C OF A
COURT OF APPEAL OF LESOTHO
RECOVERIES (PTY) LTD APPELLANT
(PTY) LTD FIRST RESPONDENT
FARMERS ASSOCIATION SECOND RESPONDENT
3 APRIL 2006
: 11 APRIL 2006
- Exception - Principles thereof- Trial Court going behind
defendant's plea in determining plaintiff's exception thereto
matter bears the hallmarks of a case which has regrettably been
allowed to degenerate into a farce. It is a ding-dong affair
the parties with roots traced as far back as 1985 when the site
forming the subject matter of the dispute was admittedly
RAOHANG MABEOANA DAIRY FARMERS COOPERATIVE SOCIETY ("the
Cooperative Society"). It is thus convenient to
judgment with the chronology of relevant events in the matter.
 On 17
June 2004, the present Respondents issued vindicatory summons against
a certain Teboho Tsepiso and the Appellant respectively
in these terms:-
"(a) Cancellation of the sale in execution of 2nd Plaintiffs
site to lst Defendant.
the 1st Defendant to vacate the said site.
the 1st Defendant to restore possession of all the Equipment to 1st
of rental of M4,400.00 for 11 months which was illegally collected
from June 2003.
the Defendants to pay the costs in the event of opposition.
Plaintiff such further and/or alternative relief."
 On 30
June 2004, the Appellant duly entered an appearance to defend. This
was followed by a request for further particulars
on 12 July 2004.
Such particulars were in turn furnished on 11 August 2004.
 On 7
September 2004, the Appellant duly filed a special plea together with
a plea on the merits of the claim.
Appellant's special plea specifically referred to the Cooperative
Society in these terms:-
The Defendants herein hereby raise the Special Plea of Non-Joinder of
Raohang Mabeoana Dairy Farmers Co-Operative Society, and
Plaintiffs know quite well that the said cooperative society has a
substantial interest in this matter in that it claims
the site and machinery that are the subject matter of this claim."
particular relevance insofar as this appeal is concerned is paragraph
4 (AD paragraphs 5 and 6) of the Appellant's plea.
To the extent that
the facts set out therein are crucial to a determination of the
Respondents' exception to Appellant's
is convenient to reproduce the contents of the paragraph in
"4. AD PARA 5
Save to deny that the site that was attached and sold in execution
belonged to 2nd Plaintiff and to contend that the site belonged
Raohang Mabeoana Dairy Farmers Cooperative Society, the rest of the
contents are denied.
AD PARA 6
contend that default Judgment was properly granted against the
aforesaid Raohang Mabeoana Society as the latter acknowledged
indebtedness to the 2nd Defendant herein and consented to Judgment.
The site that was attached in execution was allocated
to the said
Society long before the registration of the 2nd Plaintiff herein and
the said allocation was never revoked.
deny that the dairy machinery on the site in question belongs to the
1st Plaintiff and contend that the machinery belonged
aforesaid Raohang Mabeoana Dairy Farmers Cooperative Society until
it was lawfully sold in execution."
the same day, namely, 7 September 2004, the Respondents filed an
exception to Appellant's plea. The particulars of the exception
stated as follows:-
TAKE NOTICE THAT Plaintiff intends to raise an exception to the
Defendant's Plea as follows;
Defendants had sued and executed against present Plaintiff in CIV/T/3
96/2001. They had been granted Default Judgment accordingly.
not a defence to quote that the site belongs to a third party to whom
they never referred to in the original litigation,
MASERU THIS 7th DAY OF SEPTEMBER 2004.
MATOOANE & CO.,
MESSERS HARLEY & MORRIS 3rd FLOOR CHRSTIE HOUSE MASERU REF:
pause there to point out that what stands out like a sore thumb is
the fact that the Respondent's exception lacked a prayer.
It is well
settled that an exception which contains no prayer for the relief
sought by the excipient is bad in law. See Beck's
Principles of Pleading in Civil Actions: Isaacs O.C.. Fifth Edition
at page 123.
in terms of Rule 29 of the High Court Rules 1980, an exception may
only be taken on the following grounds:-
the pleading under attack does not disclose a cause of action or a
defence, as the case may be; or
such a pleading is vague and embarrassing and the pleader has not,
within seven days of a notice from the other side, removed
of complaint contained in the pleading.
light of these considerations, it is evident that the Respondents'
exception lacked the necessary averments and therefore
comply with the High Court Rules.
