CIV/T/669/87

IN THE HIGH COURT OF LESOTHO
In the matter
between:-

EDWARD LEMATSOE Plaintiff

and
RUSH & TOMPKINS B.V. Defendant

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 30th day of June, 1989.

On the 28th October, 1987 the plaintiff instituted an
action against the defendant in which he claims:

1. 
   Judgment in the sum of M47,500-00 as
   damages;

   
   

2. 
   Interest thereon at the rate of 11% a
   tempore
   morae;

   
   

3. 
   Costs of suit;

   
   

4. 
   Further and/or alternative relief.

   
   

In his declaration the plaintiff stated that he is the
owner of the following motor vehicles: G 0354, CFC 2858 and BFG 115T.
That

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during January, 1987 the defendant's employees (whose
further particulars are to the Plaintiff unknown) during the course
and within
the scope of their employment with the defendant in the
construction of Mohale's Hoek - Quthing public road wrongfully,
unlawfully
and intentionally damaged plaintiff's abovementioned motor
vehicles, six residential flats and one roundavel belonging to
plaintiff
at plaintiff's home at Mekaling.

As a result of the aforesaid damage plaintiff alleges
that he has suffered damages in the sum of M47,000-00 calculated as
follows:

1. 
   Damage to motor vehicles - M23,500

   
   

2. 
   Damage to buildings M24.000.

   
   

On the 26th January, 1988 the defendant filed a request
for further particulars in which it inter alia, asked for the
following:

(a) How exactly is the sum of M23,500-00 being
alleged
as damage to motor vehicles
arrived at?

Full particulars of the alleged damage done to each
motor vehicle are required.

(b) How exactly is the sum of M24,000-00 being
the
alleged damage to buildings arrived at?

Full particulars of the alleged damage done to each of
the buildings are required.

On the 3rd February, 1988 the plaintiff supplied the
further particulars in the following manner:

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(a) M8,000-00 in respect of vehicle CFC 2858.

M9.500-00 in respect of vehicle BFG 115T M6,000-00 in
respect of vehicle G 0354.

(b) M14,000-00 in respect of flats 1,2,3 and 4.
M
6,000-00 in respect of flats 5 and 6.

M 4,000-00 in respect of Rondavel.

The defendant was still not happy with further
particulars supplied and on the 11th February, 1988 it filed a
request for further
and better particulars in the following terms:

1. 
   An item by item specification of the exact
   parts
   damaged and the cost of repair thereof
   in respect of each of the
   motor vehicles
   allegedly damaged by Defendant's employees
   is
   required.

   
   

2. 
   An item by item specification of the exact
   damage
   allegedly done to Plaintiff's flats
   and rondavel by Defendant's
   employees, as
   well as the cost of repairing same, is
   required.

   
   

On the 17th February, 1988 the plaintiff refused to
supply the further and better particulars on the ground that they are
not strictly
necessary to enable the defendant to plead.

The present application is for an order to compel the
plaintiff to supply not only the further and better particulars
requested on
the 11th February, 1988 but also the market value of the
motor vehicles and the buildings prior to and after the alleged
damage.

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Mr, Mohau, counsel for the defendant, referred to
Rule 21 (6) (a) and (c) which provides that a plaintiff who sues for
damages must set out
particulars of his claim in such a manner as
Will enable the defendant reasonably to assess the quantity thereof;
in all cases the
particulars must be set out in such a manner as will
enable the defendant, if he so desires, to make a reasonable tender.

There are many decisions of the Courts of the Republic
of South Africa in which it was ruled that a plaintiff must, either
in his
declaration or in particulars subsequently furnished, give the
defendant sufficient information to enable him to decide whether he
ought to make a tender, e.g. Rosen and Engelstein v Hawkins,
1937 T.P.D. 410 at p. 414; Margau v. King, 1948 (1) S.A. 124
at p. 130 (W). But as Roper, J. pointed out in Reid, N.O. v. Royal
Insurance Co. LTD., 1951 (1) S.A. 713 (T.P.D.) at p. 717:

"They do not mean that when the plaintiff comes to
his damages he must set them out precisely under different headings
so that
the defendant may be able to ascertain exactly what sum he
must tender in order to escape liability for costs. What is required
is
that there shall be sufficient particularity to convey to the
defendant the ground, or where there are more, the grounds upon which
the claim is based, so that he may be able to decide whether he has a
good defence to a whole or a portion of the claim, and if not
whether
he ought to make a tender."

The plaintiff's claim is for damages to his motor
vehicles and to his buildings. The defendant wants to know the extent
of that damage.
With regard to the motor vehicles it wants to know
what parts were damaged and the costs of repairing or replacing such
parts. The
usual practice in this Court is to furnish the defendant
with a

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quotation by a garage or to attach receipts of the parts
which the plaintiff bought. A quotation from a garage has a great
deal of
evidential weight and may enable a defendant to make a
tender.

In the present case the plaintiff has just given figures
as damages to each vehicle without the particulars of how he arrived
at those
figures. I am of the opinion that that is not enough to
enable the defendant to make a tender, if he so desires. The
plaintiff has
even refused to furnish the particulars regarding the
market value of his motor vehicles prior to and after the damage
allegedly
caused to them by defendant's employees.

Regarding the buildings the defendant wants to know the
extent of the damage. Were walls and roofs brought down so that the
plaintiff
may have to rebuild the entire building? The market value
of the houses at the relevant time is required.

I am of the opinion that the particulars requested by
the defendant are necessary to enable it to plead or to make a
tender, if it
so desires - I make the following order:

1. 
   The plaintiff is ordered to furnish the
   defendant
   with the further particulars
   requested in paragraphs 1 (a), (b),
   (c)
   and (d) of the Notice To Compel dated the
   29th February,
   1988.

   
   

2. 
   The further particulars referred to in (a)
   above
   shall be furnished to defendant within
   thirty (30) days from the
   date of this judgment;
   and if the plaintiff fails to do so
   within
   thirty (30) days paragraphs 5 and 6 of his decla­
   ration
   shall be struck out.

   
   

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(c) The plaintiff shall pay the costs of this
application.

J.L. KHEOLA
JUDGE

30th June, 1989.

For the Plaintiff - Mr. Pheko
For the Defendant -
Mr. Mohau.