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CIV/T/138/97
IN THE HIGH COURT OF LESOTHO In the matter between:
FELIX LEKHELA PLAINTIFF
and
HLOTSE HIGH SCHOOL DEFENDANT
JUDGEMENT
Delivered by the Honourable Mr. Justice T. Monapathi on the 12th day of April 1999
The Defendant had originally raised two special pleas to the effect that:
the action had been brought unlawfully to the High Court againstthe provisions of section 6 of the High Court Act.
the summons and declaration did not give rise to a course ofaction in as much as on the summons plaintiff based his right ofaction on breach of a contract where the declaration referred onlyto unlawful dismissal.
Argument in Court revolved around the second plea, the first plea having been abandoned.
These two claims (in a combined summons) that is the one in the summons and
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the other as contained in the declaration were said to be different but not claimed in the alternative. And that was irregular as Counsel for Defendant Advocate Makotoko submitted. He took the point that it would have made sense if the two claims had been made in the alternative and reflected thus in the summons and declaration. But the problem had arisen and existed in as much as the summons should have indicated both claims in the alternative and the declaration should have indicated that much. Since this was only a single claim that was being prosecuted a clarification should have been made concerning this perceived difference. Hence the special plea.
The prayer (a) of the summons read as,follows:
"Payment of damages for breach of contract in the amount of M47,800.00".
It was common cause that the summons were drawn on unspecified date in March 1997 and were filed on the 11th April 1997. The declaration which was part of a combined summons was drawn of the 10th February 1997 before the date when the summons was drawn and seems to have been filed on the 11* April 1997 as well because it bore no other date stamp and seemed to have been filed together with summons. The declaration however made no reference to any breach of contract but only spoke about unlawful dismissal. In fact paragraph 10 thereof contained a prayer for payment of M47,800.00 and it did not by itself say exactly what the amount was for. Paragraph 9 indeed however, explained that Plaintiff had suffered damages as a result of the unlawful dismissal in the amount of M47,800.00.
I observed clearly that the Defendant was as keen as long ago as the 19th August 1997 to resolve the problem of what it suspected was a conflict of claims or an irregularity of some kind as to the contents the summons as against what was contained in the declaration. This it did by filing a request for further particulars on Plaintiff's Counsel. These requested particulars were, in my view, very pointed and relevant to what later became the issue that was addressed in argument. In paragraph 1(a) it was asked whether Plaintiffs case was based on breach of contract. In 1(b) it
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was asked about which clauses of the contract was allegedly breached. This request went even further because in paragraph 3 of request AD PARAGRAPH 7 of the declaration it was asked if it was Plaintiff's case that his dismissal was unlawful or that his action was based on breach of contract.
I repeat that it showed that the Defendant was anxious to resolve the gray areas as early as when it made the request for further particulars. The outcome of these requests was that, in almost all the answers, the Defendant was referred to the declaration. In no way did the supplied particulars attempt to reply issuably to the questions. In one instance the response was: "Please study the declaration". This clever posturing which has the effect of either intimidating or completely distracting the opponent from the real issues cannot justly conduce to resolution or investigation of real or substantive issues. The instant matter is a good example. I did not see how with any degree of justification the Plaintiff avoided answering:
"(a)
(b)
Was the agreement verbal or written
if written a copy thereof requested"
By referring the Defendant to the declaration as he did, and for that matter with regard to the whole request "AD prayer (a) of summon", it became most unsatisfactory and unacceptable. These unhelpful particulars were served on the Defendant on the 11th September 1997.
The Defendant said that on the 3rd December 1997 it was served with a notice to file plea. It consequently served Plaintiff's Counsel with the plea on the following day. When a question was asked as to why the Plaintiff was not compelled to furnish the particulars. Counsel said he was put under pressure by the notice to file plea. This was difficult to believe inasmuch as that notice came a good one and half months after the Plaintiff's response to the requested particulars. What was underlined was that a further attempt to cure the problem that the Defendant later encountered could have
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been made by an application to provide further and better particulars or a notice to compel. Here persistence was required in the personal skill of Counsel as an administrator and an advocate.
The problem that the Defendant encountered came by way of a point of law raised by Mr. Teele in defence to the special plea that fell for argument as aforesaid. The point taken was a development around the difficulty that the Defendant had had in not being able to clearly characterize his special plea as an exception proper (vide Rule 29(1) or as an exception that is taken in terms of Rule 29(2)(b) where a party had been requested to comply in terms of Rule 29(2)(a). The special plea appeared all the same to be akin to an exception and I treated it as an informal exception. Authorities are clear that:
"An exception can be taken to a pleading (1) if it is vague and embarrassing or (2) if it lacks averments necessary to sustain an action or a defence as the case may be."
