C. of A.
(CIV) No. 4 of 1981
LESOTHO COURT OF APPEAL
matter between :
an appeal from a judgment of the learned Chief Justice upholding an
exception brought by the respondent (to whom I shall
refer as the
defendant) against the summons and declaration of the appellant (to
whom I shall refer as the plaintiff). The exception
double-barrelled one based both upon vagueness and embarrassment and
upon absence of a cause of action.
summons the plaintiff sought an order restraining the defendant from
interfering with her performance of her chiefly rights
in the area of
Khubetsoana, Ha Ramakoro, Matsekheng in the Berea district.
summons was accompanied by a declaration. Two requests for further
particulars were directed at this declaration, by different
attorneys. Both were answered. The material allegations that are made
are the following : The plaintiff, a widow, is the proclaimed
chieftainess of Khubetsoana, Ha Ramakoro, Matsekheng in the Berea
district. The defendant is proclaimed as chief of Moletsane,
Matsekheng in the district of Berea. Then the plaintiff alleges, in
paragraph 3, that before the defendant was proclaimed chief
the defendant, towards the end of 1963, was placed by the principal
chief of Kueneng, to whom the plaintiff is subordinate,
in one of the
plaintiff's villages called Setorong, Ha Mofolo to man an office
which the principal chief was opening in that village.
was asked what is the boundary between the parties in relation to the
so called village, and she answered that there
is none. In answer to
a further question as to whether there has been a boundary dispute
between the parties, the plaintiff answered
that there has been none
as far as she is concerned. The following further questions by the
defendant drew the response that the
defendant was not entitled to
particulars or that they were not required by him, namely, was the
defendant proclaimed chief of
Ha Moletsane after he had been placed
at Setorong and Ha Mofolo; where exactly is Setorong and Ha Mofolo in
relation to Ha Moletsane
Matsekheng; would the plaintiff supply a
sketch plan indicating where Moletsane Matsekheng, Setorong Ha Mofolo
are situated; where
exactly is Khubetsoana Ha Ramakoro in relation to
Moletsane; would the plaintiff supply a sketch plan indicating where
last-mentioned areas are situated; where exactly is the
boundary that is "Lesela-tsela" between the parties; and
the plaintiff indicate in the last-mentioned sketch plan the
boundary between the parties. Asked what action she had taken when
the defendant was placed at Setorong, Ha Mofolo the plaintiff
answered that she had taken none.
plaintiff's next allegation, contained in paragraph 4 of the
declaration, is that since about 1973, but more particularly since
about the year 1976 the defendant has despite demand to desist
wrongfully and unlawfully been allocating fields and building sites
at Setorong village as well as at the plaintiff's other villages;
cutting thatching grass and trees under the plaintiff's control;
reserving pastures on land under the plaintiff's control, and when
the plaintiff has herself reserved pastures, grazing such pastures;
and impounding livestock on land under the plaintiff's control.
The following questions directed to this paragraph were all
unanswered on the basis that they were said to constitute matters for
What fields and building sites were allocated by the defendant and
were these fields, and buildings allocated?
what 'other villages1 of the plaintiff is the defendant allocating
fields and building sites?
exactly was the thatching grass and trees cut? A sketch plan showing
land marks and boundaries indicating where the trees
grass were cut would be helpful.
exactly did the defendant interfere with grazing rights of the
exactly was livestock impounded?
in paragraph 5 the plaintiff alleges that the defendant's conduct
causes a great deal of confusion and dissension among
subjects; interferes with the plaintiff's proper administration of
her area; and amounts to the area being under
dual control contrary
to law. The following questions directed at this paragraph also drew
the answer that the matter requested
was matter for evidence :
"(a) The plaintiff is required to state exactly which area falls
under the plaintiff and which area falls under the defendant.
(b) The plaintiff is required to state what portion of his (sic) area
falls under dual control and what area does not.
