1

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).

4

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.

5
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.

8
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.

11

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