Mphalane and Another v Phori and Another (CIV/APN 400 of 99) [2000] LSCA 45 (13 January 2000)

-1- C I V / A P N / 4 0 0 / 99 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er b e t w e e n: N C H A K HA M P H A L A NE 1st A P P L I C A NT E L E NA D U R OW 2nd A P P L I C A NT and L E H L O H O N O LO P H O RI T HE D E P U TY S H E R I FF 1st 2nd R U L I NG R E S P O N D E NT R E S P O N D E NT Delivered by the Honourable M r. Justice T. M o n a p a t hi on the 13th day of January 2000 R u le 29(5) requires that: (a) W h e re a ny pleading contains a v e r m e n ts w h i ch are scandalous, vexatious, a r g u m e n t a t i v e, irrelevant or superfluous the opposite party m ay within the period allowed for delivering of a ny s u b s e q u e nt pleading, a p p ly for the striking o ut of the matter, aforesaid, setting o ut the g r o u n ds u p on w h i ch the application -2- is m a d e ." T he Applicant in the instant matter, w h i ch w as an application for leave to stay execution p e n d i ng appeal, h as applied for striking o ut of portions of the R e s p o n d e n t s' o p p o s i ng affidavit as being argumentative, scandalous, vexatious or irrelevant. I w o u ld only grant the application if I w as satisfied that the Applicant w o u ld be prejudiced in his case if it w as n ot granted. I accepted the description of the nature of offending statements w h i ch w o u ld deserve to be struck out in appropriate circumstances as stated in B O S M AN v V AN V U U R EN 1 9 11 T PD 8 25 at 8 32 a nd in M E I N T J I ES v W A L L A CH L TD 1 9 18 T PD 2 78 AD at 2 85 - 2 86 as submitted by M r. M p h a l a n e. I n d e ed in t e r ms of the R u le 29(5) (c) this s e e m ed to be the requirement. T he six (6) portions in the s a me n u m b er of paragraphs w e re singled out f r om the Respondent's answering affidavit. W h en 1 asked M r. M p h a l a ne in w h at m a n n er he w o u ld be prejudiced in his claim he replied that he w o u ld be unable to reply to alleged offending portions since they w e re of such a nature that no reasonable reply could be expected. I thought M r. M p h a l a n e 's a n s w er that he w o u ld be unable to respond w as correct insofar as it c o n c e r n ed matters of a r g u m e nt a nd credibility w h i ch o u g ht to h a ve h ad no place in the R e s p o n d e n t s' affidavit. S ee M O R G E N D AL v F E R R E I RA 1956(4) SA 625(T) at page 268 as approved in J O N ES v J O HN B A RR & CO P TY L TD A ND A N O T H ER 1967(3) SA 2 92 ( W L D ). B ut the question w o u ld still be h ow the offending portion affected "the c o n d u ct of his claim or defence." T h e se challenged portions of the R e s p o n d e n t s' affidavit m a de -3- interesting reading. Paragraph 6 of the opposing affidavit contained the following statement which was branded as scandalous, argumentative and superfluous and insulting: "1st Applicant holds that the Court a quo a nd the Court of Appeal was stupid in this finding." ( My underlining) Yet there h ad been no w ay in the paragraph 7 of the founding affidavit (to which the above was a response) where there was a suggestion that this Court and the Court of Appeal were said to have been stupid. T he Applicant said he w as therefore offended by the paragraph and it should accordingly be struck out, I certainly could not say the Respondent intended to attack the dignity of the Court or s h ow of disrespect. But to the extent to which the statement sought to attribute such discourteous expression w as m o st u n b e c o m i ng of the Attorney w ho drew the affidavit. Indeed it was objectionable in that it sought to say indirectly that M r. M p h a l a ne h ad imputed stupidity on the decisions of the Courts. He had not. T he second statement was again to be found in paragraph 7 of the opposing affidavit, the part of it which said: " but gives directive to the Court a quo as to w h at it should do, which is our h u m b le submission he has no such right of d e m a nd unless the Honourable Court is his and the Honourable Court is absolutely under his unfettered directives. ( My underlining) -4- T he suggestion by the R e s p o n d e nt in the other part of the paragraph w as that the Applicant should h a ve complied with the provisions of R u le 6 a nd that he h ad not. By not having d o ne so as it w as submitted, he w as said to be doing w h at is contended above. T he matter of w h e t h er he h ad complied with R u le 6 w as still for a r g u m e nt in the m a in application. T h en there w as no need for the rude m a n n er in w h i ch the R e s p o n d e nt put w h at otherwise ought to h a ve b e en a factual statement as to w h at the requirements of R u le 6 w e re a nd the w ay in w h i ch the Applicant h ad failed to c o m p ly therewith. This w as clearly vexatious a nd in every w ay objectionable u n d er R u le 29(5). Because there w as no w ay in w h i ch a suggestion could be gathered that the Applicant w as giving the C o u rt a ny directives. T h en to another statement. In paragraph 8 the following a v e r m e nt w as to be found a nd it said: "I do not understand the criticism or rhetoric of the 1st Applicant as to w h at o ne m i g ht understand to m e an the H o n o u r a b le J u d ge of the C o u rt a quo does not understand English L a n g u a ge a nd therefore did not understand a nd appreciate w h at he w as saying," I looked at the Applicant's papers. I could find no suggestion n or insinuation in a ny remote sense that the J u d ge did not understand English language. T h at this w as irrelevant, argumentative, superfluous, scandalous a nd vexatious w as b e y o nd question. T he following statement in paragraph 10 of opposing affidavit also c a me under attack. It h ad been said that: -5- "I further h u m b ly submit this is an outright defiance of not only the j