(c) The plaintiff is required to state how this dual control came
(d)(i) Did the plaintiff refer this matter to the Ministry of the
(ii) If so what action was taken? Full particulars of the action
taken are required."
grounds advanced by the defendant for his exception that the
plaintiff's pleadings are vague and embarassing are the following
"(i) The area in which the defendant wrongfully exercises
jurisdiction is not clearly stated.
(ii) It is not clear whether the defendant has any area of
jurisdiction at all.
(iii) It is similarly not clear whether the defendant has encroached
on the plaintiff's area of jurisdiction.
(iv) It is not clear whether the defendant's proclamation as chief
and placement at Setorong was in fact an encroachment on the
The grounds for the exception of no cause of action are the following
"(i) If the defendant is proclaimed as chief and
Setorong Ha Mofolo he is entitled to allocate soil, distribute
thatching grass, reserve pastures and impound stock.
(ii) The defendant cannot be restrained from exercising the powers of
a chief if he is proclaimed.
(iii) If there is no boundary between the plaintiff and the defendant
and this results in confusion (the remedy) is the one prescribed
section 5(8) to (12) (of the Chieftainship Act 22 of 1968, as amended
by Order No.29 of 1970).
(iv) It is ultra vires of the courts to make a
boundary between the parties or to stop chiefs within an
administrative area from exercising their lawful powers.
(v) The plaintiff (sic) has been gazetted in terms of the law, and
his powers flow from the law, and his powers flow from law (sic)".
learned Chief Justice upheld the exception. He pointed to the
problems with which jurisdictional disputes between chiefs are
fraught, indicated that underlying the case there probably was a
dispute as to boundaries, and drew attention to the administrative
remedies provided by section 5 of the Chieftainship Act 22 of 1968,
stating that "this Court has on many occasions insisted
these being exhausted before it will interfere". It appears that
the exception was upheld not on the basis of there being
no cause of
action but on the grounds of vagueness and embarrassment. This is
made apparent by the following passages in the judgment:
"It may be the plaintiff has a cause of action but the real
objection to the declaration is that on the facts as disclosed
impossible for the defendant to make a sensible plea unless the
request for further particulars (is) adequately dealt with......But
unless this (the boundary dispute) is clarified in the pleadings the
Court will inevitably get bogged down with side issues...
Court is a superior court of record and I shall not be a party to a
reduction of its status to the level of pleadings
we often see in
local and central courts".
regards the exception based on vagueness and embarrassment,Mr.
Beckley for the plaintiff originally took the point that no prior
notice to remove the cause of embarrassment had been given by the
defendant as is required by Rule 29(2) of the High Court Rules.
Rule reads :
"(2)(a) Where any pleading is vague and embarrassing, the
opposing party may(the word "may" is inserted by the list
of Printers Errors and Omissions High Court Rules 1980 dated 2nd
1981), within the period allowed for the delivery of any subsequent
pleading, deliver a notice to the party whose pleading
stating that the pleading is vague and embarrasing setting out the
particulars which are alleged to make the pleading
so vague and
embarrassing, and calling upon him to remove the cause of complaint
within seven days and informing him that if he
does not do so an
exception would (sic) be taken to such pleading.
the cause of complaint is not removed to the satisfaction of the
opposing party within the time stated such party may take
exception to the pleading on the grounds that it is vague and
has a counterpart in the Uniform Rules of the Supreme Court of the
Republic of South Africa (Rule 23(1) thereof) and for
there has been a similar provision in the rules of the magistrates'
courts of that country, (Rule 17(5)(c) of the rules
Magistrates' Courts Act 32 of 1944)
Africa the corresponding rules have been held to lay down a
peremptory pre-condition to the taking of an exception on the
of vagueness and embarrassment. See Viljoen v. Federated Trust Ltd
1971(1) S.A. 750(0) at 753 E-H; N K P Kunsmisverspreiders(Edms)
v. Sentrale Kunsmis Korporasie(Edms) Bpk en 'n ander 1973(2) S.A.
