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CIV/T/213/98

IN THE HIGH COURT OF LESOTHO
In the matter of:

AARON LITHOKO Plaintiff

vs

TIKOE K. MATSOSO 1^st Defendant

NTJA NCHOCHOBA 2^nd Defendant

THE MINISTRY OF WORKS 3^rd Defendant

THE ATTORNEY GENERAL 4^th Defendant

JUDGMENT

Delivered by the Hon. Mr Justice M. L, Lehohla on the 28^th

day of June. 1999

As in CIV/APN/189/99 Dong Ping Hua & Another vs Zhang Tai

(unreported) it appears that in the instant matter the trust that this Court reposed on the High Court Staffs ability to transcribe the submissions made on 15^th June, 1999 and complete them before date of Judgment to-day has been most

2 unwittingly misplaced.

The plaintiff in the instant matter sues the defendants for M434 613-00 allegedly being a contract sum plus costs incurred while plaintiff remained on site until the official termination and rent payable on the hired equipment. The plaintiff also sues for costs of suit plus interest at the rate of 18%.

The Crown represented by Mr Mapetla gave notice to raise points of law in limine at the hearing of this matter, to wit, that:

"Defendants will except to Plaintiff's declaration on the following grounds:

1. There is no allegation that the contractor has executed and completed the works which would entitle it to payment in terms of the alleged contract. As such the declaration discloses no cause of action.

2. There is no allegation that the contract was unlawfully terminated
   which would found a cause of action against the government.

3. There is no allegation that a letter of demand was delivered to the
   office of the Attorney General in terms of the law and as such this
   action is prematurely instituted.

2. The plaintiff has no locus standi in judicio to bring this action in that there is no allegation in the declaration connecting him with the contractor."

Relying on Rule 29(2)(a) in response to the above sources of complaint by

3 the Crown Mrs Makeng-Mpopo cited the above Rule to the effect that

Where any pleading is vague and embarrassing, the opposing party, (sic) within the period allowed for the delivery of any subsequent pleading, deliver a notice to the party whose pleading is attacked, stating that the pleading is vague and embarrassing setting out particulars which are alleged makes (sic) the pleading so vague and embarrassing, and calling upon him to remove the cause of complaint within seven days and informing him that he if he does not do so an exception would be taken to the pleading".

I may just in parenthesis express my regret that the rule is embarrassingly ill drafted and some essential elements that would make for good diction are lost in unfortunate omissions. For all it is worth I am constrained to cite it verbatim as

follows :-

"Where any pleading is vague and embarrassing, the opposing party, within the period allowed for the delivery of any subsequent pleading, (sic) deliver a notice to the (sic) or plaintiff, as the case may be, may within twenty-one (sic) party whose pleading is attacked, stating that the pleading is vague and embarrassing setting out the particulars which are alleged makes (sic) the pleading so vague and embarrassing, and calling upon him to remove the cause of complaint within seven days and informing him that if he does not do so an exception would be taken to such exception".

It seems to me that in his attempt to respond to the points raised the plaintiff is barking up the wrong tree in thinking that the Crown in raising these points was attempting to act in terms of Rule 29(2)(a).

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What seems clear to me is that the Crown has acted in terms of Rule 29(1)(a) providing that

"Where any 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, may deliver an exception".

It seems to me that the Crown has complied with provisions of this Rule in that it delivered its exception within the time allowed for the delivery of subsequent pleading which in this case was on 4th August, 1998 in response to further particulars filed by the plaintiff on 3rd August, 1998 i.e. just the previous day.

Suffice it to say the plaintiff misconstrued the nature of the proceeding here and sealed his own fate by taking for granted that the Crown acted in terms of Rule 29(2)(a) and then attacking it for failure to act in terms of subsections connected with that section. The error committed by the plaintiff here is to embark on refutations of things never claimed or relied on by the Crown - things neatly backed up by authority which strictly doesn't apply inasmuch as Rule 2(1)(b) canvassed in Kutloano infra doesn't apply here.

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In brief the plaintiff invented or imagined the Crown's exception and

consequently conjectured what possible failures to meet the requirements of the particular exception the Crown would be confronted with.

It is amazing that so late in the day and without leave of Court the plaintiff in response to a notice given almost a year earlier and having realised that in such notice the question of the Plaintiff's declaration has been raised as exceptionable, should even purport as he did, to file Notice of Intention to Amend plus the accompanying Amended Declaration as late as 1^st and 2^nd June 1999 respectively.

The filing of both the Notice to amend and the amended Declaration is struck out as an irregular step.

The Learned Counsel for the plaintiff sought to rely on Kutloano Building Construction vs Matsoso and Others 1985-89 LAC p. 102 which is authority for the view that the main, purpose of subsection 29(1)(b) is presumably to prevent the respondent being taken unawares.

Indeed Schutz P. in the above authority stated as much and went further to state that another virtue contained in the sub-rule is to allow the respondent to

6 amend if he can. "Such inspirations of the sub-rule are no doubt excellent" he

remarked.

