GLENDINNING v KADER

HIGH COURT, HARARE

[Opposed Application HH 575-16]

March 22 and October 5, 2016

MAFUSIRE J

Practice and procedure – Further particulars – Application to compel delivery of – Whether should be preceded by a request for further and better particulars – Whether party requesting further and better particulars entitled as of right to order compelling delivery of – Court’s discretion-exercise of.

In an action, defendant made a request for the supply of further particulars. The request was responded to, but defendant took the view that the particulars supplied were inadequate. Without requesting further and better particulars, defendant launched an application to compel the delivery of particulars.

Held, that the number of times a party may ask for particulars before he may finally apply for a compelling order from the court is not prescribed. A party that is refused further particulars, or is given inadequate information, is not entitled to a compelling order as of right.

Held, further, that in any given situation, the court’s exercise of discretion in an application to compel delivery of further particulars, amounts to a value judgment once the facts have carefully been examined, the merits of the case considered objectively and the relevant legal principles applied.

Cases cited:

Curtis-Setchell, Lloyd and Mathews v Koeppen 1948 (3) SA 1024 (W), referred to

Irvine v Serfontein: Irvine v De Villiers 1979 RLR 273 (G); 1979 (4) SA 67 (ZR), referred to

Matabeleland Hauliers (Pvt) Ltd & Anor v Daktyl Automative (Pvt) Ltd HB 91-08 (unreported), referred to

Purdon v Miller 1961 (2) SA 211 (A), referred to

Szedlacsek v Szedlacsek; Van der Walt v Van der Walt & Warner v Warner 2000 (4) SA 147 (E), referred to

Timesecurity (Pvt) Ltd v Castle Hotel (Pvt) Ltd 1972 (1) RLR 155 (A); 1972 (3) SA 112 (RA), referred to

Trinity Engineering (Pvt) Ltd v Commercial Bank of Zimbabwe Ltd
1999 (2) ZLR 417 (H), referred to

Trinity Engineering (Pvt) Ltd v Commercial Bank of Zimbabwe Ltd
2000 (2) ZLR 385 (H), referred to

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 21 rr 137, 137 (1)(d),
141 (b), 142, 143

F Girach, for the applicant

T Magwaliba, for the respondent

MAFUSIRE J:

This was an interlocutory application. It was to compel delivery of further particulars to the plaintiff’s declaration in the main action. The applicant herein was the defendant in the main action. The respondent was the plaintiff. To avoid confusion, I shall stick to the appellation in the main action. I shall refer to the applicant as defendant and to the respondent as plaintiff.

In the main action, the plaintiff claimed from the defendant two sums of money – US$ 200 000 and US$ 220 000. There was also a claim for interest on both amounts at the prescribed rate. According to the declaration, the plaintiff’s claim arose from a failed joint venture deal between himself and the defendant. The plaintiff said the first amount aforesaid was his capital contribution to the joint venture. He wanted it refunded. The second amount was the interest accrued on the capital contribution, calculated at 11 per cent per annum. He alleged that that rate of interest had been mutually agreed upon by the parties.

The plaintiff said the joint venture was a certain game farm situated between Bulawayo and Victoria Falls. The parties would purchase and develop it in equal shares. The defendant would be solely responsible for running the project viably. But the profits and losses would be shared equally.

The plaintiff said the defendant repudiated the joint venture and he (the plaintiff) accepted the repudiation. So now he wanted his capital contribution refunded; plus, the accrued interest on it; plus, the further interest accrued, or to be accrued, such further interest being reckoned from the date of the repudiation to the date of payment, calculated at the prescribed rate, namely five per cent per annum.

After entering an appearance to defend, the defendant requested further and better particulars to the plaintiff’s declaration. The request was quite detailed. If the questions are broken down into their various components, there should have been over 40 of them. There was virtually every question for virtually every material statement or allegation in the declaration. For example, the defendant wanted to know where exactly the game farm was situated and whether it was situated on rural land; who the owner was; whether a written contract had been entered into between the original owner and the joint venture, and if so, the plaintiff to supply a copy of the contract.

The defendant also wanted to know whether he had been authorised by the joint venture to purchase the farm on its behalf; what the alleged purchase price was; who had made the payment; how it had been made; and if it had been made externally, whether exchange control approval had been obtained.

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