680(T) at 688; Jones and Buckle The Civil Practice of the
Magistrates' Courts in South Africa 7th Ed Vol. 2 p.l6l; and Nathan
Barnett and Brink Uniform Rules of Court 2nd Ed p.154. It seems
me, it is unnecessary to decide the question, that the same
construction should be placed on the local rule despite the use
the word "may". The purpose of this kind of rule is to
discourage the taking of unnecessary exceptions, and the intention
the legislative body appears to be that no exception on the grounds
of vagueness and embarrassment may be taken until an opportunity
remedy has been given and declined.
unfortunately for Mr. Beckley's point, the present High Court Rules
on which he relied came into force three months after
publication, which publication occurred on 25th July 1980. Notice of
exception was given on 7th March 1980, that is many
months before the
new rules had come into force. Rule 29(2) is the kind of rule which
cannot possibly be retroactive in operation.
Under the old rules,
which are practically silent on the question of exceptions, there is
corresponding to Rule 29(2) (see Rule 20 of the Rules of the High
Court - High Commissioner's Notice 8 of 1941).
therefore becomes necessary to decide whether the plaintiff's
pleadings are in fact vague and embarrassing. As to the test to
applied Beck's Theory and Principles of Pleadings in Civil Actions
4th Ed (by I. Isaacs Q.C. - quondam acting Judge of the Lesotho
Court) para 63 puts the matter this way :
"A pleading may disclose a cause of action or defence but may be
worded in such a way that the opposite party is prevented
clearly understanding the case he is called upon to meet. In such a
case the pleading may be attacked on the ground that it
is vague and
learned author goes on to cite the well known passage from the
judgment of Schreiner J in Getz v. Pahlavi 1943 WLD 142 at 145
"For a man who has not an explicable cause of action is in the
same position as one who has no cause of action at all".
expression "vague" is intended that a statement is either
meaningless or that it is capable of more than one meaning.
expression "embarrassing" is intended that it cannot be
gathered from it what ground is relied on by the pleader.
Leathern v. Tredoux (1911) 32 NPD 346 at 348; Lockhat and Others v.
Minister of the Interior 1960(3) S.A. 765(D) at 777 D.
sufficient test as to when an exception of no cause of action should
succeed is set out by Wessels J in Champion v. J.D. Celliers
Co. Ltd. 1904 TS 788 at 790-1. The fact that the case was concerned
with a plea does not affect the principle The learned
Judge said :
" ....... where a plea is so drawn that a plaintiff can say, 'I
admit all your facts, but even if I do the facts that you
set out do
not constitute an answer in law to my claim', there the plaintiff
must except to the whole plea, ..... In other words,
may admit the defendant's facts, but challenge the conclusion."
further Beck (op cit) para 62.
I turn to
the exception based on vagueness and embarrassment. Two matters must
be dealt with at the outset.
Beckley contended that the defendant's proper remedy was to compel
particulars. I do not agree. The defendant had asked for
and the plaintiff had, broadly speaking, refused them. It was not
incumbent on the defendant to pursue this course
further and he was
entitled to except. Mr. Beckley also contended that if there was any
vagueness the defendant could always deny.
Again I do not agree. The
purpose of pleadings is to define issues. This entails, in the first
place, that a party receiving a
pleading should be able to understand
it in order to decide whether his reply will be admission, denial, or
confession and avoidance.
Secondly, once there has been a reply it
should be clear what has been admitted and what denied. If this is
not the result then
when the trial is reached there may be
uncertainty as to what is common cause, and what is in issue.
question is whether the plaintiff's pleadings are vague and
embarrassing. I must say that I have read her pleadings carefully,
and have had the advantage of a full argument but it is still not
clear to me quite what her case is. Once one moves from the general
complaint that certain acts of the defendant constitute a usurpation
of the plaintiff's rights, which cause confusion, most things
obscure. During argument at one stage Mr. Beckley conceded that
paragraph 3 contained no more than historical introduction
just as well be deleted. But then he argued that it contained an
allegation of a placing by the superior chief but without
of the power to do the things done by the defendant which were the
subject of the plaintiff's complaint. So that the
case may be
concerned with the place in the hierarchy of the two parties. But
that is not clear. Mr. Beckley could not clearly
tell us, nor can I
determine it from the pleadings.