I take solace in the Learned President's caution couched in the following terms though :

"But in its turn it can become an instrument of oppression of a party faced by a bad pleading, if it is applied without regard to the circumstances". (My emphasis)

It is important that while leaning on Kutloano for support the context in which that case was decided should be borne in mind. It is as follows according as set out by the learned Appeal Court President:

" This is the extent of the defendants' compliance with Rule

29(1)(b) of the High Court Rules, which requires that 'the grounds upon which the exception is founded must be clearly and concisely stated'. In respect of both exceptions, in the court below, the plaintiff raised a point in limine for non-compliance with the sub-rule. The learned Judge declined to hear the point in limine and allowed the argument on the exceptions to proceed and dealt with the point in limine in the main judgment. I think that this may have been unfortunate. Before the exceptions were to proceed or not proceed, it was desirable that what I will call the 'exceptions to the exceptions' be decided to determine whether there were good notices of exceptions". Seepage 101 letters F-H.

In the instant case the proceeding is not bedevilled by what made the

7 Learned President demur in Kutloano. Here unlike there the point in limine or

exception raised is being dealt with without reserving the outcome thereon pending Judgment following finalisation of the main case.

It is necessary also to pay heed to the Learned President's words at p.103 that:

"I am afraid that my decision may smack of the triumph of formalism
over substance "

C/F Simmons, N.O. vs Gilbert .Hamer & Co. Ltd 1963(1) SA 897 where it is

stated that

" the present day tendency is away from formalism in

procedure and in the direction of assuring justice is done ".

In Amalgamated Footwear and Leather Industries vs Jordan & Co. Ltd 1948(2) SA 891(C) Herbstein J is cited at page 893 as having said :

"It seems to me that insofar as there can be an onus on either party on a pure question of law, it rests not upon the plaintiff but upon the excipient. It is the excipient who is alleging that the summons does not disclose a cause of action and he must establish that in all its possible meanings no cause of action is disclosed".

It is my opinion that the Crown has acted well within the confines of the above statement and in the process successfully discharged the onus cast on it as the excipient in the instant proceeding.

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Mr Mapetla for the defendants argued that no letter of demand was served

on defendants. Nowhere was it argued in response that such a letter was even written at all.

But Herbstein and Van Winsen in their invaluable works THE CIVIL PRACTICE OF THE SUPERIOR COURTS OF SOUTH AFRICA 3^rd Ed at p.99 say :

"In determining whether a demand is necessary in law or not a distinction must be drawn between the case where a demand is required as a safeguard in respect of the Plaintiff's cost of summons and where it is essential as a necessary part of the cause of action".

I am in no doubt that in the instant case it is. Because no date of payment was fixed it was even the more necessary to serve defendants with a letter of demand. At p. 100 the learned authors above say

" It seems clear the weight of authority is in favour of the

doctrine that where a date of payment has been fixed no demand is necessary".

The above statement serves as a good contrast. A further useful contrast is to be found on the same page where it is stated that

"It is not necessary to undertake any further examination of the authorities because it has now been settled beyond doubt by the Appellate Division in the case of Venter vs Venter 1949(1) SA 768 that no demand is necessary where the date of payment, although not

9 the place of payment, has been fixed".

By necessary implication where date of payment has not been fixed, as in the instant case, it stands to reason that a demand is a sine qua non condition to be fulfilled precedent to the issuance of summons.

Consistently with the above principle Herbstein and Van Winsen drive the point home at page 101 where in reference to the heading styled TO COMPLETE THE PLAINTIFF'S CAUSE OF ACTION they stress that

" where it is necessary to place the debtor in mora before

action can be taken against him, demand must be made".

The learned Authors go further to indicate that

" Where by statutory provision notice must be given of

intention to initiate certain types of legal proceedings against the Government, a provincial administration or other local body, the giving of the requisite notice is necessary, and in the absence of such notice the summons will be open to objection".

Compare and contrast with provisions of section 4 of the Government Proceedings and Contract Act of 1965 making it a requirement to allege that

"There has been a delivery of a notice in writing to the Principal Legal Advisor/Attorney General, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the delivery of such notice shall be a necessary

10 allegation in the plaintiff's summons or declaration".

The learned authors emphasise at page 103 that

" where a demand is a necessary part of the

Plaintiff's cause of action it is essential to plead that demand has been made".

In the instant matter this requirement has been breached.

Mr Mapetla also raised the legal point that the plaintiff has made no attempt to clarify or allege its or his status vis-a-vis the Contractor. No attempt has been made to explain who the plaintiff is vis-a-vis the Contractor who supposedly contracted with the defendants in terms of Annexure "A". This becomes even more telling when it becomes apparent that the plaintiff is a different individual from the Contractor. Summons reflects the plaintiff as Aaron Lithoko. But the Declaration does not say who the Contractor Lithoko Steel is in relation to the plaintiff. See paragraph 1 in Annexure "A" where Lithoko steel is mentioned as the Contractor. The Declaration simply says the plaintiff is a Mosotho Male resident at Ha Tsosane and nothing else.

I agree that on the above basis it is impossible to make out if the plaintiff has any locus standi in judicio. On this point alone the point in limine ought to stand.

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Thus the Court is of the view that because on either the question of lack of locus standi or that of disregard of the rule requiring notice of demand the plaintiff's case stands to fail, the point of law raised by the defendant ought to

succeed and the exception is thus upheld with costs.

JUDGE
28^TH June, 1999

For Plaintiff: Mrs Makeng-Mpopo
For Defendants : Mr Mapetla