CIV/T/420/86

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

J.C.
DAMBHA HOLDINGS (PTY) LTD Plaintiff

and

M. &
C CONSTRUCTION 1st Defendant '

IAN SCOTT
MILLER 2nd Defendant

MASERU
TYRE CO. 3rd Defendant

ORDER

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 26th
day of June, 1987.

The first
and third defendants have taken exception to, and also make
application to strike out parts of the plaintiff's claim.
Application
is made under rule 29 of the High Court Rules (which I shall
hereafter refer to as "the Rules" or by rule).
I regret
that it proves necessary to set out the plaintiff's entire
declaration:-

1. "
   Plaintiff is J.C. Dambha Holdings (Pty) Ltd. a company operating in
   Butha-Buthe and incorporated under the laws of Lesotho.

   
   

2. First
   defendant is M.&C. Construction a company operating in Maseru
   and incorporated under the laws of Lesotho of which
   the second
   defendant is a Director.

   
   

3. The
   Second defendant is Ian Scott Miller of Maseru having an interest
   in and being a Director of the First and Third defendants
   herein.

   
   

4. Third
   defendant is also a company incorporated under the laws of Lesotho
   of which the Second

   
   

2

defendant is a Director having an interest to the said third
defendant.

5. On
   the 2nd day of August 1982 and at Maseru the second defendant
   herein representing the first defendant entered into a written

   contract of sale with the plaintiff the terms and conditions
   whereof were inter alia:-

   
   

1. sale
   by the second defendant to the plaintiff of developed residential
   land identified as site no.184 Maseru West, Maseru
   Reserve for the
   total sum of M85,000-00.

   
   

2. Payment
   of the sum of M42,500-00 upon occupation thereof.

   
   

3. Payment
   of the balance of M42-500-00 together with interest thereon @ 10%
   per annum upon the date on which the Lease in respect
   of the
   bottom portion of the land is transferred into the name of the
   Purchaser. Mote that there was no time clause as all
   that was
   required was for the purchaser to pay M42-500-00 on occupation -
   copy of the sale is annexed. While the sale was
   entered into on
   2nd August, 1982, it appears that the deposit in terms of clause
   (3)(a) of the contract was paid in March
   and April, 1982. The
   defendant received and accepted the sum of M42 500-00 without any
   conditions and the plaintiff took
   occupation as agreed.

   
   

6. On
   the plaintiff taking occupation of the premises it appears that the
   plaintiff entered into a contract of lease whereof plaintiff
   rented
   the premises to the second defendant at a sum of M700-00 per month
   the cheques being issued in the name of the second
   defendant, it
   appears that

   
   

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certain cheques were paid but others were unilaterally stopped.
Copies of stopped cheques are attached.

7. It
   was a term and condition of the sale contract that the
   Purchaser/Plaintiff would occupy the premises on payment of the
   initial
   M42 500-00 which the plaintiff paid. Plaintiff did in fact
   occupy the premises and rent them to the second defendant. Up to
   this
   stage the plaintiff was not in breach of the contract of sale.

   
   

7. After
   the plaintiff occupied the premises and leased them to the second
   defendant for reasons best known to the second defendant
   the latter
   was not available to effect transfer and time was running out for
   the second defendant -see Mr. Liebetrau's letter
   dated 9th August
   1982 a copy whereof is attached. From this it now emerges that owing
   to the fact that time had run out parties
   agreed to novate the
   contract which was duly signed and stamped on 2nd August 1982 (we
   have underlined).

   
   

7. The
   plaintiff after having paid the requisite sum of M42 500-00 and
   rented the premises to the second defendant and now expecting

   fulfilment of clause (3)(b) of the contract of sale by the second
   defendant, apparently received communication from the second

   defendant that the sale had been cancelled due to default on the
   part of the plaintiff. It is not clear how the plaintiff was
   alleged
   to have been in default when:-

   
   

1. he
   had fulfilled the material requirement of the contract by paying
   the requisite sum of M42 500-00;

   
   

2. the
   Lease was not forthcoming from
   

   
   

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the second defendant in terms of clause 3(b) of the contract of sale;

3. second
   respondent has rented the premises at M700-00 per month.

