HIGH COURT OF LESOTHO
NATIONAL NETBALL RESPONDENT/DEFENDANT
by the Honourable Madam Justice N. Majara on the 25th April 2006
an application brought in terms of Rule 30 (1) of the High Court
wherein Applicant asks this Court to set aside respondent's exception
dated 3rd January 2006 and delivered on 17th January
2006 as a
irregular and improper step. The application is premised on the
the respondent's notice of exception was served on applicant before
the latter delivered his declaration in terms of Rule
21 (1) of the
said notice is contrary to the provisions of Rule 29 (1) because it
was not made within the period allowed for the delivery
heads of argument, applicants submitted that respondents' notice of
exception is hopelessly out of time because the latter
served their notice of appearance to defend on 2nd May 2005 and that
since an exception is a pleading, it has to be delivered
period allowed for delivery of any subsequent pleading per the
provisions of Rule 29 (3) (a).
respondents submitted that due to the fact that it has been a year
since applicants were served with a notice of appearance
but have not yet filed their declaration, they acted contrary to the
provisions of Rule 21 (1) on which they base their
It was Mr
Molapo, Counsel for respondent's further submission that applicant
ought to have applied for condonation from the Court
to approach it
in terms of Rule 21 (1) because he is out of time. Further, that the
present application is tantamount to an abuse
of Court process in
that applicant lodged a similar application in this very same matter
wherein he also applied for condonation
for failure to comply with
the provisions of the Rule and the application was upheld by the
background that brought about this present application is that on
12th April 2005, applicant herein instituted an action
respondent by way of a civil summons wherein he claimed payment of
the sum of M36, 080.00, costs of suit, interest at the
rate of 18.25%
per annum from the date of judgment as well as further and/or
Court file, after the summons was served on respondents the latter
filed their notice of appearance to defend on 2nd May
2005. On 16th
respondents filed a notice of exception to applicant's summons for
the reason that it does not comply with Rule 18 (5) of the
Rules 1980 in that it does not contain a concise statement of the
material facts relied upon by applicant in support
of her claim and
as such does not disclose a cause of action.
in turn filed a notice of application to have the notice of exception
filed by respondent and dated 12th May 2005 to be
set aside as a
irregular and improper step on the ground that respondent filed the
notice of exception before the expiry of the
14 days prescribed by
Rule 21 (!) of the High Court Rules. Applicant also applied for
condonation of the late filing of the said
application was granted on the 17th October 2005 by Her Ladyship Mrs.
Justice M. Hlajoane in terms of both prayers.
to the Court Order, no further steps were taken by either side until
the 3rd January 2006 (almost three (3) months later)
through his newly appointed Counsel filed another notice of exception
in terms of Rule 29 (1) to the effect that
applicant's summons does
not disclose a cause of action for its failure to show on what legal
basis it was instituted. The notice
was filed with the Court on the
17th January 2006.
reaction, applicant filed a notice in terms of Rule 30 for an order
to set aside respondent's notice of exception on the grounds
applicant was served with the notice before he could file his
declaration in terms of Rule 21 (1) of the High Court Rules.
that the notice of exception is not in accordance with the provisions
of Rule 29 (1) in that it was not made
the period prescribed for the delivery of any subsequent pleading and
is for these reasons a irregular or improper step.
proceed to deal with the notice of exception and the application to
have it set aside.
notice of exception was filed in terms of Rule 29 (1) which provides
"Where any pleading lacks averments which are necessary to
sustain an action or defence, as the case may be, the opposing
within the period allowed for the delivery of any subsequent
pleading, may deliver an exception thereto. (my underlining)
period referred to in the above Rule is twenty one (21) days and as
Mr Qobolo, Counsel for applicant correctly submitted, the
was delivered way after the said period since it was only delivered
in January about three months since the Court made
its order and
almost a year since respondent was served with applicant's summons.