matter does not end there. When one seeks to find out exactly where
the plaintiff's rights exist and where the defendant is
said to have
committed wrongful acts no answer is forthcoming. A blatant example
of this is the reference to the "Plaintiff's
(unspecified) in paragraph 4(a). What a pleader is to make of that I
do not know. More generally the plaintiff
has not defined the area
which she "controls" and has indeed declined to do so. The
potential difficulties facing a pleader
are at once apparent. What
does he say with regard to any particular unlawful act? He may be
desirous of admitting or denying it,
but how does he do either if he
does not know where it was committed so that it may be identified? Or
he may wish
confess and avoid, for instance by pleading that he has the rights of
a chief in the particular area to the exclusion or superior
of the plaintiff. But how does he do that if he is not told what area
is the one in question? It is no good to say, as
was argued, that he
knows. He is entitled to be told by the plaintiff what she complains
of before he puts forward his case.
way of testing the matter is to ask what a court would do if it were
to make an order in the plaintiff's favour. As matters
stand I think
that a court would have great difficulty, at the least, in granting
an order containing sufficient definition.
result I am of the view that the plaintiff's pleadings are vague and
embarrassing and that the exception on those grounds
leaves the exception based on no cause of action. A difficulty in
deciding this question is the uncertainty in the pleadings
discussed. Mr. Maqutu has sought to turn this to his advantage by
arguing that everything is so obscure that no cause of
action can be
perceived. I do not agree with that argument. A cause of action can
be dimly perceived. The plaintiff complains that
she controls an area
as chieftainess and that the defendant is trespassing upon it. That
is a cause of action. Although the courts
do not determine boundaries
they may decide whether there has been a trespass Moshoeshoe v.
Motloheloa 1926-1953 High Commission
Territories Law Reports 220 at
221. However, Mr. Maqutu has argued that once the plaintiff concedes,
as she does in her further
particulars, that there is no boundary
between the parties she has no cause of action, because the fixing of
boundaries is an administrative
act and cannot be performed by the
courts. For this submission he relies on Peete v. Ramakoro JC 27/52;
Duncan Sotho Laws and Customs
58-60 and, more recently, s.5(8) - (13)
of the Chieftainship Act 22 of 1968. It is well established that
it is not for the
courts to determine boundaries, but this does not
necessarily lead on to Mr. Maqutu's contention. . The very fact that
Act contains a machinery for resolving boundary
disputes shows that there may be chiefs whose boundaries are in a
state of uncertainty.
To suggest that such persons have no right at
all to take action against trespassers seems far fetched. The exact
location of their
boundaries may possibly not come into issue. On the
plaintiff's pleadings, and they alone may be looked
this stage, she falls into that class. She alleges that she is
proclaimed chieftainess over an area even if not a clearly
one. From this conclusion at this stage of the case it does not
follow that it may not be essential that for an administrative
definition of boundaries to be made before the case can proceed to
trial. It may well yet emerge that this case is concerned with
boundary dispute, in which case the plaintiff's procedure may have
been ill-chosen. But that question yet requires definition.
I am of the view that the exception based on there being no cause of
action should not succeed. It is thus unnecessary
to decide whether
Mr. Beckley is right in contending that the point argued by Mr.
Maqutu is not covered by his notice of exception.
regards costs. I do not agree with Mr. Beckley's submission that some
special order be made if the one exception should fail.
customary, and usually a wise precaution for an excipient to bring a
double-barrelled exception, and if only one of the exceptions
succede he has achieved substantial success. Nor am I prepared to
accede to Mr.Maqutu' motion for an order for costs on
and client scale. Misconceived the plaintiff's claim may be, but I do
not think that any of the special features Justifying
such an order
are present in this case.
final result I am of the view that the appeal should be dismissed
with costs, and the defendant be given leave to amend within
of this order.
Judge of Appeal
L.de V. van Winsen
L.DE V. VAN WINSEN
Judge of Appeal
this 3rd day of July 1981 at MASERU
Appellant : Mr. Beckley
Respondent: Mr. Maqutu
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