TAM Industries (Pty) Ltd v Alfa Plant Hire (Pty) Ltd (CIV/T/495/2002)

Case No: 
CIV/T/495/2002
Media Neutral Citation: 
[2004] LSHC 106
Judgment Date: 
31 August, 2004

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CIV/T/495/2002

IN THE HIGH COURT OF LESOTHO

In the matter between:-

T. A. M INDUSTRIES (PTY) LTD PLAINTIFF

and

ALFA PLANT HIRE (PTY) LTD DEFENDANT

RULING

Delivered by the Honourable Mrs Justice A.M. Hlajoane

on 31st August, 2004.

The Plaintiff has lodged his claim, claiming damages from the Defendant for having wrongfully and unlawfully spreading heaps of quarry erected by the Plaintiff alongside the Thetsane -Tikoe road. It has been the Plaintiffs case that the Defendant's employee acting within the scope of his employment was the one spreading those heaps of quarry.

In his request for further particulars, the Defendant requested from the plaintiff to be told the full particulars of that employee not

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mentioned by name. In response to that request, the Defendant showed that the full particulars of such Plaintiffs employee were unknown to him. The Defendant further denied in his plea that the unknown person was acting within the scope of his employment.

The matter was duly set down for hearing when it was ripe for hearing. On the date of hearing the Defendant raised a point of law from the bar, in that the summons disclosed no cause of action. The Defendant objected to this kind of procedure claiming that a formal Application had to be made in terms of Rule 32 (7) of the High Court Rules.

In making a ruling on that point the Court indicated that, the reading of Rule 32 (7) clearly shows that the Application could be made from the bar as it could also be made by the Court mero motu or by the other party. The Court could therefore not be expected to make a formal Application. The same Rule allows that such Application could be made at any stage of the Proceedings but before judgment. In Attorney - General & Two Others v S. Kao C of A No26 of 2002 the Court showed that a point of law- can also be raised on appeal.

I therefore allowed the Defendant to raise that, point of law. In laying a basis for his point, the Defendant referred the Court to

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paragraph 1 of his request for further particulars, where he had asked for full particulars of his employee. The further particulars disclosed that the particulars were unknown.

A question was then posed of the connection between that unknown employee and the Defendant. How could the unknown be the Defendant's servant? Can there be any prejudice suffered when the employee is unknown, as there would be no connection between the Defendant and that unknown.

The Plaintiff then sought to be allowed to amend his declaration, and in the alternative pointed out that the defect might be cured by evidence. The Plaintiff did not show any special exception that would influence the Court in allowing his Application to amend the summons; Dinath v Breedt 1966 (3) S.A 712. The summons as it was did not disclose a cause of action. The employee was unknown. It would be something if Plaintiff already had a valid cause of action at the date of summons but later seeks to add by amendment a further cause of action, based wholly or in part upon events which have taken place after the summons was issued; Lebedina v Schechter and Haskell 1931 WLD 247.

The Court in this case has not been shown exceptional or special

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circumstance which would justify the granting of the amendment to the summons. The summons as it were disclosed no cause of action, and the Court in its exercise of discretion has to discourage people from instituting action when they have no cause of action by refusing to grant the amendment; Barclays Bank International Ltd v African Diamond Exporters (Pty) Ltd 1976 (1) S.A. 93 at 97H.

The Court therefore finds that the summons discloses no cause of action and this goes to the roots of the matter. The point of law raised by the Defendant succeeds and the Plaintiffs claim is dismissed with costs.

A. M. HLAJOANE JUDGE

For Plaintiff: Mrs Lethola For Defendant: Mr Matooane