING AND BUILDING CONTRACTORS

THOLLY MONAHALI

JUDGMENT

Delivered by the Hon. Acting Chief Justice J.L. KHEOLA
on the 30th day of June, 1986.

On the 26th February, 1986 the plaintiff filed in the
Registrar Office a summons in which he claimed against the defendant:

1. 
   The payment of the amount of M2,135-58;

   
   

2. 
   Interest at the rate of 21% per annum;

   
   

3. 
   Costs of suit.

   
   

On the 1st April, 1986 the defendant took an exception
to the plaintiff's summons on the ground that it lacks averments
which are
necessary to sustain an action in that the summons does not
disclose cause of action for the amount of M2,135-58.

/Rule....

-2-

Rule 18 (5) of the High Court Court Rules, 1980 provides
that the summons shall contain a concise statement of the material
facts
relied upon by the plaintiff in support of his claim, in
sufficient detail to disclose a cause of action. It is common cause
that
the summons in this case does not contain any concise statement
referred to in Rule 18 (5). However, Mr. Hlaoli, for the plaintiff,
submits that Rule 18 (5) must be read with Rule 21 (1) which provides
that within 14days after service upon him of the entry of appearance
the plaintiff shall deliver a declaration,

I disagree. A declaration is an entirely different
pleading which serves a different purpose. It cannot be taken as
curing the defects
in a summons that does not disclose a cause of
action. In any case, the exception was taken long before the
declaration was filed.
The pleading or summons to which an exception
is taken as disclosing no defence or cause of action as the case may
be, must alone
be looked to (Puffett v. Fennell and Austin, 1906
E.D.C.6). A declaration is a detailed account of the nature of the
plaintiff's
claim and sets out the conclusions of law which the
plaintiff claims he is entitled to deduce from the facts therein and
a prayer
for the relief claimed.

Mr. Hlaoli further submits that the exception is bad in
law in that it does not afford the opposing party the opportunity to
remedy
the default. He referred to Rule 29 (3) of the High Court
Rules, 1980. The wording of the rule clearly shows that there is no
obligation
on the defendant to afford the plaintiff that opportunity.
He may do so if he pleases. In the present case the defendant elected
to except. I have seen no authority that he was bound to give the
plaintiff an opportunity to remedy the position.

/The

-3-

The authorities in South Africa seem to be that if a
pleading lacks averments which are necessary to sustain an action or
a defence
there is no obligation on a party to give his opponent an
opportunity of remedying the position (see The Civil Practice of the
Superior
Courts in South Africa by Van Winsen, third edition page
340).

In my view the exception must be upheld but not to the
extent that the whole action must be dismissed. As the plaintiff has
already
filed a declaration it seems to me that it would be a waste
of time to give it the opportunity of remedying a defect that has
already
been removed by the declaration. The defendant knows exactly
what claim he is facing. The summons shall be regarded as amended by
the declaration.

It was submitted on behalf of the defendant that costs
must be paid de bonis propriis. I do not think that this is a proper
case in
which I can order costs de bonis propriis. The attorney
omitted to insert important averments in the summons and that is
negligence.
The question is whether the omission amounts to gross
negligence for which this Court must punish the attorney. In my view
that is
not so. The exception is upheld with costs against the
plaintiff.

J.L. KHEOLA ACTING CHIEF JUSTICE

30th June, 1986.

For Plaintiff - Mr. Hlaoli
For Defendant - Mr.
Kambule