In the matter between:
VODACOM LESOTHO (PTY) LTD Plaintiff
AND
MABUSA CHATSANE Defendant
JUDGMENT
Delivered by Honourable Acting Judge Ms N. Majara
on the 26th July 2004
Applicant approached this court for a default judgment. The matter had been set down on several occasions before different judges of the High Court but could not proceed for some reason or another. It was eventually set down before me by consent of both counsels for applicant and respondent respectively. The agreed date of hearing was the 19th July 2004.
It is common cause that on the 23rd February 2004, the plaintiff issued a summons and declaration against the defendant and the latter was duly served on the same
date as per the Sheriff’s return of service. On the 2nd March 2004, the defendant entered appearance to defend but took no further steps. On the 29th March 2004, defendant served plaintiff with a request for further particulars which plaintiff ignored. On the 5th April 2004, plaintiff served defendant with a notice to file Plea within three (3) days of receipt thereof as per Rule 26 (2) of the High Court Rules. Defendant failed to file a Plea and Mr Mpobole set the matter down for default judgement.
On the 19th July 2004, the matter duly proceeded before me. Before Mr Mpobole, counsel for the plaintiff moved his application for default, Mr Sekonyela, counsel for respondent raised some points in limine which I will briefly summarise as:
The matter before the court is an action and not an application therefore the application for default ought to have been made in accordance with Rule 8 of the High Court Rules which deals with applications.
In terms of court procedures set by the court and per the Registrar’s circular No. 3, contested applications ought to be filed and supported by affidavits so as to give the other party a chance to respond.
The matter before the court is not an urgent one and need not be heard whilst the court is on recess, so that even if the procedures had been complied with, the matter should be heard in due course.
Even if the court were to hear the matter and decide on it, it would still have to consider whether defendant’s request for further particulars was necessary or not.
In light of the above points, the matter(s) should be struck off the roll and plaintiff (applicant) be ordered to follow Rule 8 (1) of the High Court Rules regarding applications.
Although Mr Mpobole insisted that the court should allow them to argue the merits and let the court make a ruling with respect to both the points raised in limine and the merits, the court decided to consider the points in limine first, for I must admit I ended up somewhat baffled by the arguments raised.
It is provided in terms of Rule 22 (1) that:
“ Where the defendant has entered appearance to defend he shall within 21 days of service of the 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.
Although the defendant did file a request for further particulars as per the above rule, he did so after the stipulated 21 days period had already lapsed. However, plaintiff served him with a notice to deliver a plea within three (3) days of receipt of such notice. Defendant failed to deliver a plea as requested whereby the plaintiff set the matter down for application for judgment and duly served defendant with notice as per the provisions of Rule 27 (3), that such an application was going to be made before the court.
The matter before me was thus an application for default judgment as envisaged by this rule. In considering Mr Sekonyela’s points in limine I had to make reference to the Rules of the High Court as well as other available authorities. In my humble opinion, Rule 8 deals with application proceedings within whose ambit an application for a default judgment in action proceedings does not fall. Mr Mpobole’s application was therefore made in accordance with the provisions of Rule 27 (3).
With regard to Mr. Sekonyela ‘s argument that even if the court were to hear the application and decide on it, it would still have to consider whether defendant’s request for further particulars was justified or not, especially since the amount involved was serious, the court was guided by Rule 25 (3) which provides:
“The request for further particulars together with the reply thereto shall form part of the pleadings. But the request alone, unless and until a reply is received shall not be considered to be a pleading.” (My emphasis)
The request was indeed made but due to the fact that defendant had failed to file a plea, the request could not be considered as a pleading nor part of a pleading because it was standing alone. See Rule 25 (3). In addition, the request was filed after the stipulated period of (21) days had lapsed. This discharged plaintiff from the duty to comply with it. This was also stated by Hon. Mr. Justice J.L. Kheola (as he then was) in Petrose Ramollo v Charlie Goetsch CIV/T/45/85 (unreported). The defendant in that case had failed to file a plea within the stipulated period but had instead, filed a request for further
particulars out of time. The plaintiff in that case had also ignored the defendant’ request and had gone on to set the matter down for hearing for a default judgment. When dealing with the question whether the plaintiff was justified to proceed in the manner he did, the Hon Judge had this to say on page 2:
“The words I have underlined in Rule 25 (3) make it abundantly clear that the request alone is not a pleading and for that reason the plaintiff was under no obligation to reply to a request that was out of time. He is only bound by the Rules of Court where the request made falls within the 21 days allowed by the Rules.
At page 3 of the judgment the Hon. Judge went on to state:
“It seems to me that when a notice to file a plea is made the defendant cannot deliver any pleading he pleases, he must file the pleading referred to in the notice.”
The case at hand is very similar to the one from which I have just cited and I think the Honourable Judge therein aptly summarised the legal position as is provided for by the Rules of Court. The defendant in this case failed to take the right step and was therefore barred from delivering the pleading as he had been
required to do so. See Rule 26 (2) & (3).
10.With regard to Mr Sekonyela’s argument that there was no urgency that justified the matter having been placed before the court whilst it was still on recess whereupon he also cited a certain circular that was made by the Registrar, the court failed to appreciate the point he was making. As I have already stated earlier, the matter had been postponed on numerous occasions and eventually ended up before me. It was duly set down for hearing by consent and I therefore do no think his concern is justified, not to mention the fact that a circular is not a Rule of Court and therefore cannot be allowed to be cited as the basis of Mr Sekonyela’s point.
11.On the question of the court having to consider whether or not the request for further particulars is necessary or not, as I have already mentioned the request was standing on its own and was therefore not a pleading. See Rule 25 (3). It was also filed out of time and the defendant was therefore barred from making it unless he had made an application to the court for the removal of the bar. See Rule 26 (6). Defendant did not make such an application.
12.For these reasons, the points the defendant raised in limine
are dismissed with costs.
N.MAJARA
ACTING JUDGE
For Defendant: Mr Sekonyela
6
