CIV/T/471/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEKERE
MOTAKETSANE PLAINTIFF

AND

ADJUDICATOR
OF THE LESOTHO

EVANGELICAL
1st DEFENDANT

CHURCH
SCHOOLS

MINISTER
OF EDUCATION 2nd DEFENDANT

ADJUDICATOR
OF THE MINISTRY OF EDUCATION 3rd DEFENDANT

ATTORNEY
GENERAL 4th DEFENDANT

TEACHER'S
SERVICE COMMISSION 5th DEFENDANT

LESOTHO
EVANGELICAL CHURCH 6th DEFENDANT

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 23 February 2005

The sixth
Defendant herein has raised an exception against Plaintiffs
declaration as being vague and embarrassing. He has set out
the
particulars which he alleges render the pleading vague and
embarrassing.

At the
hearing of the exception Mr Mosito raised a point in limine from the
bar that the requirements of Rule 29 (2) had not been
complied with
and that for that reason the exception had to be dismissed. Mr Sello
has conceded that it is competent to raise such
a point from the bar.
That it is so was laid down as follows by LEVY AJ. in FRANK LEBETE V
FRASERS (LESOTHO) LTD 1985 - 1990 LLR
151 AT 153:

" 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
notice of exception is impugned on the grounds that it has failed to
call upon the Plaintiff to remove the cause of complaint
before it
was launched. Rule 29 (2) provides as follows:

29 (1)
a) ............................

b) ............................

2. (a)
   Where any pleading is vague and embarrassing the opposing party,
   within the period allowed for the delivery of any

   
   

subsequent pleading, deliver a notice to the party whose pleading is
attached, stating that the pleading is vague and embarrassing
setting
out the particulars which are alleged makes (sic) 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 be taken to such pleading.

It is
clear therefore that a party whose pleading is impugned on the
grounds of being vague and embarrassing must be given an opportunity

to remove the allegedly escapable matter before taking the exception.

In the
present case no such opportunity was given the Plaintiff. It follows
that the notice of exception has to be set aside. It
is so set aside
with costs.

T.
NOMNGCONGO

JUDGE

23
February 2005

For
Plaintiff : Mr Mosito

For
Defendant : Mr Sello