CRI/T/328/85
IN THE HIGH COURT OF LESOTHO
In the matter of
CARRINGTON MOEKETSI MASOABI
v
FRASERS (LESOTHO) LTD t/a FRASERS CROCODILE RETAIL WELLINGTON TSELISO MPITI
ELIAS TSELISO MAKOANYANE
JUDGMENT
Delivered by the Hon. Mr Justice J L Kheola on the 11th day of September, 1985.
The applications before me are
Plaintiff's application in terms of Rule
30 (1) to set aside Defendants' Request for further particulars to Plaintiff's Declaration,
Plaintiff's application for default judgment,
Defendants' application to compel the furnishing
by the Plaintiff of the further particulars requested to the Plaintiff's declaration,
Defendants' application for condonation.
It was agreed by the parties that these applications should be heard together because they are inter-related The events which led to the institution of these applications are also not in dispute. They are .
(1 ) On the 9th May, 1985 the Plaintiff issued a Civil Summons No. T/328/1 985 out of the High Court,
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Attached to the summons was the
Plaintiff's Declaration together with a number of annexures,
Service of the summons and declaration together was effected on all the Defendants on the 20th May, 1985,
Entry of appearance to defend was made on the 24th May, 1985 and served on the same day,
On the 17th June, 1985 the Plaintiff served on the Defendants a notice to file plea in terms of Rule 26 (2),
On the 18th June, 1985 the Defendants
attempted to serve on the Plaintiff a Request for further particulars to the Plaintiff's Declaration, but the Plaintiff refused to accept the Request,
On the 4th July, 1985 the Plaintiff launched an application in terms of Rule 30(1) on the ground that the Defendants' Request for further particulars was out of time and therefore an irregular step or proceeding,
On the same day (the 4th July, 1985) the Plaintiff launched an application in terms of Rule 27 (3) for judgment against the
Defendants by default,
On the 8th July, 1985 gave notice of an application against Plaintiff in terms of
Rule 25 (6) an order to compel Plaintiff to /for deliver the further particulars requested on the 18th June 1985 after the lapse of seven days from the date of the service of the notice,
On the 19th August, 1985 the Defendants
launched an application for condonation of their non-compliance with t he Rules in regard to bringing an application timeously to strike
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out the Plaintiff's Notice of Bar.
The Plaintiff submitted that since the Defendants were served with the Plaintiff's combined summons (Summons and Declaration) on the 20th May, 1985 computation of days starts on the 21st May, 1985, and from that day 21 days prescribed by Rule 22 {1) of the High Court Rules 1980 expired on the 13th June, 1985 Then on the 17th June, 1985 the Plaintiff duly served the Defendants' Attorneys with a Notice to File Plea in terms of Rule 26(2) He relied on the judgment of this court in the case of Petrose Ramollo v Charlie Goetseh C1V/T/45/85 delivered on the 2nd April, 1985
On the other hand Mr Kuny for the Defendants submitted that our High Court Rules do not contemplate or cover the case of service of a Declaration together with the Summons and, in effect, prior to the entry of appearance to defend by the Defendant. He referred to Rule 18 (1 ) dealing with the issue of the summons in the prescribed form, Rule 19(1 ) dealing with entry of appearance to defend within the time specified in the summons Rule 21 (1 ) dealing with the service of a Declaration within 14 days after service upon the Plaintiff of the entry of appearance Mr. Kuny's contention is that the obvious intention of the Rules was to furnish the Defendant with full 21 days after entry of appearance and service of the Declaration upon him thereafter. According to him the 21 day period would have begun to run from the date of entry of appearance (24th May 1985) and not from the date of service of the combined summons
The dispute in the instant concerns the exact time or day from which the 21 day-period allowed by Rule 22 (1 ) must begin to run in a case in which the action has been instituted with a combined summons The crucial point is whether our 1980 High Court Rules have any provision for the use of a combined summons Rule 18 (1 ) reads
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"Every person making a claim against any other person may, through the office of the Registrar, issue out a summons which shall be in a form as near as possible with Form "N" of the First Schedule annexed hereto"
Rule 19 (1 ) reads
"The Defendant in every case which he wishes to defend shall enter appearance to defend within the time referred to in the summons by giving notice of intention to do so by entering appearance at the office of the Registrar"
Rule 21 (1 ) reads
"Within 14 days after service upon him of the entry of appearance the plaintiff shall deliver a declaration".
