Khali v Addis (CIV/T/ 374 of 2001) [2002] LSCA 118 (7 November 2002)

CIV/T/374/2001 IN THE HIGH COURT OF LESOTHO In the matter between: MOEKETSI EDWARD KHALI Plaintiff and COLIN ADDIS Defendant For the Plaintiff : Mr. O. Sekake For the Defendant : Adv. Wessels Judgment Delivered by the Honourable Mr. Justice T. Monapathi on the 7th day of November 2002 The matter was brought to the motion Court roll on the 20th May, 2002 when then it was postponed for hearing onto the 29th May 2002. Plaintiff had agreed to provide particulars requested and to discover documents specified as scheduled by the 22nd May, 2002. The matter brought before the motion Court had been for an order in the following terms: 1. That Plaintiff's claim be struck out for failing to file his Discovering Affidavit in terms of the Honourable Court's Order dated the 6th May 2002 and in failing to furnish with the Defendant with further particulars in terms of the Honourable Court's Order dated the 22nd April 2002. Costs of this application. Further and or alternative relief. This Court disagreed and did not see how the matter would be said to be ripe for hearing on the merits, as Plaintiff's Counsel suggested, when it had become clear that the following issues would first have to be resolved. Firstly, Plaintiff's failure to comply with the order for discovery and furnishing of further particulars. This failure on the part of the Plaintiff had resulted in the Defendant's application for striking out of the claim as set out above. Plaintiff's Counsel conceded that such order had not been complied with. Secondly, there was that application for amendment made by the Plaintiff which was opposed for reasons that will later be shown hereinafter. In the nature of things for the said amendment to be allowed the said Defendants' application lor sinking out would have first to be dismissed or at least to be argued. I needed to indicate from the onset that this Plaintiff's unshapely notice for amendment which was signed and later served on the Defendant's Attorneys on the 17th May 2002 questionably appointed the date of the 20th May 2002 as its date of hearing. The date of hearing would obviously be less than three days later and therefore running counter to the rules and would fly in the face of the High Court Rule 33(4)(b). The sub-rule requires that the notice for amendment "shall state the date when the application will be heard which date must not be less than ten days from the date on which the notice is given. The Applicant shall at the same time set down the matter for hearing on such date." There are other reasons why the amendment would look futile as will be shown later. Mr. Wessels for Defendant further sought for an order for costs on an attorney and client scale. That would be more of a reason why the history of the matter ought to be set out first. It was as follows: The summons and declaration was filed on the 25th September 2001. Notice of Intention to Defend was filed and delivered to the Plaintiff's Attorneys on the 10th October 2001. A request for further particulars was filed and delivered on the 20th October 2001. Plaintiff's response to the request for further particulars was served and delivered on the 12th November 2001. The Defendant's plea was filed and delivered on the 29th November 2001. Pleadings were consequently closed on or about the 20th December 2001, that i:., on expiry of the time fixed for filing of the next step after the plea. I therefore disagreed with Mr. Sekake for the Plaintiff that pleadings could only be regarded as closed after the holding of a pre-trial conference. See Rule 31 (1)(b) "close of pleadings". I also failed to understand why Mr. Sekake for Plaintiff's would even complain that the next step was taken by the Defendants without receipt of further particulars from himself. This meant that things had to stall because of his own fault and default. One of the things that Plaintiff would have wanted to benefit from is his failure to attend at pre-trial conference which ultimately resulted in no agreement or curtailing of the trial. To my mind Plaintiff has always shown an attitude of slackness in this proceedings. On the 15th January 2001 Defendant's Attorneys received a notice in terms of Rule 39(2) in terms whereof Plaintiff's Attorneys gave notice that they would apply for the setting down of the case. The above notice did not indicate at what time or on what dale the Plaintiff would so approach the Registrar. The notice was ironically also delivered before the holding of a pre-trial conference. Defendant's attorney responded to the said notice in writing and pointed out that the said notice was incomplete by reason of the absence of the proper date for approaching the Registrar as said before. Plaintiff's attorney responded by returning the letter with a note endorsed thereon stating that the Registrar would be approached on 24th January 2002 at 2.30 pm. Defendant's attorney duly attended at the of the Registrar on the 24th January 2002 at 2.30 but Plaintiff's attorneys failed to turn up. The former attorney then took the liberty (as he was entitled to) of having the matter set down for 20th and 30th May, 2002 which was notified to Plaintiff's attorneys in writing. The attorney also took the liberty of inviting the Plaintiff's attorneys to attend the pre-trial conference on the 20th February 2002 but the latter attorney failed to attend. On the 26th February 2002 Plaintiff's Attorney was again invited