C of A (CIV) 19/2004
IN THE COURT OF APPEAL OF LESOTHO
the matter between:
Industries (Pty) Ltd. Appellant
Plant Hire (Pty) Ltd. Respondent
at Maseru: 6, 20 April 2005
A point of law alleged to be such taken at the
commencement of a civil trial without notice and without observance
of the Rules of
Court such practice unacceptable and constitutes
ambushing of a litigant. Matter raised one of evidence and not a
law appeal against decision to allow such a procedure
and to uphold an exception wrongly made. Appeal upheld. -
dismissed with costs.
Reasons for Judgment
 At the hearing of the appeal the
Court made the orders set out below.
doing so we said that we would give written reasons for our orders.
These are the reasons.
was the Plaintiff in the Court below and is referred to as such in
this judgment. It sued the respondent for payment
of damages in an
amount of M54,116.40. Its cause of action is pleaded as follows:
Plaintiff has been appointed as the company responsible
for the upgrading of the THETSANE-TIKOE road. As part of its
erected huge heaps of quarry alongside the
- 5 -
On or about the 5th
May 2002 Defendants employee acting within the scope of his
employment did wrongfully and unlawfully spread the said heaps of
quarry which was then wasted as a result thereof.
- 6 -
As a result of the unlawful conduct of Defendants
employee, Plaintiff has suffered great loss and in the result has
in the sum of M54,116.40.
(the defendant) asked for further particulars and inter
alia asked the following question:
which Defendant employee (sic) unlawfully spread the
heaps of quarry? Full particulars are required.
To this Plaintiff replied as follows:
The full particulars of Defendants employee are
unknown to Plaintiff.
 A pre trial conference was held
at which it was agreed that the issues to be decided at the trial
were the following:
defendants employee was acting within the scope of his employment.
the spreading of the quarry caused any loss to the Plaintiff.
 In spite of this agreement concerning the issues
and without notice to the Plaintiff, when the matter was called
Counsel took what he called a point of law. This
point he formulated as follows in argument.
identify of the servant who was involved in the wrong-doing was
unknown. An unknown person could not become a servant of someone.
An unknown person is as good as non-existent. In the
the Plaintiffs declaration did not disclose a cause of action.
the objection by Plaintiff to this point being raised without notice,
the Court ruled that the taking of what amounted
to an exception was
permissible in terms of the Rules of Court. It proceeded to hear
argument on it and upheld it. The Court subsequently
allow an amendment. It also rejected Plaintiffs contention that
the defect in the pleadings could be cured by
evidence to be
led at the trial.
 The learned trial
judge in my view erred in the respects set out herein. It is correct
that the Court had a discretion to allow
the defendant to raise a
point of law at any time. However it can only do so if its
consideration involves no unfairness to the
party against whom it is
directed, see Morobane v Bateman, 1918 AD 460 at 464 (cited
with approval in this Court in Attorney General and others v Kao,
C of A (CIV) No. 26 of 2002, (unreported)). It must be borne in mind
that in the present case:
[8.1] The respondent had
not raised the exception when and in the form he should have in terms
of the Rules of Court. See High Court
[8.2] There was no
compliance with the provisions of Rule 32 (7). This Rule reads as
it appears to the Court mero motu or on
the application of any party
that there is in any pending action a question of law or fact which
it would be convenient to decide either before any evidence is
separately from any other question the Court may make an order
directing the trial of such question in such manner as it may
fit, and may order that all further proceedings be stayed until such
question is disposed of.
[8.3] There was also no
compliance by the defendant with the provisions of Rule 8 (1) which
reads as follows:
be brought on notice of motion supported by an affidavit setting out
the facts upon which the Applicant relies for relief.
is clear authority of this Court that it can be unfair and not
permissible to rely on an unpleaded defence to quash a
initiated by way of summons. See Malebo v
Attorney General, C of A (CIV) No. 5/2003.
(unreported). See particularly the authorities
cited at page 5 of the judgment and the reasoning at pp. 6 and 7.
[8.5] There would clearly
be prejudice to the plaintiff if the defendant were to be allowed to
raise and argue the matter without
any notice to it. It had set the
matter down some 18 months previously for the hearing of evidence on
the issues as pleaded. The
three issues to be tried had been settled
by agreement between the parties at the pre-trial conference.
Moreover, plaintiff was
ready to lead evidence on these at the
hearing before the trial judge. In the result the court a quo had
allowed the defendant to ambush the plaintiff via a patently
unfair process and to its not inconsiderable prejudice.
 The Court should therefore not
have allowed the respondent to raise the purported point of law when
it did. In the result the
court also did not have the opportunity to
have a considered argument from the plaintiff. This may well have
contributed to her
coming to a decision which as will be seen -
was clearly wrong. (Own emphasis).
 I say
the decision was clearly wrong also because the exception
raised no point of law. The fact that the plaintiff was
identify the servant in question may be evidentially
relevant, but his name, address and other identifying details are in
no way essential for the plaintiff to establish that the person
caused the damage complained of was an employee of the defendant
acting in the scope of his employment. If e.g. the plaintiff
evidence that the person who was seen committing the acts complained
of was, during working hours, wearing a uniform with the
name of the
defendant embossed on it, such evidence would, prima
facie, and in the absence of rebutting
evidence be sufficient for it to succeed. Plaintiff may also have
called another worker employed
by the defendant to say that he heard
the foreman instructing a group of workers to spread the quarry on
the road. Again such
evidence could well discharge the onus resting on the plaintiff in
this respect. Many other examples spring to mind but
unnecessary to mention them. All that need to be added is that the
defendant might have been able to ascertain the grounds
plaintiffs allegation by means of a request for particulars for
trial in terms of Rule 37.
 Support for the
approach set out in par. 9 above is to be found in a judgment of this
Court in Mokhutle N.O. v MJM (Pty) Ltd. C of A (CIV) No.
15/2000 where at p. 9-10 Friedman JA says the following:
the purposes of deciding whether particulars of claim support a cause
of action the allegations contained therein must be accepted
correct. If evidence can be led which can disclose a cause of action
alleged in a pleading, the pleading will only be excipiable
basis that no possible evidence led on the pleading can disclose a
cause of action. See The
Law of South Africa, First Reissue
vol. 3 Part 1 paragraph 186; McKelvey
v Cowan NO 1980
(4) SA 525 (Z) at 526 D-E.
 The point of law was indeed no
point of law and should not have been considered as such or upheld.
For these reasons this Court
after hearing Counsel made the following
The appeal is
upheld with costs. The decision of the court a quo
upholding the exception is set aside as is the dismissal
with costs of the Plaintiffs claim. In its place it is ordered
exception is dismissed with costs.
Delivered on 20th
day of April 2005
the Appellant: Mr. M. Ntlhoki
the Respondent: Mr. T. Matooane
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