Rule 22 (1 } reads
"Where defendant has entered appearance to defend he shall within 21 days of the service of declaration upon him deliver a plea, or an application for further particulars to the declaration, or an exception to the declaration or an application to strike out portions of the declaration "
The Rules I have stated above do not make any provision for a combined summons. The Declaration must be served upon the Defendant within 14 days after service of entry of appearance (Rule 21 (1 ) ). Rule 22 (1 ) presupposes that the Declaration was served upon the Defendant within 14 days after entry of appearance In other words, Rule 22 (1 ) must not be interpreted in isolation to the Rules preceding it, particularly Rule 21 (1 ). The Plaintiff argued that it has been a practice of very long standing in this court to serve the summons to which a declaration is annexed and that the 21 days allowed by Rule 22 (1 ) have always been counted from the time the declaration was served upon the Defendant I entirely agree that in Petrose Ramollo v. Charlie Goetseh, supra, I computed the days from the day the Defendant was served with the declaration which was annexed to the summons. When I made that decision I was under the wrong impression that our Rules provided for a combined summons I am now sure that the High Court Rules 1980 do not contemplate a situation in which a declaration shall
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be served simultaneously with the summons. No form has been prescribed for a combined summons Form "N" in the First Schedule to the Rules is for an ordinary summons and not for a combined summons If the learned Cheif Justice had intended that a combined summons shall be used in our High Court he should have said so in the Rules and also provided a prescribed form for it
I must emphasise that I see nothing wrong with this practice of long standing in the use of a combined summons as long as the Plaintiff
does not shorten the period of 21 days after entry of appearance allowed by Rule 22 (1 ). The Plaintiff must act as if he served the Defendant with the Declaration immediately after he entered appearance to defend and must allow the period of 21 days to begin to run on the next day after entry of appearance. Even in the Republic of South Africa where the Rules of the Supreme Court specifically
provide for a combined summons the 21 days begin to run after entry of appearance and not when the combined summons was served upon the Defendant. Their Rule 22 (1 ) reads
"Where the defendant has delivered notice of intention to defend, he shall within twenty-one days after service upon him of a declaration or within twenty-one days after delivery of such notice in respect of a combined summons, or within l4 days after the service upon him of further particulars to such declaration or combined summons, as the case may be, deliver a plea with or without a claim in reconvention, or an exception with or without application to strike out" (My underlining)
The notice referred to in respect of a combined summons is Notice of Appearance to Defend In the case of a combined summons is when entry of appearance is made. In the case of an ordinary summons the decisive moment is when the declaration is served on the Defendant
and this second one is what our Rule 22 (1 ) is concerned with. We must not interpret it as if it relates to a situation where a declaration was served at the same time with the summons. As I have earlier stated it presupposes that the Plaintiff had complied with Rule 21 (1 ) and served the declaration on the Defendant within 14 days after entry of
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appearance. The apprehension expressed by the Plaintiff that there would be chaos if the defendants were allowed 21 days after entry of appearance, is not well founded. In the summons the defendant is ordered to make entry of appearance within a specified period after service of the summons, if he does not enter appearance to defend within that specified period the Plaintiff may apply for a default judgment I do not see how there can be any chaos as long as the Plaintiff is protected by rule 18 (3) by compeling the defendant to enter appearance within a specified period.
Finally I must point out that a practice of long standing cannot override the High Court Rules prescribed by the Chief Justice under Section 16 of the High Court Act 1978. I am surprised that our Rules which are almost identical in all respects with the Rules of the Supreme Court of South Africa, the drafters of our 1980 Rules decided that as far as the summons are concerned our Rules should be different {see Rule 17(1 ) of the South African Rules and compare it with our Rule 18(1 )
In the present case the Defendants entered appearance to defend on the 24th May, 1985 hence the period of 21 days must begin to run on the next day (the 25th May, 1985). The Defendants had until the 18th of June either to plead or to request for further particulars So the Plaintiff's notice to file plea in terms of Rule 26(2) of the Rules, served on the Defendants on the 17th June, 1985, was prematura as such a step could only be taken on the 19th June, 1985.
For the reasons I have endeavoured to explain it is ordered that
The Plaintiff's application in terms of Rule 30(1 ) to set aside the Defendants' Request for further particulars is dismissed,
The Plaintiff's application for default judgment is dismissed,
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The Defendants' application to compel the furnishing of further particulars is granted. The Plaintiff is ordered to furnish the
requested further particulars within 21 days from the date of this judgment.
The Plaintiff is ordered to pay costs. I was not persuaded that the dispute was of such a complex nature that the Defendants had to instruct a senior counsel to appear with a junior counsel.
J.L. KHEOLA
JUDGE.
11th September, 1985.
For Plaintiff In Person
For Defendants Mr. Kuny
