HIGH COURT OF LESOTHO
KOTELO T/A V.V.M. KOTELO Plaintiff
FIEE 1st Defendant
PHOOFOLO T/A E.H. PHOOFOLO & CO 2nd Defendant
by the Hon. Mrs Justice A. M. Hlajoane on 15th August, 2006.
case Plaintiff has sued the Defendants for Professional fees for
professional services he had rendered to the 1st Defendant.
was issued and served on the Defendants. The Appearance to defend was
filed and later the Defendants' plea. After the plea
was filed, the
Plaintiff filed a request for further particulars.
showed that he was requesting for further particulars to Defendants'
plea in order to enable him to replicate. In response
to the request
the Defendants indicated that the particulars requested were mostly
argumentative and that were matters of evidence
which were not
necessary to enable Plaintiff to replicate. This was said under the
heading further particulars.
further filed a Notice to compel in terms of High Court Rule 30 (5)
showing that the request for further particulars aligned
first Respondent's plea to the effect that he denied ever instructing
Plaintiff to assist as alleged orally or in any
answer, the Defendants had shown that the notice in terms of Rule 30
(5) was not clear as there never would be a time when Plaintiff
to plead. The notice did not say was for purposes of replicating but
instead showed that it was for purposes of determining
Defendants contented that there is no such under the rules of this
Court. He showed that further particulars would be
requested in order
to enable one to;
prepare for trial and to tender but there is no rule of
Court for determining onus.
to the Defendants, the application should have been in terms of Rule
25 (b) not 30 (5). Rule 25 (b) reads:-
a request for particulars is not complied with, the party requesting
the same may subject to the provisions of sub-paragraph
(5) of Rule
30 apply to Court for an order for or for the dismissal of the action
or the striking out of the defence and on such
an application, the
Court may make such order which it seems fit to make."
a party fails to comply timeously with a request made or notice given
pursuant to these Rules the party making the request
or giving the
notice may notify the defaulting party that he intends after the
lapse of seven days, to apply for an order that
such request or
notice be complied with, or that the claim or defence be struck out.
Failing compliance within the seven days,
application may be made to
Court and the court may make such order thereon as it deems fit."
Defendants' contention that Plaintiff ought to have relied on the
provisions of Rule 25 (6) which has to be read together
with Rule 30
(5) of High court Rules. He cited the case of Moaki v Reckitt &
Colinan (Africa) Ltd & Another 1968 (3) S.A.
98, the position in
this case has not been that of ignoring the request to furnish
particulars but Defendants felt that those particulars
necessary under the circumstances of this case as giving them would
amount to giving evidence. The Defendants have said
Plaintiff offered to assist, and other details would be a matter to
be left for cross examination.
looking at the case of Norman & Co (Pty) Ltd v Hansella
Construction Co. (Pty) Ltd 1968 (1) S.A. 503 at 504, it has sections
21 (6) and 30 (5) more or less similar to our Rules 25 (6) and 30 (5)
of the High Court Rules. In Norman's it was decided that
Rule 21 (b)
was self-contained and independent of Rule of Court 30 (5). So that
in consequence therefore, an application in terms
of Rule 21 (6),
where a party requested to furnish particulars has failed to supply
them timeously or sufficiently, may be made
forthwith without the
prior notification mentioned in Rule 30 (5).
some difference in the provisions of Rule 21 (6) and 30 (5) in
Norman's case to our Rules 25 (6) and 30 (5). Our two rules
different situations, being where there has been total noncompliance
and where there has been compliance but out of
(6) in Norman's case covers both situations in one, as it has both
timeously and sufficiently. So that in terms of our Rules,
(6) had to be read together with Rule 30 (5).
rightly pointed out by the Defendants, even if we were to say
Plaintiff was correct in relying on the provisions of Rule
that Rule also requests that an application be made to Court after
the allowance of seven days given to the other side
to comply same as
in Rule 25 (6).
Plaintiff set the matter down the seven days had lapsed but there was
no application filed as envisaged by the Rules, see
Componenets v Coucouraki's and another 1979 (2) S.A.
459 where it said, "failing compliance within the seven days
mentioned, application may be made to Court and the court
may make an
appropriate order." There ought to have been a formal
application filed after the lapse of seven days.
as well deal with the question of whether or not the particulars
requested were necessary to enable Plaintiff to plead further
replicate. In his papers the Plaintiff has said in the notice to
compel that, he needed those particulars for purposes of determining
question of onus of proof.
Buckle, the civil Practice of The Magistrates' Court in South Africa,
7th Edition at 133 in explaining functions of particulars
party is not entitled to further particulars "which he requires
merely so that he can place on the Plaintiff an onus
otherwise rest on the Defendant." Which is exactly what the
Plaintiff requires the particulars for, for purposes
onus. Particulars requested have to be strictly necessary for
being a trial not an application, Defendants have said that Plaintiff
offered to assist and that other questions would be matters
finds that the request failed to meet the test of being strictly
necessary to enable the other side to plead or replicate.
formal application been made after the seven days allowed by the
rules, that would have the effect of changing the position
application to compel is thus dismissed with costs for noncompliance
with the Provisions of Rule 25 (6). Parties therefore
to approach the
office of the Registrar for allocation of a date of hearing of the
Plaintiff: Mr Mokoko
Defendants: Mr Phoofolo
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