CIV/T/87/80

IN THE HIGH COURT OF LESOTHO

In the matter of :

JOHN MOLAI LEPHOLE Plaintiff

v

MICHAEL BERNON MATHER Defendant

RULING ON APPLICATION TO STRIKE OUT A REQUEST FOR FURTHER PARTICULARS

Delivered by the Hon. Chief Justice, Mr.Justice T.S. Cotran on 11th day of August 1980

On the 26th March 1980 the plaintiff John Molai Lephole issued a summons against the defendant Michael Bernon Mather seeking, inter alia, damages for assault in the sum of M5000 suffered as a result of an incident that allegedly took place at the Holiday Inn on the 20th March 1977. The defendant was called upon to enter appearance within 9 days of service of the summons in terms of Rule 18(1) of the High Court Rules. Plaintiff's attorney also served notice on the defendant to plead or except or make a claim in reconvention within 21 days failing which he would be barred. The summons, the declaration, and the notice, were served on the defendant on the 3rd April 1980. The defendant did not enter appearance by the due date nor did he plead, except, or make a claim in reconvention. Strictly speaking the plaintiff could thereafter have applied for Judgment to be entered in default after putting the plaintiff in the box to prove his alleged damages.

On the 6th May 1980 the defendant, through Mr. Harley, entered an appearance to defend. That entry of appearance was out of time of course but Mr. Maqutu did not make an issue of this point. He says he was prepared to accept the late entry but he was expecting a plea or exception or a claim in reconvention to follow within 14 days in accordance with Rule 20 of the High Court Rules.

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Mr.Harley did nothing for over 10 weeks. On the 17th July 1980 Mr.Maqutu for the plaintiff served notice on the defendant's attorney Mr.Harley to deliver a plea exception or claim in reconvention within 24 hours. Mr. Harley did not file a plea within 24 hours or at all. Strictly speaking Mr. Maqutu was then entitled, and this was his second chance, to move the Court to grant a Judgment in default after putting the plaintiff in the box to prove his damages. On the 23rd July 1980, however, Mr. Harley made a request for further particulars whereupon Mr. Maqutu moved the Court to strike out such a request. Mr.Maqutu alleges that Mr. Harley made remarks outside the Court room to the effect that it was in his (Mr.Harley's) power to delay the proceedings indefinitely and that his (Mr.Harley's) attitude to the summonses and declaration was unprofessional. He submitted that the entry of appearance was out of time and therefore irregular (Creux & Sons(Pty)Ltd v. Groenewald 1953(3) S.A. 726) and that the request for further particulars was out of time and therefore also irregular (Swart v. Flugel 1978(3) S.A. 265). Mr. Harley could have taken steps to rectify the position but he did not do so. Mr. Harley denies he made the remarks attributed to him. There is no doubt however that he was extremely slovenly. He contends that he had difficulty in contacting his client and that there is nothing which the Court cannot condone if a suitable order is made on costs which he was prepared to bear.

I am not sure that the Court can allow condonation of irregularities of this magnitude. As I see it the stage has now been reached where I must look for two things only, namely, whether the statement of claim discloses a cause of action, and whether it is possible for the defendant to plead. If the answer is in the affirmative Mr. Maqutu is entitled to an order striking out the request for further particulars and for a further order that the defendant pleads. The plaintiff's declaration is unfortunately not very elegantly drafted but clearly a cause of action has been disclosed and it is possible, even on the scanty information, for the defendant to make tender if he so wishes, or to plead. None of the particulars asked for are necessary to enable the defendant to plead, although some of the particulars if supplied, will ensure narrowing of the issues and a speedier trial. I would strike out the request for further particulars with costs of the day to the plaintiff in any event and order the defendant to plead within seven days. If Mr.Harley requires further particulars or other documents by way of discovery

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for the purpose of the trial, and these are not supplied, he can make an application to the Court in the usual way but plead he now must.

CHIEF JUSTICE

11th August, 1980

For Plaintiff: Mr. Maqutu

For Defendant: Mr. Harley