   
   

10. Aghast
    with second defendant's reaction, plaintiff communicated his
    feeling to Mr. Liebetrau -copy there and dated 27th July,
    1983 is
    attached. Mr. Liebetrau replied - see his letter of 16th August
    1933 attached. On 29th August, 1983 Mr. Liebetrau nevertheless

    wrote to the plaintiff informing him that
    

    
    

'this serves to record that Mr. Miller telephoned me on 26th instant,
to say that he would revert to me within the next fortnight
with
funds necessary for the purpose of reimbursing you in connection with
the cancelled sale.'(we have underlined)

Copy of the letter is attached.

On 13th September Mr. Liebetrau wrote in reply to plaintiff's letter
of nth September, 1983 to say he was embarrassed by Mr. Miller's

failure to get in touch with him. Copies of the letters are attached.

From the above it is clear that plaintiff constantly exercised and
was conscious of his rights while the second defendant sold
dummies,
waved ploys and was deceptive. Plaintiff performed part of his
bargain. Accordingly, it is the second defendant who resiled
from the
contract and the second defendant is in breach of the terms and
conditions of the contract of sale and not the plaintiff.

10. 
    The second defendant also resiled from the

    
    

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contract of lease by not paying the plaintiff rent as agreed and the
second defendant is in breach of the aforesaid contract of
hire of
premises from the plaintiff.

WHEREFORE Plaintiff prays for an order against the defendants jointly
and severally, the one paying and the others or other to
be
absolved:-

1. specific
   performance from the defendants jointly and severally that is to
   say an order that defendants deliver to the plaintiff
   certain
   premises, that is to say: a developed residential land and the
   buildings and improvements thereon identified as site
   no.184,
   Maseru West, Maseru Reserve. ALTERNATIVELY; Damages in the sum of
   M42.000-00 plus interest thereon at current bank
   rates.

   
   

2. Rant
   at the sum of R700-00 per month plus interest thereon at current
   bank rates per annum with the effect from the date when
   the second
   defendant in person or representing the first and third defendants
   herein rented the aforesaid premises subject
   matter of this claim
   from the plaintiff.

   
   

3. Better
   alternative relief and

   
   

4. Costs
   of suit on attorney and client scale."

   
   

Exception
is taken under three heads, that is, on the basis that the
plaintiff's claim

(i) lacks averments which are necessary to sustain an action against
the first or third defendants (rule 29{1)(a);

(ii) is vague and embarrassing (rule 29(2)(b); and

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(iii) does not comply with the Rules of Court (rule 29(3){b).

Application
is also made under rule 29(5) to strike out parts of the plaintiff's
claim, on the ground that those parts contain averments
which are
scandalous, vexatious, argumentative, irrelevant or superfluous.
Taking all four applications together, the first and
third defendants
have raised some 21 separate objections to the pleadings. For the
sake of brevity I consider it is best to consider
the plaintiff's
claim and further particulars by paragraphs seriatim.

Paragraphs
1 and 2

Despite a
request for further particulars, the plaintiff, contrary to rule
13(8), in reply stated that the location of the registered
office of
the plaintiff is "within the knowledge of the defendant company"
but nonetheless stated that the "plaintiff
has no knowledge of
where the registered office of the company is". The same reply
is made in respect of the place of business
of the plaintiff company.
It seems to me that such reply is directed at paragraph 2 of the
plaintiff's claim. In any event, neither
paragraph complies with rule
18{8) and 18(7) respectively, in the matter of the place of business
and registered office, but also
in the name of thy first defendant.
whose full name however does appear in the contract of sale to the
claim.

Paragraphs
3 and 4

Again
paragraph 3 does not contain the second defendant's place of business
or residence, but inasmuch as it is stated that he is
a director of
the first and third defendants, his place of business could be
regarded as that of those two defendants: such particulars
are not
given in respect of the first defendant: they are however given in
respect of the third defendant in further particulars
supplied. The
exception under rule 29(1)(a) states that paragraph 3 does not reveal
the second defendant's locus standi in the
matter, but as I see it,
the latter paragraph is merely descriptive of the parties and the
aspect of locus standi may emerge in
the subsequent pleadings.