to attend a pre-trial conference on the 6th March 2002, but he again failed to attend the proposed conference. On the 13th February 2002 a request for Further Particulars in terms of Rule 37 was delivered to Plaintiff's attorneys. On the 21st February 2002 a notice to make discovery was delivered t Plaintiff's attorneys. Despite letters requesting the Plaintiff's attorneys to respond to the request for further particulars for purposes of trial and to make discovery, they failed to do so. As a consequence of Plaintiff's refusal or failure to attend a pre-trial conference, to furnish further particulars for trial purposes and to make discovery, the Defendant's attorneys applied to Court for order compelling the Plaintiff to attend the pre-trial conference, to furnish the further particulars and to make discovery. A pre-trial conference was then held on the 24th April 2002, but Plaintiff's attorney has to date failed to or neglected to sign the minute of such conference. Incidentally minutes had been made available to the said attorney about a week later. Due to the Plaintiff's refusal, failure or negligence to comply timeously with the order in terms of which he was compelled to make discovery and to furnish the further particulars, Defendant's attorneys filed an application to strike out Plaintiff's claims which application was duly served on the Plaintiff's attorneys. On the 16 and 17th May 2002 Plaintiff filed on notice of intention to oppose the application to strike out Plaintiff's claim. The notice was accompanied by an Opposing Affidavit, two sets of Further Particulars, Discovery Affidavit and a Notice of Amendment referred to herein before. I have already indicated why it would be improper to entertain the intended amendment. In any event I took the view that it would frustrate the Court order that compelled plaintiff as aforesaid. To begin with, there were several questions raised with regard to the Discovery Affidavit during argument. This was one of the factors put forward to illustrate why the Plaintiff was said to have been in a long journey of disregard of Court rules hence not deserving of the Court's sympathy or condonation. Part 2 of a discovery affidavit normally pertains to privileged documents. It was admitted that a reference there to "all necessary pleadings herein" was wrong in that pleadings would not even be privileged documents. Secondly, reference was made to annexures eg Annexure "B" in the discovery affidavit while such were not in fact annexed. Lastly, the affidavit was filed beyond the time limit and should have been accompanied by an application for condonation for non-compliance with the Court Order. 1 attached significance to this request for further particulars in so far as it is related to the Plaintiff's claim of defamation and/or injuria and the particulars pertaining to the age and qualifications which Plaintiff did not furnish. These were "normally" reasonably required for purposes of preparing for trial. When these were provided the Defendant would decide whether to admit or refute as they were pertinent to the granting of the Plaintiff's claim. I used the word "normally" ... "required" to suggest that there may perhaps be situations where they are not. But this the Plaintiff ought to have replied and pointed out. In an action of this kind there are instances where particulars for trial would necessitate the calling of experts later on in the trial. It could perhaps be that the reply would indicate if such an expert would be required. So that the absence of a reply from the Plaintiff introduces a whole lot of difficulties that have to do with inadequate preparation for trial. That should not be so. Demonstrably this is a matter that has been characterized by slack attention to the rules to such an extent that the Defendant urged that in the event of dismissal of Plaintiff's claim exemplary costs should be awarded the warming being (hat (as Mr. Wessels submitted): " No doubt parties and their legal advisors should not be encouraged to become slack in the observation of the rules which are an important element in the machinery for the administration of justice. But on the other hand technical objections to less than pertinent procedural steps should not be permitted in the absence of prejudice, to interfere with the expeditions and if possible, in expensive decisions of cases on their real merits. (My emphasis) Trans African Insurance Co. Ltd v Maluleka 1952(2) SA 273 AD at 278 F It remains for me to deal with the matter of the application for amendment. This amendment as I indicated before did not proceed in a manner as provided for in the rules. As I said before there were other respects in which the sought for amendment would be questionable. In the intended amendment of the summons and Declaration Plaintiff was to sue and cite Defendant who had hitherto been sued and cited "in his capacity as Managing Director of Lesotho Bank", in his personal capacity. As Defendant's Counsel submitted that is a vast offence between being sued in a certain capacity eg. as Managing Director and in one's personal capacity (in rem suam). Thus in Straiton And Another v Clean Well Dry Cleaners (Pty) Ltd and Another 1960(1) SA 355 (SR) at 3588 this distinction is endorsed whore Quenet J says: "I think myself this is a good deal of force in M. Charles' submission that the words "in his capacity as director negate any question of authority in rem suam and that an authority to engage the