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

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.

The defendant's request covered all other areas connected to the plaintiff's claim, including the actual running of the joint venture; the keeping of books of accounts; the extent to which the rate of interest of 11 per cent per annum allegedly agreed upon by the parties would apply; the nature of the alleged agreement over that rate of interest; the alleged repudiation of the joint venture; whether demand for payment had been made previously, and so on and so forth.

It is not intended to repeat all the questions asked by the defendant. The plaintiff supplied some information. He prefaced his responses with the statement that the requests were not necessary; that they related to issues that were within the defendant's knowledge and that the request was generally intended to annoy and vex him.

Regarding the exact location of the farm and the nature of the land it was on, the plaintiff's response was that the information was not necessary to enable the defendant to plead. He said it was information within the defendant's knowledge.

For the same reasons, the plaintiff refused to supply the information relating to the former owner of the farm. Regarding the other questions, the plaintiff refused to supply any further information on the basis that it was evidence that should not be supplied at that stage, or that the requests constituted inquisitorial forays into the plaintiff's state of mind.

Whether deliberately or inadvertently, the plaintiff did not exhaustively deal with each and every facet or tenor of the defendant's questions. Furthermore, in his responses the plaintiff did not necessarily follow the same paragraph references as in the defendant's request. Maybe due to that, some questions in the request, or some facets of them, remained unanswered altogether, or were inadequately treated. For example, in question 1.3 of the request, the defendant first referred to the alleged agreement of sale of the joint venture farm. He then asked how the purchaser therein was described, and who the actual purchaser was. But under para 1.3 of his response, the plaintiff said the identification of the former owner was not necessary to enable the defendant to plead and that, in any event, such information was within the defendant's knowledge. Thus, the plaintiff did not deal with the issue of the actual purchaser, unless his retort that such information was within the defendant's knowledge is taken to have related to the issue of the purchaser.

In question 1.9, the defendant asked whether the rate of interest of
11 per cent per annum, alleged to be a return on the plaintiff's capital contribution, applied to both parties as equal participants to the joint venture. He also asked as to which entity would be responsible for paying that return. Under para 1.9 of his response, the plaintiff said his contribution was a direct cash injection on which an interest return was payable; that the actual payment would be made by the defendant who was in control of its affairs but that instead of making the relevant payments, the defendant had secretly made a profit from the plaintiff's investment. Thus, the main question whether the return of 11 per cent would apply to both parties' capital contributions was not answered.

Some 20 working days after the plaintiff's response, the defendant launched these proceedings. Apart from costs and some other relief which was eventually abandoned, the defendant sought an order to compel the plaintiff to furnish full particulars to the following specific questions, namely:

. Questions 1.6-1.9 - relating to the purchase price of the game farm; the payment of the purchase price; exchange control approval; the manner of operations at the farm; the books of accounts and the extent to which the alleged interest rate of 11 per cent per annum would apply;

. Questions 2.1-2.4 - relating to the alleged capital contributions by the parties; details of the alleged acknowledgement by the defendant in respect of the 11 per cent per annum rate of interest;

. Questions 3.1-3.3 - relating to the alleged repudiation of the joint venture agreement by the defendant and to any possible previous demands for payment by the plaintiff.

In the founding affidavit by his attorney, it was stressed that the defendant was entitled to the particulars requested as a matter of law and to enable him to know the case he had to meet and, further, to enable him to plead. The affidavit then went on to deal with each of the questions in respect of which the plaintiff's answers were said to be inadequate or not to have addressed the actual particulars requested.

In the opposing affidavit, also by the plaintiff's attorney, it was denied that the particulars supplied were inadequate. It was explained that the plaintiff's claim was for the "restitution" of his capital contribution to the joint venture, plus the interest accrued; that the claim was simple and straightforward and that as such, the defendant should have been able to plead to it by confessing the existence of the joint venture agreement and avoiding its consequences. The affidavit went on to deal with such of the questions as had been singled out and dealt with by the defendant in the founding affidavit, all to show how the plaintiff's answers thereto had been adequate. In some sections of the affidavit, it was wondered why no request for further and better particulars had been made before the application was launched if the defendant genuinely felt that the plaintiff's answers had been inadequate. The opposing affidavit was replete with the refrain that in spite of the defendant's request being vexatious, the plaintiff had gone out of its way to furnish the particulars requested.