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Paragraph
5

The
paragraph recites that the second defendant but represented the first
defendant in the contract of sale, but nonetheless recites
in
sub-paragraph (a) thereof that it was the second defendant who sold
the land to the plaintiff. The contract of sale annexed
to the
plaintiff's declaration indicates that the parties to the contract
were the first defendant as "the Seller" and
the plaintiff
as "the Purchaser" and that the second defendant was but a
duly authorised representative of the first
defendant, in which case
the declaration should have alleged a sale by the first defendant.

The
declaration and the contract of sale stipulated that the purchase
price of the land in question was M85.000, and that M42,500
thereof
was to be paid upon the date of taking occupation. Thereafter
paragraph 5 of the plaintiff's claim recites that "it
appears"
that the deposit "was paid in March and April 1982", which
is clearly vague and embarrassing. Again, it
is not stated whether
the deposit was so paid before the date of occupation. More
importantly, it is alleged that "the defendant"
received
the said sum of M42,500, without specifying which defendant. A
banker's letter attached to the plaintiff's claim, indicates
that
four cheques, each made out to "a certain Mr. Miller",
totalling M42,500, were issued on four specific dates in
March 1982
by the plaintiff. In supplying further particulars the plaintiff
stated that such cheques were annexed, but in fact
they were not so
annexed. More importantly however, there is no allegation that
payment was made, pursuant to the contract, to
the first defendant,
or that payment was made to the second defendant as the agent of the
first defendant.

Paragraph
5 of the declaration indicates that "the plaintiff took
occupation as agreed": no date is stated. When asked
for further
particulars in the matter, the plaintiff stated that the third
defendant went into occupation "after the sale
and on the
signing of the first rental cheque on 20th April, 1983".

In
particular the description of the specific parcel

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of land
involved, is vague and embarrassing. In the declaration it is
referred to as "developed residential land identified
as site
No.184 Maseru West, Maseru Reserve", and again there is
reference to "the bottom portion" thereof. The contract
of
sale however refers to a "certain specified sub-division"
of Site No. 184. Reference is made in the contract to "the

annexed Sketch Plan": no plan is annexed.

Paragraphs
6 and 7

It is
obviously vague and embarrassing to state that "it appears that
the plaintiff entered into a contract of lease",
and. again that
"it appears that certain cheques were paid but others were
unilaterally stopped". It is stated that the
cheques were
"issued in the name of the second defendant", yet the
cheques which the plaintiff annexed to his claim bear
the printed
name of the third defendant. It is not stated who the parties to the
lease were, and a request for a copy of the lease,
as further
particulars, drew no response from the plaintiff. While the further
particulars supplied indicate that the "first
rental cheque"
was signed on 20th April, 1983, it is not stated as to when the first
payment of rent was due, when payment
was stopped, nor. exactly what
amount is now due (by the second defendant) under the lease.

Paragraph
8

It is
totally confusing to speak of the second defendant, to whom the
plaintiff alleges the premises were "leased", as
not being
"available to effect transfer". Again, the contract of sale
indicated that it was the first defendant who was
"the Seller".
Quite clearly a good deal of the paragraph is also argumentative,
superfluous and irrelevant.

To say
however that the "parties agreed to novate the contract" of
sale, is to entirely vitiate the earlier pleadings.
Nowhere
thereafter are the terms of such novation pleaded.

Paragraph
9

This
paragraph contains evidence rather than pleadings

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and in no
way advances the plaintiff's case. A good deal of the matter is
superfluous, and is obviously vague in its allegation
that the
plaintiff was "apparently" notified by the second defendant
of rescission.

Paragraph
10

The
paragraph can hardly be regarded as a pleading. It is a recital of
some evidence and indeed of some facts which are. superfluous
and
irrelevant to the plaintiff's claim. Further it contains slang,which
has no place in formal pleadings before this Court.

Paragraph
11

This is
but a repetition of earlier pleadings: to speak of a "contract
of lease" and a "contract of hire" of
premises is to
introduce further confusion.