being the case, although I agree with Mr Molapo's submission that the
delivery of an exception is not mandatory per the Rules
where however a party wants to rely on the provisions of Rule 29 as
quoted above, he has to do so within the time period
as can be read
from the above quotation and respondent herein failed to comply with
the set time limit.
that as it may, this matter does not end there. As Mr Molapo
correctly submitted, applicant also failed to comply with the
mandatory provisions of Rule 21 (1) which enjoins a plaintiff to
deliver its declaration within 14 days after the delivery of service
upon it of entry of appearance to defend.
like I have already shown above, the order setting aside respondent's
exception was granted on the 17th October 2005. The
dismissed for the reason that respondent had acted prematurely by
delivering it before the prescribed 21 days. After
the said order,
applicant comes to Court once again and asks the Court to dismiss the
application on the ground that it was filed
way out of time.
within this scenario that I find the attitude of applicant
mind-boggling to say the least Firstly, he cries foul when respondent
acts prematurely. After the court rules in her favour, she sits back
and does nothing about her own case for a period of three
in spite of the provisions of the rules.
respondent eventually acts and files an exception, she jumps and
cries foul again, this time complaining that respondent acted
she could file her declaration which she ought to have filed a long
time ago. Further that respondent did not comply with
of Rule 29 insofar as the time period for the filing of an exception
is provided for.
I do not
understand why after the Court ruled in her favour in the first
instance, applicant decided to sit back and not to file
declaration, especially because the other side had since brought this
fact to her attention.
reasoning by Mr Qobolo that applicant was waiting for respondent to
deliver an exception before she could file her declaration
hold water especially when account is taken of the fact that Rule 29
which enables defendant to can deliver his exception
is not mandatory
but only enabling.
addition, in the first instance when applicant made her application
in terms of Rule 30, she also applied for condonation for
filing which was about one (1) month after the delivery of the
exception yet this time around she does not bother to apply
same condonation when the situation is worse and the application is
filed about three (3) months out of time i.e. in April
2006 when the
notice of exception was delivered in January 2006.
agree with the submission that the exception was indeed delivered out
of time, a factor which renders both sides guilty
with the Rules of Court, it is my opinion that applicant herein is
flagrantly abusing Court process. This is
because Rule 21 compels her
to file her declaration within 14 days of receipt of entry of
appearance to defend whilst Rule 29 on
the other only enables
defendant to deliver an exception within the time period.
latter Rule is not mandatory at all and is as such not reason enough
for applicant to deliberately refrain from filing her declaration
because as her Counsel stated, she was waiting for the delivery of an
exception which might never have come.
might have been different if Counsel's argument was that applicant
was waiting for a demand of delivery of the declaration.
then, the Court might still have had a problem understanding why
after the first order of the 17th October 2005 was granted
applicant's favour, when respondent had delivered his exception
prematurely and was dismissed by the Court, applicant still
not to file her declaration.
order gave her ample opportunity to redress the situation but she
decided to do nothing about it It is for this very reason
case can be distinguished from that of Beukes v MEC Agriculture and
Environment Affairs E. Cape 1999 (4) SA 772 at 778
Insurance Co. Ltd. V Manqele 1975(1) SA 607 quoted to this Court,
also be borne in mind that applicant herein is the one who approached
the Court with her case. She therefore has a duty
to ensure that it
is ready and prosecuted to its finality instead of creating this bad
impression that she is playing a cat and
mouse game with respondent
as well as the Court.
attitude also flies in the face of the adage "Rules are made for
the Court and not the Court for the Rules." If I
had not found
that respondents were in pari delicto by filing their exception out
of time, applicants ought to have been punished
with costs on a
punitive scale for their nonchalant and hide and seek attitude
towards Court processes. Their behaviour certainly
and ought to be discouraged it at all costs.
It is for
these reasons that applicant's application is dismissed and
respondent's exception upheld with costs on the ordinary scale.
Applicant is also ordered to file her declaration within seven (7)
days of delivery of this order.
Applicant/plaintiff : Mr Qobolo
Respondent/defendant : Mr Molapo
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