IN THE HIGH COURT OF LESOTHO In the matter of :
MARCELLUS BOFIHLA NKUEBE Plaintiff
vAFRICAN CAR HIRE(PTY)LTD Defendant
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
7th day of February, 1992
There are two matters which call for the Court's
decision in this proceeding.
The first matter consists in the Notice of Exception
filed on behalf of the defendant wherein the excipient challenges the
intendit on the grounds that this intendit and the
further particulars sought to support and amplify it do not disclose
necessary to sustain the plaintiff's action. See page 129
of the compiled record.
The next matter set out at page 133 is a Notice of
Application failed by the plaintiff seeking an order of Court to set
defendant's notice of exception on the ground that it is an
irregular step as having been filed out of time. However Mr.Matsau for the plaintiff brought to the Court's attention
that as shown in his heads the plaintiff is no longer pursuing his
to set aside the notice of exception on the basis of
being out of time. The proceeding was accordingly argued on the
basis of the exception before Court.
The notice of exception was received by the plaintiff's
attorneys on 4th March 1988 and filed of record in the Registrar's
on 7th March 1988. The notice of application to set this aside
was filed and served on both the Registrar and the defendant's
on 10th March 1988.
It being common cause that the application to set aside
the exception stands to be dismissed the question was raised by Mr.
Matsau in response to Mr. Edeling's prayer that the
dismissal be with costs whether this would be proper in view of the
delay that the defendant incurred before moving
its exception. Mr.
Matsau pointed out that the exception was grossly out of time.
The papers reveal that an appearance to defend was filed
on 26-10-87. On the same day a request for further particulars was
and filed. The reply was served on 12-11-87. The exception was
only served on 4th March 1988.
While conceding that the application to set aside the
exception was itself bad in law and ought to be dismissed simply
was not preceded by a notice of bar, Mr. Matsausubmitted that authorities seem to support the view that where
there is a delay of the type reflected here, where the successful
has not taken a step that should have properly been taken
before the end of a trial thus resulting in unnecessary lengthening
the case, the Court is at large either to deny the successful
party costs in toto or in part.
I was not furnished with any authorities in support of
this view. The Court however asked Mr. Matsau
" but what do I make of the other party's
failure himself to take a legitimate step of barring
someone who delays tendering his plea in terms of the rules??"
"Hence I say in such an instance the Court may
award a portion of. costs; maybe say you are going to pay so much
the costs because of your application, but because you
were also late in bringing this exception to Court, although you were
barred, I say you lose a certain percentage of the costs".
It seems to me that the Court is obliged to decide
simply whether the application to set aside the exception is good or
bad. Or better
still whether the exception is in time or out of time.
If it is out of time then the defendant is not entitled to proceed
exception. On the other hand if it is in time the plaintiff
is not entitled to object to the costs.
Reference to Rule 29 dealing with exceptions shows that
it is permissible to serve an exception within the period allowed for
a subsequent pleading.
It would seem then that where as in this case summons,
request for further particulars and further particulars have been
next pleading to file on the defendant's side is a plea.
But the rule provides that if the defendant is still entitled to file
plea he can file an exception instead of the plea. The logical
extension of this proposition is that failing a notice of bar the
Plea stands to be filed for indefinite time. In a
nutshell it seems that as long as the defendant is not out of time
he is allowed to except.
It should then be clear that absence of bar is the bane
of the plaintiff's case because in trying to test the rule by resort
the Court asked Mr. Edelinq
"Supposing then there is no bar, can you be held
likely to be perpetually going to legitimately plead even after
failing to do
so over a quarter of a century?"
Mr. Edeling's answer was yes. He elaborated
however that there is only an automatic bar in regard to
replications. Thus if a party does not file
a replication within a
certain time after the plea then he is barred from doing it. But with
regard to normal pleadings such a plea
it appears the rule provides
that it should be filed within 14 days, but if a party does not do it
he is still allowed to file it
on day fifteen or, according to Mr.
Edeling "day sixteen or day a hundred and six".
Indeed a Full Bench decision in Tyulu & Ors vs
Southern Insurance Association 1974(3) 726 by Eksteen J.
now an Appeal Court Judge lays down that
"An exception is a pleading and, in the case of an
exception to a declaration as disclosing no cause of action or as
and embarrassing i.e. in a case which no automatic bar
comes into effect, a notice of bar is required in terms of Rule of
before the plaintiff can object to the exception on the
ground that it was filed out of time".
For Rule of Court "26" loco citato read
"29" in relation to
our Rules.It would have stood the plaintiff in good
stead if his application had been withdrawn long before Counsel
arguing the defendant's
case had been briefed for then no costs for
arguing this application to dismiss the exception for being out of
time would have been
incurred. But as it is the withdrawal has come
later than even at the proverbial eleventh hour.