(See THE CIVIL PRACTICE OF THE SUPREME COURT OF SOUTH AFRICA van Winsen et al 4th edition, M. Dendy "Herbstein and van Winsen" at page 487) The precision with which our two rules are couched and the time limits imposed therein will be obvious when the two rules are quoted in full which I proposed to immediately. They read:
"29(1)(a) where a pleading lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party within the period allowed for the delivery of any subsequent pleading, deliver an exception.
(b) The grounds upon which the exception is founded must be clearly and considerably stated.
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29(2)(a) Where any pleading is vague and embarrassing the opposing party within the period allowed for the delivery of any subsequent pleading deliver a notice to the (defendant) or the plaintiff, as the case may be within twenty one days to the party whose pleading is attached stating that the pleading is vague and embarrassing setting out the particulars which are alleged to make 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.
(b) If the cause of complaint is not removed to the satisfaction of the
opposing party within the stated time such party may take an exception to the pleading on the grounds that it is vague and embarrassing. The grounds upon which this exception is founded must be fully stated." (My underlining)
in both rules 29(1 )(a) and 29(2)(a) the offences envisaged are clearly stated namely,
firstly a pleading must lack averments "and d secondly the pleading must be" vague
and embarrassing ". I noted that the Defendant found it difficult to place its attack as specifically belonging to one and not the other. This was because the two rules painfully called for a choice. The Defendant may have been unprepared despite the theoretical solidness of its attack. Firstly, it had said that the summons did not give rise to a cause of action while the Heads of Argument enlarged the issue so as to relate to and adopt a complaint which appeared to be one of vagueness and embarrassment. To show that the Defendant was on the theoretically right footing I outline as follows Counsel's submission' which correctly, as I observed, showed the general principles. The question would still be whether they could answer the pertinent question of
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Summons must set out in concise terms plaintiffs cause of action. The question to ask was whether or not the Plaintiff could allege one cause of action in the summons and a different one in the declaration. In answering that Counsel referred me to the book BECK'S THEORY AND PRINCIPLES OF PLEADING in CIVIL ACTIONS 5th EDITION by Isaacs (BECKS) at page 44 where the learned author said:
"The combined summons must contain all the formal matters referred to in the Ordinary Summons. In addition it must have annextures setting out a statement of all material facts relied upon by plaintiff in support of his claim. This statement must comply with all the rules relating to the declaration". (My underlining)
and to pleadings generally. The above quotation clearly shows that the declaration must contain averments which support the claim contained in the summons. It was submitted that this meant that the declaration could only be a basis of the claim contained in the summons which must be convergent with not conflicting or different from what is claimed in the summons which contains the cause of action.
The learned authors of Beck's (supra) state further at page 46 of their work that:
"The cause of action must be clearly set forth by averments of the notice extent and grounds thereof and must clearly appear whether the action brought is in contract or in tort, whether it is for breach of special agreement or negligent discharge of a duty". (My underlining
Failure to bring about the desired consistency can only result in the combined summons being vague and/or embarrassing. That is the conclusion that the learned authors of BECK'S reach at the end of the above quotation when they said:
"It is embarrassing to frame a cause of action on tort and breach of
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contract mixed up together and not alleged separately in the alternatives." (My underlining)
It says the same thing that inconsistent claims may be pleaded in the alternative but alternative claims must be pleaded with some clarity as if they stood alone. I thought it was logical to observe that an "impression" of discordance exists in that the Plaintiffs summons speaks about breach of contract while the declaration speaks about damages for unlawful dismissal. I would further observe that a claim for contract in order to coexist in the same summons and declaration with a claim for damages which are for unlawful dismissal if it is a delict or tort can only be claimed in the alternative unless the damage can be characterized as contractual. That damages for unlawful dismissal are contractual could be an answer to one aspect of the intricate inquiry about which I should say very little now.
We now have had enough of the background. If I have understood Mr. Teele's main submission well it is that the problem before this Court is not a resolution of whether or not the Plaintiffs combined summons was vague and embarrassing, which it may indeed turn out to be. But it is whether the Plaintiffs defence to the exception was a good one. The defence being that the exception could not properly be filed under Rule 29(1)(a) but ought to be filed under Rule 29(2)(a) have first complied with the steps prescribed in the latter rule where a combined summons was alleged to be vague and embarrassing. I understood the cases cited by the Defendant's counsel (for the excipient) namely BERTRAM v BARIS 1926 AD 30 and HOPDAY v ADAMS 1949(2) SA 645(c) were only helpful to show the circumstances under which are exception can successfully be taken. That is firstly where the allegations and contentions on which a claim was based were not stated. (BETRAM'S Case). And secondly where facts were not stated to support an alternative claim which was held to be excipiable (HOPDAY'S case).
