HIGH COURT OF LESOTHO
TSOLO MAKHELE PLAINTIFF
COMMANDER, LDF st DEFENDANT
MINISTER OF DEFENCE 2nd DEFENDANT
ATTORNEY GENERAL 3rd DEFENDANT
by the Honourable Madam Justice N. Majara on the 28 November 2005
defendants/applicants herein moved an application for an order as
aside the Notice to File Plea served by Plaintiff on Defendants'
attorneys on 24th August 2005 as being an irregular step
Plaintiff to furnish the Further Particulars requested by
the Plaintiff to pay the costs of this application.
and/or alternative relief.
14th November 2005 when this matter was argued before me, both
Counsel for Defendants/Applicants and Plaintiff/Respondent
the Court that the first prayer concerning the Notice to File Plea
had already been resolved and was not going to be pursued
the question of costs thereof.
application came about after the Applicants herein had served
Respondent with a request to furnish farther particulars 'in order
enable them to plead thereto.' Respondent refused to furnished the
requested particulars his reasons being as per the Opposing
of his Counsel. Mr Mohau, especially at paragraph 7 thereof that;
“ I admit that the requested particulars have been denied. I
aver that this has been so because they are not strictly necessary
to enable the Defendants to plead nor (sic) to make a tender in
settlement. I reiterate that Defendants do not seriously seek to
settle this matter. "
argument. Mr Molyneaux for Applicants submitted that the further
particulars are based on two (2) categories to wit. what
is the basis
of Plaintiff's claim and how the claim is made up i.e. what is the
contention that the requested particulars are strictly necessary to
enable them to plead and that in any matter issues ought
defined as early as possible in order to curtail the amount of time
of the proceedings.
his further submission that since Plaintiffs claim is based on
contract Applicants should know all the details such as what
salary was as a starting point so that they can admit what they can.
To this end he referred the Court to Rules 20 (4), 21
(6) (a) and 25
reaction, Mr Mohau for Respondent argued that whilst he agrees with
the submissions made by Applicants on the law, pleadings
do serve a
particular purpose and that in his plea Defendant has to meet
Plaintiffs averments paragraph by paragraph in terms of
Rule 22 (3).
His contention was that the request made by defendants was not made
to serve the purpose as envisaged under the Rules
that pleadings are not intended to give evidence but to lay down
issues for trial and that most of the questions in the
fit for purposes of cross-examination and not for meeting the
averments made in Plaintiffs declaration. He however
out of the seventeen (17)
in the request for further particulars, about five (5) merited any
serious attention and these are paragraphs 8, 9, 12.1,
14 and 16.
proceed to deal with the arguments made.
starting point, authorities abound on what is the function of
pleadings and the general principles and rules governing same.
Isaacs' Beck's Theory and Principles of Pleading in Civil Actions P32
pleadings are said to serve three (3) functions. These
are firstly to
ensure that that both parties know the points of issue between them
so that each knows the case (s) he has to meet.
The second function
is to assist the Court by defining the limits of the action with the
third being to place the issues raised
on record so that any judgment
given therein may be a bar to any possible future litigation by the
parties on the same issues.
At p 35
Isaacs (Supra) proceeds to state that pleadings 'should be framed
with separate and distinct paragraphs and so far as possible
paragraph should be limited to a distinct averment. ' (my
understanding of the position as stated above is that in his
declaration, all a plaintiff needs to do is concisely and distinctly
make averments each in its own separate paragraph in order to clarify
and delimit the issues so as not to cause confusion. It is
my opinion that likewise, when drawing his plea defendant should
respond to each separate averment as it has been pleaded
words at the close of pleadings, each party must reasonably
understand what the other's claim or defence is. What Courts
however warned not to do is to 'look at a pleading with a magnifying
class.' It should be sufficient that what the one has
averred can be
replied to by the other.
follows therefore that even for purposes of requesting particulars
each request should deal with the specific averment as it
the plaintiffs declaration for the same reason, i.e. to avoid mixing
issues and thereby causing confusion. The general
rules governing pleadings are equally applicable to both parties.
purposes of furnishing of further particulars and requests thereof,
the test which has been laid down in the case of South African
Railways and Harbours v Deal Enterprises (Pty) Ltd 1975 (3) SA p 944
at paragraph E is that;
"A defendant seeking an order for further particulars to be
supplied must satisfy the Court that without such particulars
be embarrassed in pleading; he must show that the plaintiff has
failed to deliver particulars "sufficiently"
in terms of
what is required, i.e. that particulars are lacking which are
strictly necessary to enable him to plead or to tender....
the said test herein and without necessarily quoting each and every
paragraph of Respondent's declaration and the corresponding
the request for further particulars I will only make reference to
some of them. This is in order to determine whether as
stand, Applicants are unable to plead so that Respondent should be
ordered to furnish the further particulars.
paragraph 1 of his declaration Respondent averred as follows;
"The Plaintiff herein is John Tsolo Makhele, an adult Mosotho
male of ha Mofoka, Maseru district. "
request for further particulars to this paragraph reads as follows;
"What is Plaintiff's date of birth? "
paragraphs 4 of the declaration Respondent averred;
"At all the material times hereto, the Plaintiff has been a
member of the Lesotho Defence Force, holding the rank of second
paragraph the request is framed as follows;
did Plaintiff join the Lesotho Defence Force?