Without any hesitation in dismissing the application to
dismiss the exception as irregular I order that costs be awarded to
Coming to the exception proper then one sees at page 6
of the Record that there is an agreement between African Car Hire and
I am informed that African Hire also trades as Hertz
This defendant operates a car rental system. It has cars
at many airports and stations. Businessmen wishing to hire cars go to
The Court was told that Hertz obtained a licence from
Hertz International. The latter gave Hertz South Africa a licence or
the right to use the name. In consideration of this Hertz
South Africa had some obligations to meet. These included the
to render decent service, keep good cars so as not to
destroy the goodwill of Hertz International etc.
The agreement at page 43 would appear then to be a
sub-licence because Hertz gives the plaintiff a licence to use
Hertz's name in
Indeed Clause 1.3 says
"this licence shall be in respect of the area
comprising the magisterial area in the town of Maseru".
At page 6 it is spelt out that African Car Hire is the
licensor and the plaintiff is the sub-licensee who is granted the
right to use "Hertz system" see 1.1.
Mr. Edeling urged that it was important to
realise that this business is not a branch of the South African one.
It is a completely separate
business. But the local one is simply
getting licence to use the name and the system.
Page 8 highlights and gives support to this contention
for the foot of that page shows that the licensor's obligation would
"give the sub-licensee benefit of its knowledge in
of the sub-licensee's vehicle renting business".
The clause inside the quotation marks above makes it
plain that the Maseru business is exclusively the plaintiff's.
At page 6 it sets out the structure of the agreement.
Paragraph 1 is the grant of the licence. Paragraph 2 indicates bat
of the agreement is going to be, namely 1st October 1984
to 30th September 1985. Paragraph 3 is the joining fee of R2500 which
not refundable. Paragraph 4 relates to consideration while
paragraphs 5 and 6 relate to the respective obligations of the
and the licensee.
The licensor's obligations entail supplying the
plaintiff with signs and advertising material including a plan all of
which are to
accompany the requirement to give him the benefit of its
knowledge and help train the plaintiff's staff.
The licensee's obligations are contained in a clause
"The sub-licensee shall be bound by any obligations
imposed on him under the system, and shall at his own expense follow
Mr. Edeling invited the Court to pay particular
attention to the phrase "at his own expense" appearing in
the clause just quoted.
Paragraph 5.5 of the licensor's obligations makes
mention of the fact that it must give such assistance to the
sub-licensee as the
latter may reasonably require other than
financial assistance. It would seem therefore that financial
assistance is specifically
excluded from the form of assistance
envisaged by the Clause just referred to.
This gives further clarity and substance to the
submission that although the Hertz's name is going to be used in
Maseru as it is used
in South Africa, the two brands of Hertz in
these respective places are two separate brands of businesses.
Paragraph 6 relates to the hours that are to be kept and
the place where the stationery is to be bought by the sub-licensee
the requirement that his staff should dress properly and
the advertisements be properly carried out.
The crux of the matter seems to consist in paragraph
6.10 which stipulates that "the sub-licensee shall accept and
cards that the licensor shall from time to time
It was argued by Mr. Edeling that although
paragraph 6 with regard to the licensor's obligations says nothing
about charge cards or about refunding anything related
thereto yet at
page 127 the plaintiff in his amended intendit seeks to introduce
these factors summed up in the phrase "the
copy of the agreement
is hereunto annexed marked 'A'".
One does look but in vain for a clause in the copy of
agreement that supports the plaintiff's assertion at page 127.
The plaintiff sets out in paragraph 4 at page 127 what
he says is the agreement entered into. It is a long paragraph but in
it conveys the impression that the parties agreed that if the
plaintiff rented his cars to customers using Hertz's credit cards or
Hertz's rent-a-car voucher or a travel agent voucher, then the
plaintiff would send these things to the defendant in Johannesburg
and the defendant must pay.
It would seem therefore the plaintiff relies on
paragraph 4 as the paragraph which constitutes the agreement upon
whose breach by
the defendant he is going to sue the latter because
at paragraph 5 page 127 the plaintiff says the defendant owes him M22
in respect of customers who utilised his credit cards or his
rent-a-car vouchers etc, that in terms of the agreement they were
the defendant for payment, and that in spite of demand
the defendant is unable to pay that.
. In brief therefore plaintiff says in paragraph 4 the
items spelt therein are the defendant's obligations. In paragraphs 5
the plaintiff complains that the defendant has breached those
obligations and therefore it must,pay him that money.