Paragraph
12

The
paragraph appears to indicate that the second defendant purported to
act as agent for the other defendants, while not authorised
to do so.
For the plaintiff to say that he is "not certain" whether
the second defendant is alone liable, will simply
not do. It is for
him to say who is liable, and for what, and to sue accordingly..
First Prayer

The
prayer seeks specific performance against the defendants jointly and
severally. Quite clearly the third defendant was not a
party to the
contract of sale. In this respect I can find no allegation whatsoever
against the third defendant in the pleadings
and the annexation of
cheques bearing the printed name of that defendant is entirely
insufficient. As to the first defendant, there
is again no specific
allegation that it was liable under the contract of sale. As to the
second defendant, the contract of sale
indicates that he was not "the
Seller", and could not therefore effect transfer, and there is
in any

10

event the
statement of novation of the contract, which affects the first and
second defendants.

Further,
the contract provided that it would prove to be "null and void"
if the Seller failed to obtain conversion of
the existing title into
a lease, as provided by section 29 of the Land Act, 1979, thereafter
to effect sub-division of the land
and to obtain statutory consent to
disposal of the seller's interest in the particular portion of the
land involved, pursuant to
section 33(1) (b) (i) of that Act. Section
36(5) of the Act provides that any transaction by a lessee without
such consent "shall
be of no effect". In this respect the
learned Counsel for the first and third defendants Mr. Edeling refers
to a passage in
Jones & Buckle on "The Civil Practice of the
Magistrates Courts in South Africa" 7 Ed. VOL.II p.148: the
passage
is equally applicable to pleadings in a superior court.

"Suspensive Conditions. Where the coming Into operation of a
contract is subject to a suspensive condition there should be
an
allegation of fulfilment before a cause of action can be said to be
set out in complete detail."

There are
a number of cases quoted as authority for that proposition,
principally Badat v Essack 1955(3) SA 371(N) at p. 373, where
Kennedy
j. in the Natal Provincial Division of the Supreme Court of South
Africa held that -

"unless the plaintiff has pleaded that the condition has been
fulfilled, the declaration is excipiable."

Fulfilment
of the condition in this case has not been pleaded,so that the
plaintiff has not averred that the contract of sale is
binding upon
the parties. Again, there is the bald statement that the contract was
novated, without the terms of such novation
being stated. I cannot
see then how the plaintiff can seek specific performance.

Alternatively
damages are sought, but it is not stated against whom they are sought
and on what basis. In this respect

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the
argument at one stage turned on the applicability of the English
concept of quasi-contract (and in particular a suit of "unjust

enrichment"), and of the doctrines of Equity, to Roman Dutch
Law. But I do not see that it is necessary to pursue those aspects.

The Court is concerned at this stage, not with the application of the
plaintiff's appropriate remedy, but with the specific pleading

thereof.

Second
Prayer .

The
prayer is obviously vague and embarrassing. It is for the plaintiff
to precisely state the amount of liquidated damages, that
is, to
state the total amount of rent which is due. Again it is incumbent
upon him to state in what capacity the second defendant
acted, namely
to identify the parties to the contract of lease.

I should
point out at this stage that the learned Counsel for the plaintiff
Mr. Addy did not draw up the pleadings in this case:
there was a
change of Attorneys and he inherited the pleadings. He has not
however completely resiled therefrom. He points to rule
22{2) and
refers to the case of National Union of South African Students and
Anor. v Meyer (1973) 1 SA 363 (T), as authority for
the proposition
that a party may not except and apply to strike out at the same time.
Mr. Edeling in reply refers to rule 29{8)
and also to a statement by
the learned authors of Herbstein 5 Van Winsen on The Civil Practice
of the Superior Courts in South
Africa 3 Ed. at p.340, which
indicates that the National Union of South African Students case is
authority for the proposition
for no more than that

"If a party applies to strike out he cannot thereafter except to
the pleading."

I observe
that rule 22{1) and (2) provides that a defendant may deliver an
exception to the plaintiff's declaration, or make application
to
strike out portions of the declaration. While the rule suggests that
the defendant may follow either rather than both courses,
I do not
see that the word "or" used in the rule is necessarily
disjunctive. Further, as Mr. Edeling points

12

out, rule
29(8) indicates that a party may "apply to strike out portions
of a pleading as an alternative to an exception to
such pleading".
I note that Claassen J. did say in the National Union of South
African Students case at p. 368 that the:

"Plaintiff was faced with a choice either to note an exception
or give notice to strike out. He could not do both." .