Plaintiff obtain the rank of second Lieutenant?
the Plaintiff's salary, upon reaching the rank of second Lieutenant?
at paragraph 5 of the declaration it is averred as follows;
"On or about 9th September. 1997, Court Martial proceedings were
commenced against the Plaintiff ultimately resulting in his
conviction by the said Court Martial. "
request to this particular paragraph reads;
"With what offence was the Plaintiff charged? Of what offence
was the Plaintiff convicted? What was the date of these convictions?
basis of the above quoted paragraphs much as I appreciate that some
of the requested particulars might be necessary, they
have in my
opinion been made to the wrong averments which in this Court's
opinion could have been pleaded to without such further
It would have been different if they had been raised to relevant
averments in the declaration.
instance, in paragraph 1 as quoted above, Respondent gives his
particulars of who his is and where he comes from. A request
date of birth has nothing to do with applicants noting, admitting or
In other words, the further particular requested was not strictly
necessary for them to plead to it.
As I have
already shown above, the request that each averment should be made in
a separate and distinct paragraph is not applicable
to plaintiff only
but to defendant too because the main purpose is to as much as
possible separate the issues. This means that
even where defendant
requests further particulars, it should be for purposes of pleading
to the particular averment made.
regard to the request in casu, I am not convinced that the
particulars requested are strictly necessary to enable Applicants
plead to the averments made in the declaration. In my opinion,
Applicants could have ably either denied or admitted the above
averments even in the absence of the requested further particulars or
they should have at least put Respondent to proof
instance, if someone avers that at all material times they have been
in a particular employ, holding a certain position, surely
enough for the other party to either admit or deny. Asking for
details of when he was
and on what salary scale he was is therefore not strictly necessary
for purposes of admitting or denying same. Even for
making a tender, the said requests should not have been made
vis-a-vis those particular averments.
it was Mr Molyneaux's argument that Mr Mohau was adopting too strict
an interpretation to the procedure, I do agree with
interpretation especially in the light of the position adopted in the
South African Railways and Harbours Case (Supra)
p 947 which was
stated as follows:
formerly a plaintiff was obliged to furnish such particulars as were
"reasonably necessary" to enable the
defendant to plead or
tender, the position is now that such particulars are only required
to be furnished as are "strictly
necessary" for either of
the said purposes: the new Rule has restricted the scope of a request
for particulars to "absolute
essentials", (my emphasis)
perusal of both the declaration and request in casu, the requests are
made along similar lines as the ones I have already quoted
of time I do not think it is necessary for me to deal with each and
every paragraph separately. I believe the quoted paragraphs
good general picture of whether Applicants could strictly speaking
not ably plead to Respondent's claim. A large number
of them are as
Mr Mohau correctly submitted, not relevant to the elucidation of the
factual averment made in the specific paragraphs.
therefore believe that this case can be distinguished from that of
Tahan v Griffiths 1950 O.P.D 899 quoted to this Court wherein
basis of the plaintiffs claim was inter alia, that a car which she
wanted to return to defendant and be given another for the
that it was not roadworthy necessitated that she furnishes the
defendant with the particulars.
plaintiff had made a bare averment that the vehicle was not
roadworthy. The Court ordered her to furnish the particulars
requested i.e. in what respect the vehicle was not roadworthy.
as I have already mentioned, the requested particulars are not in my
opinion, strictly necessary to enable Applicants to
Respondent's claim. Having said this, suffice it to say that since
that they should have supplied further particulars to the five (5)
paragraphs as already mentioned above and not just dismiss
request, it is not necessary for me to go through them with a fine
toothcomb to consider whether they merit consideration
accordingly grant the order insofar as they are concerned.
reasons, the application to compel is granted only in respect of
paragraphs 8, 9, 12.1, 14 and 16 of Respondents' declaration.
had also prayed for costs in this application. Although I have
granted them the order in so far as the five (5) mentioned
are concerned, in the light of the fact that these form only a small
portion of the request I am not going to award
them the costs.
same vein since Respondents also conceded that they should have
obliged the request with regard to the above stated paragraphs
did not, I will not award them costs either.
reasons, there is no award as to costs.
Applicants : Mr Molyneaux
Respondent : Mr Mohau
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