CIV/T/263/85

IN THE
HIGH COURT OF LESOTHO.

In the
Matter of

FRANK
LEBETE Plaintiff

V.

FRASERS
(LESOTHO) LTD t/a Defendant

FRASERS
CROCODILE RETAIL.

JUDGMENT

Delivered
by the Hon. Acting Mr. JusticeD.S Levy on the 2nd day of June, 1985.

The three
actions with which this judgement is concerned are CIV/T/274/85,
263/85 and 264/85. They are all based upon identical
facts the
employer is the same in each case, the employees all seek the same
relief on the same ground, and they are properly consolidated
I will
refer in this judgement to CIV/ T/263/85 only but the reasons save in
one instance are equally appropriate to the other
two cases.

Plaintiff
claimed an order declaring that he is an employee of the Defendant
and that he be reinstated in the post which he occupied
prior to his
wrongful dismissal with payment of all accrued salary remaining
unpaid from the date of his purported dismissal to
date'
Alternatively he claims payment of damages for wrongful dismissal in
an amount of R96,000-00, being 25 years salary, together
with various
minor claims in respect of the loss of certain increments and in lieu
of notice of dismissal the nature of all of
which is unimportant for
present purposes.

The
summons initiating Plaintiff's action was served on the Defendant
together with a declaration on 19th April, 1985. Although
Defendant's
notice of ap­pearance to defend, rather surprisingly, is dated
18th April, 1985, it was served on Plaintiff's Attorney
on 19th
April, 1985.

2

On 23rd
May, 1985, Defendant filed a notice of exception alternatively of an
application to strike out certain matter from Plaintiff's
summons
being Annexures 'A', 'B' and 'C thereto and paragraphs 7, 9,10,11 and
13 on the ground that matter contained therein is
irrelevant or
superfluous The references in fact are to annexures and paragraphs of
Plaintiff's declaration to which the notice
must obviously relate.

On the
same day, that is, 23rd May, but after service of the notice of
exception, the Plaintiff served a notice of bar on the Defendant
to
file his plea within 3 days thereafter.

In the
other two matters, the notices were reversed in point of time, that
is, the notice of bar in each case was served before
the notice of
exception although both services took place on 23rd May, 1985.

On 29th
May, 1985, Plaintiff gave notice of an application to set aside the
Defendant's exception firstly as being an irregular
and improper
proceeding in that it did not comply with Rule of Court 22(1) not
having been served within 21 days of service of
the Declaration,
secondly, that there was no plea over in terms of Rule 22(2),
thirdly, that the notice of exception does not specify
a date for
hearing of the exception

The
latter two grounds need not detain me. A Defendant is not obliged to
plead over when an excep­tion is taken, Rule 29(6)
specifically
provides that the Defendant, in his discretion may deliver a plea
with his notice of exception but that he is not
compel­led to do
so. clearly then the provisions of Rule 22(2) are permissive only.
Indeed in the view I take of the declaration
to plead to it would be
a highly embarras­sing and invidious task. Nor need such notice
of excep­tion specify the date
of hearing This is not a
require­ment of a notice of exception and is not general
prac­tice. Once the notice of exception
is given, it may be set
down for argument thereafter by arrangement with the Registrar and by
agreement between the parties'

3

attorneys
on a mutually suitable date as is indicated by Rule 29(4).

In
argument as well, Plaintiff's attorney sug­gested that a notice
to strike out could not be com­bined with a notice of
exception
even though in the alternative But this procedure is specifically
autho­rised by Rule 29(8).

Plaintiff's
notice to set aside the notice of exception was followed by a notice
of motion by Defen­dant supported by affidavits
for condonation
of the non-compliance with the rules and for an extension of the time
to except to or strike out matter from Plaintiff's
declaration and to
plead subsequently. In response to this, the Plaintiff filed a notice
of application to set aside Defendant's
previous notice of
application for condonation etc.as an irregular proceeding for
non-compliance with various provisions of Rule
8. None of these
failures are substantial or appropriate to interlocutory proceedings
and I have no hesitation in dismissing this
application.

I should
add as well that it seems an unnecessary procedural step to have
launched a substantive applica­tion to set aside the
notice of
exception and applica­tion for condonation on grounds which would
equally well and more conveniently have been raised
in limine at the'
hearing of the exception. I disagree with Beck's Theory and
Principles of Pleading 4th Edition at P. 107 where
it is suggested
that there is no reason why an irregular exception cannot always be
set aside under Rule 30(1) on a substantive
application.
Inconvenience and the unnecessary costs incurred by such a step seem
to me to indicate the contrary The judgment of
Schutz P. in Kutloano
Building Construction v Maseele Matsoso & Others L.A.C.
CIV/A/16/84 clearly supports this view.

Plaintiff
subsequently filed a most prolix affidavit in reply to the
application for condonation which itself drew a substantial
answer
from Defendant.

4

On the
2nd day of argument, Defendant's counsel withdrew Defendant's notice
of exception to Plaintiff's summons thus leaving only
the application
to strike out remaining. The question that now arises is whether this
application is out of time

Under
Rule 29(5) a party may make such an applica­tion within the
period allowed for delivery of any subsequent pleading Rule
22(1)
allows a Defendant 21 days from service of the declaration upon him
to deliver a plea or an application to strike out Even
excluding
Sundays and Public holidays and the 19th April, 1985,when service of
the summons and declaration were affected, 21 days
expired well
before 23rd May, 1985 Defendant's counsel contended that Defendant
was entitled to an additional 14 days being the
period within which a
Plaintiff is obliged to serve his declaration. However, the Plaintiff
would have been entitled to serve his
declaration within one minute
of the moment that appearance to defend was entered, so that there is
no reason why an additional
14 days should be added to the 21 days
and not just one minute It might have been argued more cogently that
rather the minimum
of 7 days required to be allowed for entry of
appearance should be added, but this argu­ment also falls away if
one regards
the declaration as having been served at the time that
appearance is entered, and it appears to me that the period allowed
by Rule
22(1) for the delivery of notice of a striking out
app­lication would be 21 days counted from the day after the
entry of appearance.
This view was accepted by counsel in the case of
While v Moffett Building & Contracting (Pty) Ltd 1952 (3) S.A. L
R. 307 OPD
relying upon Nathan & Bowker Rules and Practice of the
Supreme Court 2nd Edition P 50 commenting upon similar rules, but the

Full Court found it unnecessary to make any finding upon the matter.