In other sections of the opposing affidavit, the point was made or implied that the plaintiff's claim was not about what contributions to the joint venture might have been made by the defendant, or what rights he derived from it and that he (the defendant) had been free to sue for his own contribution or rights.

Essentially, that was the case before me. But before deciding the issue and giving my ruling, I feel compelled to make this remark off the cuff. I have found the conduct of the legal practitioners for both parties quite precipitous. The application and the opposition to it seemed to me just a moot contest. Prima facie, the defendant could plead to the plaintiff's declaration. But the defendant having asked for further particulars, the plaintiff could have fully supplied the information requested without being so frugal. But having been denied the information that he thought he required, the defendant really did not need to launch a full-scale court application to compel delivery of the particulars. But having done so, the plaintiff did not need to oppose it so tenaciously. To me it has just been all an academic tussle. There would have been no prejudice to either party if either of them had conceded their respective positions.

But the parties having pressed for a ruling, I must give it.

Order 21 r 137 (1)(d) of the High Court Rules, 1971 (RGN 1047 of 1971) ("the Rules") says that a party may apply for a further and better statement of the nature of the claim or defence, or for further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars.

Order 21 r 141 (b) of the Rules says that at any stage of the proceedings the court may order either party to furnish a further and better statement of the nature of his claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars.

The plaintiff argued that before launching the court application, the defendant should have first filed a request for further and better particulars. Because he did not, his application was not "ripe". Thus, it was argued, this Court did not have "...the jurisdiction to relate to it."

However, I observe that the Rules do not prescribe such a procedural step as urged by the plaintiff. The heading to r 137 is "Alternatives to pleading to merits: forms", meaning that instead of pleading to the merits a party may, inter alia, request further particulars. In fact, before its amendment in 1995 by SI 120 of 1995 to its present form, the old rule was more explicit in saying a request for further particulars, among others, was one of the alternatives to pleading on the merits. It read:

"Instead of pleading to the merits a party may within the time allowed for the filing of his pleading - ...apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars."

However, that a party may apply for further and better particulars before pleading on the merits was not the point. The point was: the defendant, having requested further particulars which, in his opinion, were refused or inadequately supplied, was he obliged to request further and better particulars, and only launch the present proceedings if the plaintiff had remained intransigent?

I maintain that there was no such obligation on the part of the defendant as a matter of procedural law. I observe in passing that r 137, both in its old and current forms, does not say a party may request further particulars. It says a party may "...apply for a further and better statement... or further and better particulars...". I observe further that although in casu the defendant's request was headed "REQUEST FOR FURTHER PARTICULARS", in the body of the request, he asked for "...further and better particulars..." However, nothing turns on this. Although the rule says a party may "apply", this is not to say he may make a formal court application right at the outset. I consider that the word "apply" in the rule was used to refer to the filing, with the Registrar, of a request for particulars. This becomes clearer when reference is made to O 21 r 142 of the Rules which provides for an actual court application. (my emphasis)

Furthermore, whether initially one requests (or applies for) further particulars and, subsequently, requests (or applies for) further and better particulars where the other party has refused to oblige, or has responded inadequately, is inconsequential. The Rules permit parties to request (or to apply) for further and better statements of the nature of the claim or defence, or for further and better particulars of any matter stated in any pleading, notice or written proceeding. The number of times a party may do this before he may finally apply for a compelling order from the court is not prescribed. It is up to the asking party to decide what to do when faced with a refusal to furnish particulars or with an inadequate response. He may decide to make a further request if, for example, the response given fudges the pleading further. He may decide to make a court application if the other party completely refuses to furnish the particulars.

To me, r 142 confirms that such a procedural step as urged by the plaintiff is not a concern of the Rules. The rule prescribes the time limits within which a party requesting particulars may plead to the merits, where the particulars requested have been supplied, whether voluntarily, or following an order of court. For the moment, I am not concerned with the time limits. I am concerned with what the rule says should happen when the particulars have been refused the first time they are asked for, as was the case in this matter, at least according to the defendant. In para (b), the rule says the party who has been refused the particulars, and if he should fail to make a court application for an order within 12 days of such refusal, his time to reply to the pleading against which the particulars were sought shall be calculated from the date of expiry of the 12 days. The rule does not say before making the court application, the aggrieved party must first make another request for further and better particulars.

