CIV/APN/596/86

IN THE
HIGH COURT OF LESOTHO

In the
application :-

N.
FRANGOULIS 1st applicant

LESOTHO
LIQUOR DISTRIBUTORS 2nd applicant

vs

TEFO
DAVID BABELI Respondent

JUDGMENT

Deliverd
by the Honourable Mr. Justice J.L. Kheola on the 31st day of August,
1987.

On the
25th August, 1986 the Respondent instituted an action against the
APPLICANTS IN' which he claimed damages in the sum of M6,023-43
plus
12% thereon as sales tax, interest thereon at the rate of 11% a
tempore morae and costs of suit. The damages arise out of
a collision
between the vehicle of the Respondent and that of the First
Applicant.

On the
7th November, 1986 the Applicants filed a Request for further
particulars. On the 12th November the Respondent supplied some
of the
further particulars requested but refused to supply others on the
ground that they were not necessary to enable

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the
applicants to plead. In paragraph 4 of the Request for further
particulars the Applicants requested the following:-

1. Full
   particulars are requested of the damage to the Respondent's taxi, as
   alleged.

   
   

2. How
   is the amount of M6.023-43 made up and calculated.

   
   

3. What
   was the market value of Respondent's vehicle, immediately prior to
   the collision.

   
   

4. What
   is the market value of Respondent's vehicle subsequent to the
   accident.

   
   

5. What
   was the make, model and year of manufacture of the said taxi.

   
   

6. What
   was the kilometre of the said taxi, that is, how kilometres it had
   already travelled from the date of first registration.

   
   

In reply
to (a) and (b) above the Respondent annexed a quotation No.415 dated
the 11th July, 1986 made by Frank's Auto Electric
who describe
themselves as dealing in or as owners of a mechanic workshop,
welding, panel beating and spray painting. According
to them the
repair to the vehicle would cost M6,023-43. The Respondent refused to
supply the further particulars (c) to (f) above
on the ground that
they were not necessary to enable the Applicants to plead.

On the
17th November, 1986 the attorneys of the Applicants wrote a letter to
the attorneys of the Respondent warning them that if

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the
further particulars in paragraph 4 (c to f) were not supplied before
the 21st November, 1986, they shall have no alternative
but to apply
to the Court to compel the Respondent to supply the further
particulars requested. The Respondent failed to respond
to that
letter. On the 27th November, 1986 the Applicants made a substantive
application on Notice of Motion for an order compelling
the
Respondent to supply the further particulars requested and that "in
the event of the Respondent failing to furnish the
abovementioned
particulars on or before the date to be decided by this Honourable
Court, the Applicants be given leave to approach
this Honourable
Court on the same papers for an Order striking out the Respondent's
claim."

The
application is being opposed on a number of grounds. First, it is
submitted that the application ought to have been made pursuant
to
Rule 25 (6) and not as a substantive application but as an
application incidental to the proceedings pending before Court. By

making a substantive application Applicants have forced the
Respondent to incur unnecessary costs. I tend to agree with this
submission
because Rule 8 (21) of the High Court Rules 1980 reads as
follows:

"Notwithstanding anything to the contrary contained in this
Rule, interlocutory and other applicants incidental to pending

proceedings may be brought on notice accompanied by such affidavits
as may be required and set down at a time assigned by the Registrar

or as directed by a judge".

This Rule
must be read with Rule 8 (1) which reads as follows:

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"Save where proceedings by way of petition are prescribed by any
law, every application shall be brought on notice of motion
supported
by an affidavit setting out the facts upon which the applicant relies
for relief."

It is
common cause that the present application is inter.. locutory and
incidental to pending proceedings and as such ought not
to have been
brought on notice of motion but on notice to the other party. That
there is a difference between applications brought
by way of Notice
of Motion and applications brought on notice is confirmed by Rule 8
(1) and Rule 8 (21). In the cose of Yorkshire
Insurance v. Reuben,
1967 (2) S.A. 263 at p. 265 Munnik, J. said.

"There is to my mind a substantial difference between an
application being brought on notice and an application brought on

notice of motion. It could never have been intended, when parties are
already engaged in litigation and have complied with such
formalities
as appointing attorneys and giving addresses for the service of
documents in the proceedings, that, in further applications

incidental to such proceedings, the parties would be required to go
through all the same formalities again with all the concomi­tant

and unnecessary expense."

I entirely agree with the learned judge.

Secondly,
it has been submitted that the only further parti­culars to which
the Applicants were entitled were only those strictly
necessary to
enable them to plead or to enable them to make a tender. (See Rule 25
(1) ). The damages in the present action relate
to repair of the
Respondent's vehicle after it was involved in a collision with the
vehicle of the Applicants. A quotation has
been attached showing

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costs of
the repair of the parts damaged by the collision which according to
the Respondent was caused by the sole negligence of
the First
Applicant. The question of negligence and the reasonableness of the
quotation shall be decided at the trial and not in
the present
application.

I shall
now consider the further particulars requested in paragraph 4 (c to
f) and decide whether they were strictly necessary to
enable the
Applicants either to plead or to make a tender. In (c) and (d)
Applicants require the market value of the Respondent's
vehicle
immediately prior to the collision and its value subsequent to the
collision. I do not see how these particulars are strictly
necessary
to enable Applicants to plead or to make a tender because the
quotation shows how much money the Respondent has paid
or will have
to pay to restore his vehicle to the condition in which it was just
before the collision. It may be that the vehicle
will appreciate in
value after the repairs because some of the broken parts may have to
be replaced with new ones. But that is
neither hers nor there. If the
Respondent had said that as a result of the collision his vehicle was
a write-off, then he would
be required to furnish the further
particulars regarding the value of the vehicle immediately prior to
the collision and the value
of the scrap. I was referred to the case
of Masupha v. Pioneer Motors, CIV/T/660/34 (unreported) as authority
for the proposition
that the market value of the vehicle is necessary
to enable the defendant to plead. The distinction between Masupha's
case (supra)
and the present case is that in the former the entire
vehicle had been lost as a result of theft from the premises of the
defendant
where the vehicle had been left for service. In the present
case the vehicle is still available and there is no

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indication
that it was a write-off.

In
paragraph 4 (e to f) the Applicants require the make, model, year of
manufacture of the taxi and the speedometer reading i.e.
how many
kilometres it had travelled from the date of first registration. It
seems to me that these further parti­culars were
not strictly
necessary to enable the Applicants to either plead or to make a
tender. I am of the opinion that the quotation adequately
informs the
Applicants how the figure of M6,023-43 has been arrived at. If the
Applicants are of the opinion that the vehicle was
a write-off as a
result of the collision they must plead so and they must prove their
assertion at the trial. I do not agree with
the Applicants' counsel
that without those further particulars the Applicants will be
embarrassed in pleading. The Respondent has
defined with great
precision the issues which are to be tried i.e. the manner in which
the First Applicant was negligent in the
driving of his vehicle and
the parts of the vehicle which were damaged and the cost of repairing
or replacing them.

For the
foregoing reasons the application is dismissed with costs. The costs
shall include costs of bringing this application on
Notice of Motion
instead of on notice. The Applicants are ordered to file their pleas
within 21 days from the date of this judgment.

J.L.
KHEOLA

JUDGE.

31st
August, 1987.

For
Applicants - Mr. Molete

For
Respondent - Mr. Pheko