However,
other considerations enter into this matter. An examination of the
Plaintiff's declaration and in particular of the paragraphs

complained of, which in all 3 cases are in identical terms, reveals
that the

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Plaintiff
has put into his declaration a rambling and disconnected story which
is largely irrelevant argume­ntative and superflous
to the issues
raised by the Plaintiff. This story is broken down into numbered
paragraphs and called the Plaintiff's Declaration.
As an illustration
of the nature of these paragraphs, I quote paragraph 11

"On
Monday the 1st April. 1985, in the morning, Plaintiff went to the
Defen­dant Company's General Manager or Area Manager
Mr. Risseuw
to collect his salary for March, 1985 in the usual way Upon his
arrival Mr. Rissuew made Plaintiff to sign for his
March salary in
the usual manner except that this time he (Risseuw) appeared to hide
or conceal what was written on the paper Plaintiff
was signing and
showed him where to sign. But as the March cheque appeared to be as
usual, that is, as his salary was not less
or more and was as
reflected on Annexure "A" attached hereto Plaintiff signed
and took away his March,1985 cheque All
what Mr. Risseuw said on that
day was to ask Plaintiff whether he received a copy of letter
addressed to him (Risseuw) and then
Plaintiff said "Yes"."

In my
view, this pleading is a gross breach of Rule 20(4) which requires a
pleading to contain clear and concise statement of the
facts upon
which the pleader relies for his claim with sufficient particularity
to enable the opposit part to reply thereto. All
these paragraphs
contain such a superfluity of matter with argument,opinion and
statements of immaterial and irrelevant matter
so mixed in, that it
would be an im­possible task to plead to the declaration without
the pleader himself falling into the
error of pleading argument,
opinion and evidence and so render his plea equally as unintelligible
and objectionable as the declaration.
That being so, the paragraphs
objected to should be struck out and what would be left could not be
considered as an adequate declaration.
Furthermore, the declaration
as is required by Rule 20(4), must be such that a defendant

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can
reasonably and fairly plead to it. If he cannot do so, that is, if
the Defendant cannot plead properly to the declaration then
the
declaration as served is not a document to which the Defendant can be
compelled to plead by notice of bar. See Whites case,
supra at 311/2
which though dealing with the question of parti­culars is
nevertheless apposite in casu.

In Nangle
v. Aronowitz 1949(2) S.A. 713 S.R which was followed in White's case
the Court assumed that the Defendants found themselves
unable to
plead to the declaration as served for lack of particularity and the
Court found that any notice of intention to bar
given before the
particulars had been furnished must be premature.

As
Horwitz J. said in White's case at P. 314 and which I respectfully
adopt as amended by me to fit the present case

"If the pleading in its original form as filed of record is such
that the opposite party cannot reasonably and fairly be called
upon
to plead to, or answer it, it must follow that the rule of court
requiring a defendant, for example, to plead to a declaration
(or
apply to strike out portions of the declaration) within the stated
period of 21 days after service, contemplates a declaration
which, in
form and content, a defendant may reasonably and fairly be required
to plead to."

I am
satisfied, therefore, not only that Defendant was entitled, where
appropriate, to give notice of inten­tion to apply to
strike out
after notice of bar but that such notice of bar a fortiori was
improperly given and unforceable and also that the lapse
of a period
of 21 days would not bar the Defendant from applying to strike out
matter which should not have been pleaded and which
rendered the
declaration incomprehensible.

I would
add to this as well that annexures A and B should also be struck out
since they contain purely evidentiary matter. Annexure
C. however, is
a document upon which Plaintiff relies and was properly

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annexed
to this declaration and where it is sufficiently explained in
paragraph 12.

I
accordingly order paragraphs 7,9,10,11 and 13 to be struck out of the
declarations in CIV/T/263/85 and 264/85 and the corresponding

paragraphs of the declaration in CIV/T/274/85 being paragraphs 7,9,10
and 12. I also order that Annexures A and B be struck out
of the
decla­ration in all three actions. Plaintiffs are given leave to
amend their declarations within 14 days and the pro­visions
of
Rule 22 shall apply as from the date of service of such amendments.

It
remains now to deal with the question of costs. Defendant withdrew
its exception on the second day of ar­gument but succeeds

substantially on the striking out application.

Plaintiffs
fail on the application to set aside the notices of exception and
application for condonation as irregular proceedings
Defendant
unnecessarily applied for condonation of late notice to strike out
and to plead subsequently, (although I would certainly
have granted
such condonation if it were necessary). However,Plaintiffs chose to
include in their affidavits allegations of dis­honesty
and of
attempts to mislead this Court which were totally unjustified and
deserving of opprobrium.

In all
those circumstances, I am satisfied that I will be doing justice to
all the parties if I order that no party is to pay any
of the costs
of all these proceedings. There will accordingly be no order as to
costs in respect of these various applications.

D.S. LEVX

ACTING
JUDGE.

2nd July,
1985.

For
Applicants Mr. Masoabi

For
Defendant Mr. Redelinghus.