Nonetheless
the learned Judge was there referring to an application, pursuant to
the equivalent of our rule 30(1), that is, to set
aside on the ground
of irregularity. As Claassen J. observed, had notice of an exception
been given, then under the . proviso to
rule 30(1) that would have
constituted a "further step in the cause with knowledge of the
irregularity or impropriety",
thus debarring an application to
set aside. respectfully observe therefore that the particular dicta
in the National Union case
are not relevant to an application to
strike out under rule 29(5). Indeed the following passage appears at
p.342 of Herbstein &
Van Winsen:

"Where more than one exception is taken or an exception and a
motion to strike out are argued together and the excipient is

substantially successful on the main or most important exception or
application he will usually be awarded his costs."

The case
of Standard Bank of SA Ltd v Milner (1932) OPD 54 at p.58 is quoted
in Herbstein & Van Winsen at p.142 as one of the
authorities for
that proposition, the learned authors observing that in that case,
the

"plaintiff excepted to and applied to strike out certain
paragraphs in defendant's plea. As the exception succeeded the
application
to strike out fell away. The Court never­theless
ordered that plaintiff should also have the costs of the application
as plaintiff
would have succeeded on it also had it not fallen away".

Rule
29(8) is quite clear in the matter, and the first and third
defendants were entitled to bring the application to strike out,
in
the least as an alternative to the exceptions

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taken.
Mr. Edeling submits that the main exception could be first
considered, and ultimately the application to strike out as an

alternative to the exceptions.

Mr. Addy
submits that the fact that the first and third defendants have filed
pleas, indicates that the plaintiff's declaration
reveals a cause of
action. I agree with Mr. Edeling that this is a non sequitur, and
that the filing of a plea cannot remedy a
defective claim. In any
event, the provisions of rules 22(2) and 29(6) indicate that a
defendant may deliver a plea with an exception
or an application to
strike out.

As I said
earlier, because of the multiplicity of grounds involved in the
combined exceptions and application to strike out, I dealt
with the
plaintiff's declaration seriatim It proves necessary now to
adjudicate on each exception and the application to strike
out
separately.

Rule
29(3)(b);

While the
plaintiff did not in paragraphs 1, 2, and 3 of the 1 claim ocomply
with the Rules, I would nonetheless have otherwise
ordered suitable
mamendment.

Rule
29(1)(b):and (2)(b):

I find
that there are insufficient averments which are necessary to sustain
an action against the first and third defendants, or
indeed against
the second defendant, compounded as the situation is by the vague and
embarrassing pleadings to which I have referred.

Rule
29(5):

While the
first and third defendants must succeed on the latter two exceptions,
I consider, as a court of first instance, that it
is appropriate to
adjudicate also on the application to strike out. I would in any
event have been prepared to strike out the paragraphs
or passages
which are argumentative, irrelevant or superfluous, to which I have
referred above. Nonetheless I do not see that
the plaintiff's claim
would have been necessarily vitiated by any such striking out.

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As to the
latter two exceptions, Mr. Addy submits that while the pleadings
leave much to be desired, that he has received fresh
instructions
from his client, that the Court has a wide discretion under rule 59
and should order amendment, as otherwise the plaintiff,
through no
fault of his own, will incur the costs of a fresh action. As Mr.
Edeling points out, there is no application to amend
before me: the
plaintiff had three notices under rule 29, that is, of the need for
amendment. As to costs, the plaintiff must in
any event bear all
wasted costs, so that I cannot see that unnecessary costs will be
incurred by the institution of a fresh action.

When it
comes to amendment, I observe that precise pleadings are as much for
the information of the Court as the opposing party.
Taking the
present pleadings I cannot imagine where amendment would begin and
end. It is not for the Court to speculate as to what
the plaintiff's
case might be. I feel constrained to observe that the pleadings in
this case must be unique, in that in places
they bear little
resemblance to formal pleadings, and in that there is heaped
confusion upon confusion. In all the circumstances
I allow the
exceptions under rule 29(1)(b) and 29(2)(b) and order that the
plaintiff's entire claim be struck out, with the costs
of all
proceedings to date to the first and third defendants.

B.p.
Cullinan

Chief
Justice

26.6.87.

For the
Plaintiff : Mr. a. Addy

For the
Defendants : Mr.C.S. Edeling