Court name
High Court of eSwatini
Case number
4090 of 2006

Maseko v Municipal Council of Mbabane (4090 of 2006) [2007] SZHC 171 (29 June 2007);

Law report citations
Media neutral citation
[2007] SZHC 171













6








THE
HIGH COURT OF SWAZILAND



HELD
AT MBABANE
Civil
case No. 4090/2006
In the matter between





KHANYISILE
MASEKO
Plaintiff
Vs



MUNICIPAL
COUNCIL OF MBABANE
Defendant



Coram Banda,
CJ



For
the Plaintiff
Mr.
Masuku



For
Defendant
Mr.
Jele







JUDGMENT







[1]
The applicant who is the plaintiff in the main action, excepts to the
defendant's amended plea on the grounds that such plea does not
contain averments necessary to disclose a defence to the plaintiffs
claim as contained in the plaintiffs particulars of claim. The
applicant contends that the defendant's averments constitute a bare
denial that is excipiable in the following respects namely that -





(i) the
defendant generally denies that the
plaintiff wares were
confiscated


(ii) that
the defendant generally denies the
computation of the
plaintiffs earnings.


(iii) that
the defendant generally denies that the
confiscation was unlawful
and


(iv) that
the defendant generally denies that the
plaintiff suffered
damages.











[2]
In the alternative the applicant has contended that paragraph 5 of
the defendant's amended plea be struck out on the grounds that it
contains contradictory matter.







[3]
The defendants have denied the applicant's contentions and have
submitted that the amended plea does not offend against the Rules
governing pleadings.







[4]
Rule 22 of the High Court Rules governs the manner in which a plea
may be pleaded and Rule 22(2) is of particular relevance in this
application and it states as follows:-



"The
defendant shall in his plea either admit or deny or confess and avoid
all the material facts alleged in the combined summons or declaration
or state which of those facts are not admitted and to what extent,
and shall clearly and concisely state all material facts upon which
he relies."







[5]
Mr. Masuku has submitted that the defendant's amended plea does not
disclose facts to support a defence and that it is a general denial
and merely seeks to paraphrase the plaintiff's averments. He has
contended that general denials are not sufficient to disclose
defendant's defence and that the amended plea does not only contain
bare denials but that it is self contradictory and that such matters
should be expunged from the plea. In particular Mr. Masuku has cited
paragraph 5 of the defendant's amended plea as contradictory.





[6]
Mr. Jele for the defendant first made a brief reference to
the

general
rules
regarding pleadings. He has submitted that the plea makes it clear
that the defendants are a municipality who have a duty under the law
to apply and enforce certain Regulations and Rules. He submitted that
the defendant's plea is premised on a legal basis which gives them
power to confiscate goods that are sold in contravention of
the Regulations. He has argued that paragraph 5 of the amended plea
is not contradictory and that it raises matters that must be dealt
with on evidence at the trial. He submitted finally that what the
applicant should have sought was to apply for further and better
particulars which are available to the applicant under the Rules
rather than apply for an exception. He has submitted that the
application has no merits and should be dismissed.







[7]
Pleadings impose on the parties to litigation a primary
responsibility to state in their pleadings all the necessary
particulars of any claim, defence or other matter pleaded. If any
pleading does not state such particulars or state only some or
insufficient or inadequate particulars, the Rules enable the Court to
order a party to serve either -








(i) particulars
or further and better particulars of
any claim, defence or other
matter pleaded or


(ii) a
statement of the nature of the case relied on
or


(iii) both
such particulars and statement; vide Rule
21(1) of the High Court
Rules.







[8]
It is, therefore, an essential principle of pleadings that
particulars should be given of every material allegation contained in
the pleading. The function of particulars of pleading is to carry
into operation the overriding principle that litigation between the
parties and particularly the trial should be conducted fairly, openly
and without surprise and to reduce costs. ASTROVLANIS COMPANIA
NAVIERA SA v LINARD [1972] 2 AER 647











The
function of pleadings is -







(i) to
inform the other side of the nature of the case
they have to meet
as distinguished from the mode
in which that case is to be proved.



(ii) to
prevent the other side from being surprised at the
trial.



(iii) to
enable the other side to know what evidence they
ought to be
prepared with and to prepare for trial.


(iv) to
limit the generality of the pleadings.











[9]
Briefly the plaintiffs case against the defendant was this:







(i) that
the confiscation of the plaintiffs wares was
unlawful.


(ii) that
the plaintiff was assaulted.


(iii) that
the plaintiff suffered loss of earnings.



(iv) that
the plaintiff suffered damages from pain and
suffering.







[10]
I have carefully studied the defendant's amended plea which has been
impugned in this application and, in my view, I can find no basis for
the attack. Each of the main claims against the defendant has been
specifically denied and in some respects the basis of the denial has
also been given. The Rules of pleadings require a party to deny each
material allegation made and the defendants have clearly done that in
their amended plea to which exception is being taken. In my view the
defendant's denials are of sufficient precision to enable the
plaintiff to know what is the case she has to meet. The defendants
denials are specific and can leave the plaintiff in doubt about their
effect.







[11]
I have also considered the contention that paragraph 5 of the
defendant's amended plea is contradictory and that it does not
address the arguments raised in paragraph 5 of the plaintiff's claim.
It is difficult to understand the plaintiff's contention on the
nature of defendant's paragraph 5 of the amended plea because
paragraph 5 specifically addresses the averment of confiscation and
gives the basis for it. The defendant's amended plea clearly
satisfies the principles enunciated in the case of HLONGWANE v
METHODIST CHURCH OF SOUTH AFRICA 1933 WDD 169. See also
the principles discussed at page 464 and 465 of HERBSTEIN & VAN
WINSTEN, 4
th
Edition of Civil Practice of the Supreme Court of South Africa. I can
find no merit in the applicant's contention. It was open to the
applicant, if she so wished, to apply under the rules of pleading for
further and better particulars and she did not do that. I am
satisfied that the defendant's amended plea does disclose the facts
on which the defence will be based and the plaintiff ought to know
what case she will have to meet at the trial. I am satisfied and I
find that this application has no merits and it is accordingly
dismissed with costs.







Pronounced
at the High Court sitting at Mbabane this 29
th
day of June 2007.







R.A.
BANDA



CHIEF
JUSTICE