u d g m e nt of M o n a p a t hi J but even trial of the C o u rt of Appeal. D o es he h a ve the right to do so." In this o ne I admitted in favour of the First R e s p o n d e n t, a doubt that there w as merely unnecessary superfluity in that statement. Indeed w h at w as sought to be argued w as a point that there h ad b e en deliberate n o n- compliance by the Applicant. Except that the w o rd 'defiance' is the kind of stuff that practitioners w o u ld loosely fire f r om the bar. N ot m u ch or anything could be said to be uncivil about it. Nevertheless this w as unnecessary to put in that statement which w as in a f o rm of a r g u m e n t. T h at is precisely w h at the R u le 29(5) goes against. I w o u ld a d v a n ce an opinion similar to a b o ve with regard to w h at w as found in paragraph 10 of the opposing affidavit. It w as therein stated that: " I further h u m b ly submit 1st Applicant is m a k i ng himself a judge a nd interpreter of C o u rt j u d g m e n t. He is in outright defiance of the process of the H i gh C o u rt a nd C o u rt of Appeal." If there is an explanation w h i ch negatives mala fide a nd the C o u rt c an be satisfied that there is no prejudice w h i ch cannot be remedied by an a w a rd of costs a court should to my m i nd incline towards assisting a party to put his case before court. This c o m m e nt w as certainly not directed at w h at w as said in paragraph 13 of the founding affidavit. T h e re had b e en no suggestion of anything calling for the a b o ve c o m m e n t. It should accordingly h a ve h ad no place in an affidavit. -6- T he last of w h at was alleged to have been offensive and against Rule 29(5) was in paragraph 12 in which it was said: "I h u m b ly submit Applicant should not be allowed to defy Court's judgments if they go against him, or he should be m a de a Judge of the H i gh Court and of the Court of Appeal." This certainly bordered on being insolent. M o st objectively it was rude. M r. M p h a l a ne told me he had no ambition of being a judge and that this unfounded turgid talk m a de him u n h a p py most of the time. I have used the w o rd "objectively" above to indicate my observation that once M r. M o n y a ko w as called to account, that is in his reply to almost all aspects of the application. I sensed no malice nor intention to injure nor anger. T he recurrence of ranting and uncontrolled statements was nevertheless a cause for concern on my part. As confirmation of a trend or a state of m i nd of Respondent's Counsel I thought it should not go unpunished. T he statements used by M r. M o n y a ko for Respondent were most of the time of a turgid kind. This m e a ns they were unnecessarily: "Swollen, inflated, enlarged, p o m p o us bombastic" Concise Oxford Dictionary. That is in a w ay that has no place in an affidavit. I felt however that this was a case m ay be a borderline one where a striking out ought not to be ordered for the reason that there was no prejudice. I said I agreed that M r. M p h a l a ne would not be able to reply to the -7- objectionable statements. T h ey called for no reply. T h ey did n ot refer to a ny factual situation n or to set legal principles or positions. It m e a nt that M r. M p h a l a ne w as n ot able to s h ow prejudice. In this regard to rule 29(5)prejudice w o u ld m e an w h e t h er or n ot he w as disabled to p r o m o te his claim or defend a claim against h i m. He w as not able to d e m o n s t r a te a ny prejudice but w h at w as f o u nd in the offending p a r a g r a p hs e n d ed up being serious mischief or a b u se of process. W h en speaking a b o ut an almost similar set of circumstances in J O N ES v J O HN B A RR & C O. (supra) M a r go J said at p a ge 2 96 F -G " H o w e v e r, here again no prejudice h as b e en s h o wn a nd the application to strike out therefore fails. T h is a p p r o a ch d o es n ot m e an that a party m ay introduce scandalous, or vexatious or irrelevant or otherwise inadmissible allegations with impunity, or that R u le 6(15) e n c o u r a g es laxity in that regard. D e p e n d i ng on the circumstances the C o u rt m ay m a ke an appropriate order as to costs against a party w ho offends in this w a y, e v en t h o u gh no prejudice is caused to the other party by such allegations." S ee also P A R OW M U N I C I P A L I TY v J O Y CE A ND M A C G R E G OR L TD 1971(3) SA 937 (CPD) at 939 C - D. See also T HE C I V IL P R A C T I CE OF T HE S U P R E ME C O U RT OF S O U TH A F R I CA 4 ed M Dendy on pages 500 - 501 (prejudice). S u ch is the robust a p p r o a c h. F or application for striking o ut of irrelevant material see F R EE P R E SS OF N A M I B IA (PTY) L TD vs C A B I N E T, -8- I N T E R IM G O V E R N M E N T, S WA 1987(1) 6 14 at 651 F - G. I respectfully agreed m o st entirely with the r e m a r ks in a b o ve authorities. T h ey h a ve guided me in my conclusion. M r. M o n y a k o 's only arguable point h ad b e en that the Applicant should h a ve g o ne to the extent of s h o w i ng in e a ch statement, a nd statement by statement, w h e t h er it w as either of those offences contained in R u le 29(5). I thought that w as not necessary. It w as e n o u gh if in the e nd a statement w as m et by a n y o ne of the offences. T h at w as all a b o ut M r. M o n y a k o 's response . It s h o w ed a distinct lack of conviction w h i ch could only h a ve b e en evidence of carelessness in his attitude rather t h an hostility. I considered that in all the circumstances this w as an instance w h e re I w o u ld not strike out the offending passages but that the First R e s p o n d e nt m u st p ay the costs of this application. 1. M o n a p a t hi J u d ge 13th J a n u a r y, 2 0 00 F or Applicants : M r. N. M p h a l a ne F or R e s p o n d e n ts : M r. A . T. M o n y a ko