Coming then to the question of request for further
particulars it becomes fruitful to refer to page 29 and 30 paragraph
"The precise nature and extent of those rights and
obligations which make up or form part of the 'exclusive right to use
system' conferred on plaintiff in terms of Clause 1.1 of
Annexure 'A' is required and plaintiff, in regard to such rights and
is further required to state :
whether they were agreed expressly or impliedly
if impliedly, the facts or circumstances givingrise
to such implied rights and\or obligations
if expressly, whether such rights were agreedverbally
or in writing, precisely when, whereand by whom on behalf of the
parties and, ifthere were agreed in writing, a copy of
In response to the request set out above the plaintiff
at page 39 of the record states that
"the rights and obligations are expressed in the
written agreement. With respect to (b) and (c) he says see the
Thus it is clear he is not relying on any implied terms.
Nor is he relying on any oral agreement for he limits the answer to
At page 33 it was made plain to the plaintiff at 2.4
"the full and precise material terms of the
agreement are required and, if in writing, a copy thereof is
It should be borne in mind that at page 127 paragraph 4
the plaintiff stated that there was an agreement in terms of which
were sent to the defendant who was to remit the payments.
Paragraph 5 says the defendant actually breached those obligations.
At page 33 the plaintiff is properly asked : "in
regard to that agreement that you are relying on, was it oral or in
At page 40 the plaintiff answered that this was in
writing for he said it was in terms of Clause 6.10 of the written
again he is not relying on an oral agreement.
Going back to page 33 questions 2.3 and 2.4 the
plaintiff is asked "precisely when and where was the agreement
full and precise material terms of the agreement are
required, and if in writing a copy is required". The plaintiff's
contained at page 40 simply says "please look at Annexure
MBN 1 the plaintiff's intendit". Page 6 reflects MBN 1 as the
It would appear from the above that each time the
plaintiff is asked any detail about the contract everything resolves
reference to the written agreement at page 6. Asked if
anything was oral he said no. Asked if it was implied again he
Such being the case it becomes obvious that all other
matters besides the written agreement are eliminated and the written
agreement becomes common cause between the parties.
Thus what the plaintiff is being told by the defendant
in terms of the exception is that the agreement in the amended
to by the plaintiff in paragraph 4 is nowhere to be
found in the written agreement relied on by him and which written
remains common cause between the parties in the absence
of any oral or implied agreements besides it. Thus in a nutshell it
made plain to the plaintiff by the defendant that he is
relying in terms of paragraph 4 page 127 on terms which don't appear
agreement at page 6.
Indeed comparing page 127 paragraph 4 with page 11
paragraph 6.10 one need but ask oneself are contents of these two
sets of paragraphs
the same or not?
Page 11 shows that the sub-licensee shall accept and
honour those charge cards that the licensor shall from time to time
However looking at page 127 one finds allegations by the
sublicensee which do not consist with the agreement at pages 6
because at page 127 paragraph 4 the licensee in his intendit
"it was agreed between the parties that plaintiff
would send original rental agreements in respect of customers who
from the plaintiff by using Hertz credit cards or
Hertz rent-a-car vouchers or Travel agents vouchers to the
billing section in Johannesburg and the
defendant's central billing section would remit
payments in respect of the aforementioned category of
customers to plaintiff in Maseru".
Looking at Clause 6,10 nothing is said about sending any
of the things mentioned above to a billing section at defendant's
office in Johannesburg. Nor is there to be found in any of
the clauses of the agreement at pages 6 to 11 any mention of payments
in respect of the aforementioned customers having to be remitted to
the plaintiff in Maseru from the defendant's billing section.
Page 127 paragraph 4 says there is an obligation on the
defendant to remit payments; but whatever obligations appear under
of obligations in Clause 6.10 of the agreement it seems are
the plaintiff's and not the defendant's obligations.
It would seem to me then that the exception was properly
taken for if there had been any implied or oral terms relied on by
then the defendant would have now to prepare for trial.
But the plaintiff said there were none. The written agreement is the
document to rely on therefore. It contains no implied terms. The
pleadings are devoid of any implied or oral terms. The question
remaining is whether the written agreement which is common cause says
what the plaintiff says it says or not.
I find it does not say what he says it says. Mr.
Matsau's argument has been very persuasive but has not come any
near upsetting the print in the written agreement. The exception
ought to be
upheld with costs. I do not think this is a mere
exception which according to set practice and time
honoured authorities should not be granted for the asking.
But because the exception sought if upheld is not always
the end of the road for the plaintiff the Court is persuaded that the
be given leave within thirty days to amend his case if so
advised. The intendit is set aside with costs and the exception
upheld with costs.
JUDGE 7th February, 1992
For Plaintiff : Mr. Matsau For Defendant : Mr. Edeling
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