But for his argument, that before launching the court application to compel delivery of the particulars, the defendant should have asked for further and better particulars, the plaintiff cited the unreported case of Matabeleland Hauliers (Pvt) Ltd & Anor v Daktyl Automative (Pvt) Ltd HB 91-08 (unreported). He quoted the following passage in that judgment by KAMOCHA J at page 4 of the cyclostyled judgment:

"What the defendant should have done in the circumstances was to apply for further and better particulars in terms of Order 21 Rule 137 [1][d]. There was no reason for the defendants to launch this application before complying with the provisions of rule 137 [2][d]."

I did not understand the learned judge in that case to be saying that every time where a party requests further particulars and they are refused, or are given but with insufficient information, he must first request (or apply) for further and better particulars before he launches a court application to compel delivery. The learned judge prefaced his ruling by saying "What the defendant should have done in the circumstances...", meaning, in my view, that his decision was to be confined to the peculiar circumstances of the case before him. A blanket direction that every time where particulars to an initial request are refused, further and better particulars must always be requested before the aggrieved party applies to court to compel delivery of them would be contrary to the Rules. The practice of requesting further and better particulars before actually applying to court for a compelling order is just something encouraged as a matter of expediency or sound practice. In this regard, I refer to some three South African cases, reported under one judgment, namely Szedlacsek v Szedlacsek; Van der Walt v Van der Walt & Warner v Warner 2000 (4) SA 147 (E), which the plaintiff himself cited, but only as Van der Walt v Van der Walt (supra).

In those cases, dealing with a rule governing the question of further particulars for trial after the close of pleadings, Leach J stressed the discretion that is retained by the court to grant or refuse a compelling order. A party that is refused the further particulars, or is given inadequate information, is not entitled to a compelling order as of right. If he makes a court application, he must set out sufficient information to enable the court to consider whether or not to exercise its discretion in his favour.

The learned judge admitted that it was impossible to lay down any test that could be slavishly applied in all situations to determine whether or not a compelling order should be granted. Every case would depend on its particular facts and circumstances. However, in most cases, the learned judge said, it would be wholly insufficient to seek a compelling order solely on the ground that a request that was made was refused, or was not complied with timeously, (or, I would add, was not complied with adequately).

On whether the aggrieved party should give prior notice of his intention to apply for a compelling order, the learned judge had this to say, something the plaintiff stressed in his heads of argument at pages 150C-G:

"...(I)n my opinion, although there is no specific requirement for an applicant... to give notice of his intention to bring an application... it is of course sound practice for a party to call upon his opponent to remedy a default or failure to timeously comply with a request for particulars for trial and to put him on terms before leaping into court and incurring substantial costs in an application of this nature. Accordingly, a court will be slow to come to a party's aid by granting an order directing the opposing party to comply with a notice or request where no such earlier demand has been made. In my view, an application to compel compliance with a procedural step should really be regarded as a last option, to be exercised when other reasonable and far less costly alternatives have been unsuccessful and the defaulting party has shown himself to be unreasonably dilatory." (my emphasis)

Clearly, the court was not laying down any rule of thumb that every time a party wants to approach the court for a compelling order where further particulars have been refused, or where there has been non-timeous response to a request, he must first give his opponent a notice of his intention to do so. It is just sound practice to require such prior notice in order to save costs. Each case must depend on its own set of facts and circumstances.

In casu, the plaintiff argued that not having first requested further and better particulars before launching his application, the defendant must be held to be non-suited and the court must resile from the case for lack of jurisdiction. He was wrong. There is no such restriction.

On the other hand, the defendant argued that he was entitled to a compelling order, inter alia, as a matter of law. He was also wrong. There is no such law. The court retains full discretion to grant or refuse a compelling order for further particulars.