A QUO'S APPROACH TO RESPONDENTS' EXCEPTION
Instead of proceeding on the basis of the correctness of the
appellant's plea as fully set out in paragraphs  and  above,
the court a quo relied on the contents of court "files" in
previous proceedings, more particularly, CIV/T/396/01. In
of its judgment the court then said this:-
upon perusal of the files, nowhere did I find any reference to a
third party in the name of the Society as distinct from the
since the latter had not been cited in the previous
proceedings until at the time that these present proceedings were
typical example of the learned Judge a quo's approach and
determination in going behind the plea in question is once again
contained in what she says in her judgment, namely:-
basis of the contents of these pleadings, I am of the opinion that
indeed at some stage there was a Raohang Mabeoana Dairy
Cooperative Society which entered into a loan agreement with the then
Agric Bank. However, this Society ceased to exist
at some stage
resulting in the site in question being subsequently allocated to 1st
Plaintiff herein. On the other hand, there
is nothing in the court
file to support defendants'
that such a Society still exists which would justify its being joined
in the present proceedings. There is not even a supporting
from them to reinforce defendants' argument that the site is being
claimed by another entity aside from 2nd Plaintiff."
it is well established that an exception to defendant's plea must be
determined solely on the basis of the correctness
of the facts set
out in the plea. See for example Ramakoro v Peete 1980-84 LAC 94 at
Retselisitsoe Khomo Mokhutle N.O. v MJM (Pty) Ltd C of A (CIV) NO.
15/2000 (unreported) this Court said the following:-
"For the purposes of deciding whether particulars of claim
support a cause of action the allegations contained therein must
accepted as correct. If evidence can be led which can disclose a
cause of action alleged in a pleading, the pleading will only
excipiable on the basis that no possible evidence led on the pleading
can disclose a cause of action."
these remarks were made in the context of an exception to plaintiffs
claim, the principle stated therein applies with equal
force to an
exception to a plea.
follows from the foregoing considerations that the Appellant's
allegations contained in its plea must be accepted to be
all constituent parts for the purposes of this appeal in relation to
the Respondents' exception.
this approach, therefore, the conclusion is inescapable in my view
that the court a quo was wrong to have gone behind the
plea. Similarly, the court a quo was not justified in upholding the
Respondents' exception on the ground that there
was "not even a
supporting affidavit from them (the Appellant and its co-defendant)
to reinforce defendants' argument that
the site is being claimed by
another entity aside from 2nd Plaintiff." With due respect to
the learned Judge a quo, there
is no procedure requiring a defendant
to file an affidavit in opposition to plaintiffs exception. The
contents of a defendant's
plea are sufficient to dispose of an
exception. The court simply proceeds on the basis of the correctness
of such contents.
Similarly, I point to yet another misdirection by the learned Judge a
quo. In the course of her judgment dismissing the special
plea by the
Appellant and its co-defendant she said this:-
"Their contention was that the two (namely, the Second
Respondent and the Cooperative Society) exist separately from one
another yet they failed to produce any evidence to show that the
Society still exists as a matter of fact."
learned Judge a quo then concluded:-
"I therefore find that on the pleadings before me, at present
there is no such legal entity as the Cooperatives Society. For
reasons, I dismiss defendants' special plea of non-Joinder."
is clear, it seems to me, that the learned Judge a quo ignored the
contents of the Appellant's special plea as well as paragraph
its plea as fully set out in paragraphs  and  above. I feel
myself constrained to say that this, as I have said earlier
and as I
repeat, she was not entitled to do.
was the court a quo justified in dismissing the Appellant's special
plea of non-Joinder of the Cooperative Society. One
that the Appellant's averments contained in its plea were to the
effect that the Respondents "knew quite well"
Cooperative Society had a substantial interest in the matter and
actually owned the machinery forming the subject matter
dispute. At the very least, the special plea raised, in my view, a
aspect of the case. One must further bear in mind, however, that the
Respondents' counter allegation contained in their
particulars to the effect that "Raohang Mabeoana Cooperative
Society, and the allocation was (sic) lawfully revoked
2001" raises, in my view, a bona fide dispute of fact. It seems
fair and just in these circumstances that this
issue should be
determined by the trial court by way of oral evidence.
appeal is accordingly upheld with costs. The order made by the court
a quo is set aside and replaced with the following
"The Plaintiff's exception to Defendants' plea is dismissed with
is further ordered that the Defendants' special plea shall be
determined by way of oral evidence at the trial before a different
MOFOLO EX OFFICIO
Appellant : Mr S. Malebanye
Respondents: Mr T. Matooane
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