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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 12^th day of April 1999

The Defendant had originally raised two special pleas to
the effect that:

1. 
   the action had been brought unlawfully to the High
   Court against
   the provisions of section 6 of the High Court Act.

   
   

2. 
   the summons and declaration did not give rise to a
   course of
   action in as much as on the summons plaintiff based his
   right of
   action on breach of a contract where the declaration
   referred only
   to 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 11^th
April 1997. The declaration which was part of a combined summons was
drawn of the 10^th 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 19^th 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)

3. 
   Was the agreement verbal or written

   
   

4. 
   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
11^th
September 1997.

The Defendant said that on the 3^rd 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 4^th 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

6 characterization posed by the two rules.

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 5^th 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 and
embarrassing the opponent may not
except without further ado. He is
obliged in terms of Rule 23(1)
to give the pleader on opportunity to cure
the 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

10 from breach of a contractual obligation. Or

2. 
   a delictual cause of action, being a claim based on
   delict,
   whether the delict has negligence or intention as
   an
   ingredient or not.

   
   

3. 
   A statutory cause of action which has as its basis
   firmly in
   some or other statutes. See also WELLWORTHS
   BAZAARS
   LTD vs CHANDLERS LTD AND ANOTHER
   1948(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 16^th 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

12^th April 1999