8 These exceptions taken in the two mentioned South African cases could have
been taken without firstly resorting to a notice affording him an opponent an opportunity of removing the cause of complaint because that was the practice prior to the introduction of uniform rules in South Africa. Booysen AJ shows the present practice in the Uniform Rules of Court where he said, in DURBAN PICTURE FRAME CO. (PTY) LTD vs JEENA AND ANOTHER 1976(1) 329 at 334GH, that:
"Where the complaint is that facts essential to sustain the course of action or define have not been alleged the opponent may except on that ground. Where the complainant is however that a pleading is vague andembarrassing the opponent may not except without further ado. He isobliged in terms of Rule 23(1) to give the pleader on opportunity to curethe vagueness and embarrassment ".
The rule 23(1) is couched in similar terms to our Rule 29(2). The above case has persuaded my decision
In setting out the brief history of the matter I have avoided and I will avoid commenting on the merits as much as possible except by showing principles raised and as little as possible except the application our two rules relating to the taking of an exception. As it has been made clear by now there was a need for particulars to have been furnished and not to have been rewarded with the calculated reticence by the Plaintiff. This should have been done to give information not as vague and of indefinite
9 character as that contained in the combined summons as I have unavoidably observed
in my comments earlier in the ruling. It would however be too prejudicial and indeed dilatory to reverse the proceedings to that earlier stage (of request for particulars) even if it would be in combination with the notice in Rule 29(2)(a). The latter is a practice sometimes adopted in South Africa (See DURBAN PICTURE FRAME case (supra) at page 334 F-H)
I had to conclude that a case has been made out that the Defendant's complaint was about the nature or structure of the Plaintiffs combined summons and more particularly about the contents of the summons vis-a-vis the contents of the declaration. That both exhibited, on the surface, a vagueness and embarrassment of the nature that I have outlined earlier in this ruling. That this was so at least when the test of whether the summons was congruent or consistent with the declaration was employed. And indeed at that technical level. Hence it is a matter that can be remedied.
It might later be revealed that what has been discovered as vagueness and embarrassment is purely technical and not a matter of substance. This I have avoided addressing more especially as Counsel were not invited to argue over. On the other hand, without prejudging anything, the matter may turn out to be material and important as the matter develops in the way I will direct. For example it might be that the claims or the claim is in reality consistent in the summons and declarations and they contain:
'(a) a contractual causes of action, being for performance or non performance under a contract or for damages arising
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a delictual cause of action, being a claim based on delict,whether the delict has negligence or intention as aningredient or not.
A statutory cause of action which has as its basis firmly insome or other statutes. See also WELLWORTHSBAZAARS LTD vs CHANDLERS LTD AND ANOTHER1948(3) SA348(T)
The above considerations appear to be at the root of a proper debate when the root exception proper will be argued. Perhaps that moment may not arise. A proper debate will not be this question whether the exception ought to be treated under Rule 29(1) or Rule 29(2) because it is excipiable but whether the claim is excipiable because it raises a substantive question of law which has the effect of settling part or the whole of the dispute between the parties by extinguishing that part or the whole of the claim. See remarks of Benjamin J in COLONIAL INDUSTRIES LTD vs PROVINCIAL INSURANCE CO. LTD 1920 CPD 627 at 630. An exception can still however be taken to protect oneself against embarrassment. (See WILSONS v SOUTH AFRICAN RAILWAYS AND HARBOURS 1981(3) SA 1016(c)
In my opinion, it cannot be conducive to a just resolution of this dispute if the Plaintiff was allowed to proceed with the claim, which my turn out to be badly drawn or
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unfair to the Defendant, without giving both parties an opportunity to remedy any defects due to insufficient facts in the pleadings (facta probanda), which, may give rise to either of the two grounds that make pleadings expiable as the case may be. It may appear to give advantage to the Plaintiff but none is given because his claim will oncemore be scrutinized. Admittedly there will be delay. It may appear to give advantage to the Defendant. Yes, in the form of an opportunity to exact the Plaintiff's claim although the Defendant may have failed to proceed with his exception. And yet, again to the Defendant's advantage he may yet have to proceed with its exception under either of the two rules. I am satisfied however that what I strived to achieve is the ventilation of substantive issues which can only be towards the justice of the matter. This I do by directing things in the only way that substantive remedies will be easier to reach.
As matters stand it would not be conducive to the justice of the matter if proceedings are discharged or dismissed on the basis of an exception. Neither would it be conducive to the justice of the matter if Plaintiff was not allowed an opportunity to
amend the proceedings where he can to bring about" the completeness which would
be required in the higher Courts" And it must appear with reasonable distinctness
so that the defendant may know the case he has to meet." See LIQUIDATORS WAPEJO SHIPPING CO. LTD vs LURIE BROTHERS 1924 AD 69 at 74. To me that was the motivation for the Order I will make. That the Defendant may have already pleaded over can only be partly satisfactory but it is not complete.
I made the Order that the Defendant be allowed to proceed to give a notice in
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terms of Rule 29(2) with effect from the 16th April 1999 from which the twenty one days
will count. The Defendant's plea be uplifted and new one to be filed in due course. Costs will be costs in the cause.
T. MONAPATHI JUDGE
12th April 1999