I must now examine how the court exercises its discretion to grant or refuse an order to compel delivery of further particulars. It considers what the function of further particulars is. It is this:

(a) to limit the generality of allegations in the pleadings;

(b) to define the issues with more precision;

(c) to prevent the party asking for particulars from being taken by surprise - see Curtis-Setchell, Lloyd and Mathews v Koeppen 1948 (3) SA 1024 (W);

(d) to enable a party to know the case or defence he has to meet;

(e) to enable a party to decide whether he should admit or deny a particular allegation;

(f) to enable a party to decide whether to persist with his claim or defence so as to save him embarrassment by being forced to resort to bare denials which, in the light of particulars supplied at a later stage, may well oblige him to withdraw, or qualify - see Timesecurity (Pvt) Ltd v Castle Hotel (Pvt) Ltd 1972 (1) RLR 155 at page 160E-F.

It is not the function of further particulars:

(i) to enable a party to find out on what evidence his opponent intends to rely;

(ii) to enable a party to obtain information on which to build up an answer to the pleadings, i.e. information, not about his opponent's pleading, but on matters arising out of the pleading pertinent only to his defence - see Curtis-Setchell (supra).

(iii) to provide a party with information on matters in respect of which the onus is on him - see Irvine v Serfontein: Irvine v De Villiers 1979 RLR 273 (G) and Trinity Engineering (Pvt) Ltd v Commercial Bank of Zimbabwe Ltd 2000 (2) ZLR 385 (H).

(iv) to enable an ingenious inquisitor to submit a series of interrogatories to the other party, or to go on a fishing expedition on the other party's pleading - see Purdon v Miller 1961 (2) SA 211 (A) and Trinity Engineering (Pvt) Ltd v Commercial Bank of Zimbabwe Ltd 1999 (2) ZLR 417 (H).

In the light of the above principles, I now turn to consider the merits of the application and the merits of the opposition.

The information and argument tendered by the defendant in his founding affidavit, the answering affidavit and the heads of argument, was not sufficient for the discretion to be exercised in his favour. All that emerged from his case was that, in respect of those questions that he had singled out for the compelling order, inadequate information had been supplied by the plaintiff in his reply. But to me, the questions were essentially and classically inquisitorial forays into the plaintiff's case. Predominantly, the questions seemed to seek information on which to found or build up a defence. For example, questions on the exact location of the alleged joint venture farm; the nature of the land on which it lay, i.e. whether rural or otherwise, and whether foreign exchange control approval had been obtained prior to the payment of the purchase price, are quite suspicious. The defendant seemed to have something up his sleeve. But that kind of information had nothing to do with what the plaintiff had pleaded. This is more so given that in terms of r 143 of the Rules, a party can still request such further particulars after the close of pleadings as are necessary to enable him to prepare for trial. Invariably, particulars sought at this stage contain large components of evidence.

I believe that in any given situation, the court's exercise of discretion in an application to compel delivery of further particulars, boils down to a value judgment once the facts have carefully been examined, the merits of the case considered objectively and the relevant legal principles applied. In casu, I consider that the plaintiff's claim in the declaration is set out with such sufficient particularity as would have enabled the defendant to plead to it. In a nutshell, and in my own words as I understood it, the claim was for a refund, in a determinate amount, of his capital contribution to a failed joint venture between himself and the defendant, the nature of which, and place at which it would be operated the plaintiff had specified. He also sought another sum of money on the capital amount as accrued interest at a rate he alleged had been agreed upon by the parties. Finally, he sought interest, at the prescribed rate, on those amounts from the date of judgment to the date of payment.

At this stage, considering solely the claim for particulars, the question is not whether the plaintiff's claim is sound, it is whether the claim is set out with sufficient particularity. I think it is. The further question is whether the defendant can answer to it without being forced to make bare denials. I think he can. He cannot purport not to understand what the joint venture referred to by the plaintiff was all about it. He can answer whether the joint venture did or did not happen; if it did, whether the events subsequently panned out as claimed by the plaintiff or otherwise. If he feels he is not liable, he can state the reasons why he feels so.

In the circumstances, I am satisfied that even though in some cases the plaintiff did not altogether answer the questions asked, or that he answered them inadequately, on the whole, the defendant's request for further particulars was not necessary. I therefore dismiss the application. But given that there was no cogent reasons why the plaintiff withheld the information requested, something that triggered this unnecessary application, I consider this to be a proper case to make the costs be in the cause so that a proper assessment regarding the whole issue of costs is made when the matter has been finally determined.

Disposition

The application is hereby dismissed with costs being in the cause.

Atherstone & Cook, applicant's legal practitioners

Mawere & Sibanda, respondent's legal practitioners