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CIV/T/572/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between,

TEFO
MOEKETSE Plaintiff

and

'MATHABANG
ALRINA NQOKO 1st Defendant

LAKESIDE
HOTEL 2nd Defendant

RULING

Delivered
by the Honourable Mr Justice T Monapathi Acting Judge on the 23rd
February 1994

The
matter was postponed to today on the 21st February, 1994 for argument
by Mrs Kikine for Excepient/Defendants and Mr, Mafantiri
for
Respondents/Plaintiff The Exception as filed on the 17th December
1993 was framed as follows

"1

The 1st
Defendant excepts in terms of Rule 29 of the High Court rules to the
Plaintiff's summons and declaration as being vague
and embarrassing
and disclosing no cause of action against her in that it

2

is not
clear in what capacity she is being sued

2

In paragraph 5 of the declaration it is alleged that Plaintiff was
employed by the 2nd Defendant Plaintiff therefore has failed
to
impute the responsibility for his dismissal to the 1st Defendant It
is not also clear why the 1st Defendant is being wrongly
cited.

3.

Wherefore 1st Defendant prays that Plaintiff's claim against her be
dismissed with costs, alternatively that Plaintiff be ordered
to
amend the summons to disclose a cause of action or to remove the
cause of embarrassment and that the Plaintiff pay the costs
of this
exception and the amendment " (my underlining)

On
receipt of the Exception the Plaintiff on the 20th December 1993
filed an objection on the Exception framed as follows

"1

Plaintiff
objects to defendant's exception in that the purported exception does
not comply with the requirements of Rule 29 Rule
29 expressly
provides that a party excepting must Rive the other party seven days
to rectify the mistake failing which an exception

3

will be
taken

2.

The
defendants have not given the plaintiff seven days to rectify the
mistake but instead they directly excepts contrary to Rule
29,"
(my underlining)

It is
clear that the Court was faced with a seemingly complex argument that
was mostly to do with technicalities I thought it was
complex but
later turned out during the Counsel's arguments that some aspects
were merely obscure, I though this was very unfair
to this Court
which has an onerous duty of doing the following in such matters

1. To
   endeavour to resolve obscurity and render clear decisions and in
   case of doubt to favour validity

   
   

2. To
   remove sources of irritation and causes for further litigation

   
   

3. To
   guard against anything tending to delay proceedings and avoid
   unnecessary costs

   
   

In the
Defendants' exception I have underlined those statements which show
that it is alleged that

1. There
   are no clear averments in Plaintiff's

   
   

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declaration which show why and in what capacity the 1st Defendant is
being sued

2. There
   are no facts or alleged actions which support any liability imputed
   to 1st Defendant either as a person or as a Managing
   Director of the
   2nd Defendant,

   
   

3. 1st
   Defendant should not have been joined in the circumstances stated
   above

   
   

There was
no doubt that the Plaintiff understood the 1st Defendant's complaint
But he complains that the 1st Defendant went about
it the wrong way

With
regard to the Defendants' objection Mr Mafantiri briefly developed
his submissions, to say that

1. Where
   the 1st Defendant complained of a vague and embarrassing declaration
   she could not suddenly file an exception without a
   notice in terms
   of Rule 29(2)

   
   

2. If
   then the Plaintiff failed or neglected to comply after the said
   notice it is only then that an exception can be filed

   
   

3. Moreover
   in terms of Rule 29(3) a party whose pleading

   
   

5

is being attached as not complying with any rule of Court must first
be asked to comply, This has not been done either

4. If
   the 1st Defendant had alleged in her exception that "the
   declaration lacks such averments which are necessary to sustain
   an
   action or defence" (see Rule 29(1)) as against that "the
   Plaintiff's summons and declaration as being vague and
   embarrassing"
   (see Rule 29(2), the Plaintiff would not have objected the 1st
   Defendant going straight away to file an exception

   
   

This
interpretation by Mr Mafantiri seems to be valid In any event he
stood at the risk of his claim being wiped off if the exception

succeeded In that event one would sympathize with the Plaintiff who
most probablv wants his cause to be ventilated as soon as possible
He
is most probably oblivious to these lawyers' technicalities and
concepts He wants his claim to be heard in Court

As said
before it was quite clear to the plaintiff what the substance of the
exception was, Having felt that Mr. Mafantiri's objection
was valid I
made the following orders after argument

1. That
   the exception be regarded as a notice in terms of

   
   

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Rule 29(2) and that the Plaintiff shall remove the alleged complaints
and amend his declaration accordingly This he must do within
7 days,

2. That
   in the event of the Plaintiff being unable or failing to comply with
   the above order or doing so in a manner unsatisfactory
   to
   Defendants, Defendants shall reinstate the exception in its entirety
   or an amended form, but in any event Defendants shall
   plead over

   
   

3. The
   1st Defendant shall pay the costs of hearing of the exception

   
   

I was
reminded of the case of KUTLOANO BUILDING CONSTRUCTION vs MASEELE
MATSOSO AND ANOTHER C of A (CIV) No.16 of 1984 where Schutz
JP said
at page 7

"I am afraid that my decision may smack of a triumph of
formalism over substance But forms are often important and the
requirement
of the sub-rule are such Bad as the declaration, so were
the notices of exception for the intended purpose, The Plaintiff had
taken
his life in his hands by filing his declaration But so in turn
did the two Defendants when they filed their exceptions, and, as
at
the Battle of Founteroy, 7

they had to face firing first "

These are
obvious similarities with the present matter

These
rules of Court are almost always sufficiently clear, A search in the
law reports at most time yields good results on the interpretation
of
the rules in other jurisdictions But like all concepts of the law
they sometimes, depending on the different claims, prove difficult
to
handle One would demand just sufficient compliance with the rules
This is sometimes not achievable On the other hand one finds
some
practitioners who adopt a sharply technical approach to the
interpretation of this rules I wish this could be avoided But
then
the question is always not whether a point is technical but whether
it is valid I suppose it should not be difficult to make
this,
sometimes fine distinctions to a pleading that is vague and
embarrassing as against one that lacks sufficient averments to

support a claim or a defence, as against one that does not disclose a
cause of action or defence and finally, as against the one
that does
not comply with the rules of Court, in order to handle the Rule 29
effectively

To give a
notice in terms of Rules 29(2) and 29(3) or to ask for particulars
before excepting is not an easy path

T
MONAPATHI

ACTING
JUDGE

23rd
February, 1994

For the
Plaintift Mr Mafantiri (H E Phoofolo & Co )

For the
Respondents Mrs Kikine (Waledi Chambers)