company" in his capacity as director is inconsistent with an intention to appoint him in rem suam". This Court was also referred to Zinn No vs Westminister Bank Ltd 1936 AD 89 at 98-99. R v Kallel (Pty) Ltd 1933 TPD at 227. This Court was in the circumstances urged to find that the proposed amendment in that regard constituted therefore a change or substitution of parries (in disguise) and not an amendment and has to comply with the provisions of Rule 14. Rule 14 prescribes for proper procedures in the change and substitution of parties in pending litigation. I agreed that that would be the effect and irregularly so in the circumstances. I would agree that there are consequences following from the pleadings as they now stand. Firstly Mr. Addis cannot be held personally liable and the Plaintiff cannot if successful in his action satisfy the judgment by levying execution against Mr. Addis's personal property. The effect of the grant of this amendment if allowed would be that if the Plaintiff succeeds in his action, he can levy execution against Mr. Addis' personal property. There is one reason why the Plaintiff's notice of Amendment is unshapely and not consistent with any known form. It is addressed to the Registrar. He appoints a date on which a rule nisi for leave to amend summons and declaration will be applied for. Secondly, while it requires Defendant to show objection within fourteen days such latitude was not in effect allowed because "within three days of the notice" the application was to be heard. I thought it was only proper to say that the application was an irregular step for having not complied with the rules. See Gouws v Venter and Co. 1961(2) SA 329 (D&CLD) at 334 F-H. Moreover the amendments intended herein were quite extensive. Thirdly, it has not been stated in the notice of application, hence the absence of any supporting affidavit, why the Plaintiff wanted to apply at the time he did and not earlier. The obvious prejudice is to be seen to Defendant due to that lack of explanation on the part of Plaintiff. Of course it is trite that: "An amendment cannot however be had for the mere asking some explanation must be offered as to why the amendment is required and if the application for amendment is not timeously made, some reasonably satisfactory account must be given for the delay." See Zarug v Parvathie N.0.1962(3) SA 872(D) at 876 C. As I said before the steps taken by the Plaintiff as after the Court order of the 22nd April 2002 and/or 6th May 2002 in the main seek manifestly to frustrate complying with the said order. As to an attempt to explain his contempt of the orders the Plaintiff fails dismally. Any Court would frown at such conduct as extremely unbecoming. That is why this comment by Lord Denning in Hadkinson and Hadkinson (1952) 2 All ER become apposite and the learned judge says in that regard at 575B-C. " I am of the opinion that a party to a cause has disobeyed an order of Court is not itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impeded the cause of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the order which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed." Upon this Court is being urged for to strike out the Plaintiff's claim for failure to comply with the said Court Order as being just and proper in the circumstances. Indeed even though it seems not quite presumptuous to say, it would appear as if the Plaintiff would not, objectively speaking, even be prejudiced by the order to strike off his present claim, as it stands. It is because as he now wants to obtain compensation from a different party (Mr. Addis in his personal capacity) from the one he had chosen to sue. It would be much more convenient and far less confusing to start afresh and issue summons against Mr. Addis in his personal capacity if he wants to persist in his claim. One other thing which is noteworthy is that in this litigation the bank (Mr Addis' employer) has been at risk and has incurred the costs of defending the action to date.. If the " amendments" were to be granted, the bank cannot be held liable directly or even indirectly and instructions regard further conduct of the litigation would have to be obtained from Mr. Addis personally. As demonstrated by Plaintiff himself the prejudice of instituting the litigation afresh looks less prejudicial to the extent that as surmised by the Defendant it may even be just and equitable. I found that in all the circumstances of this case the orders for striking out the Plaintiff's claim as prayed and costs ought to be granted. Plaintiff urges this Court to award costs on Attorney and client's case to mark its displeasure. Indications about bad conduct of this proceedings could be many and could have many causes. It could be that there was intention to seek to stultify the Court order, ill advised and misconceived taking of steps or action, persistent defiance of Court orders and having an intransigent attitude in litigation. While each of above could be suspected it was to an extremely minor extent. The Courts could sense that there was absence of vexatious intent. What was demonstrated beyond doubt was the ineptitude of Counsel in dealing with the Rules of Court. When Plaintiff's Counsel addressed from the bar 1 concluded that this contributed more than anything else. I did not think awarding costs on Attorney and client scale was proper in the circumstances. Costs remained awarded on the ordinary scale. T. Monapathi Judge 7th November 2002