IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CIV. CASE NO. 915/95
In
the matter between:
MARILYN
AGLIOTTI (NEE DURANCE) Plaintiff
and
MIKE
KARAMITSOS Defendant
CORAM: A.F.M.
THWALA
FOR
PLAINTIFF: MR. MADAU
FOR
DEFENDANT: MR. MAZIYA
JUDGMENT
21/09/95
The
plaintiff excepts to the defendant's plea on the grounds that:
1. Defendant's
plea lacks averments which are necessary to sustain a defence in
terms of
Rule
23 (1)
2.
Defendant's plea is vague and embarrassing in terms of Rules 22 (2)
and 23 (1)
3. The
Defendant's plea lacks averments stating to what extent the facts on
summons are admitted or denied and further fails to clearly and
concisely state all material facts upon which the defendant relies in
his defence in terms of Rule 22 (2)
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4. The
Defendant's plea is a bare denial in that it does not disclose the
cause of defence in terms of Rule 23 (1)
The
defendant conters by objecting in limine that the plaintiff has not
complied with the formalities of the Rules of Court, the exception
must be dismissed. The proviso to Rule 23 (1) provides that "a
party who intends to take an exception that a pleading is vague and
embarrasising, he shall within a period allowed under this sub-rule,
by notice afford his opponent an opportunity of removing the cause of
complaint within fourteen days:... Provided further that the party
excepting shall within seven days from the date on which a reply to
such notice is received or from the date on which such reply is due
deliver his exception".
On
the 31st July, 1995, the applicant wrote a letter to defendant's
attorneys in the following terms:-
"I
refer to the above matter and our correspondence between your Mr.
Madau and the undersigned. Note that your plea as a whole remains
exceptionable and should you fail to put it in order within fourteen
days from the date hereof, application will be made by the applicant
to except".
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On
the 18th August, 1995, he served the defendant with the exception and
set it for hearing. The defendant did not remedy or remove the cause
of complaint. In the plaintiff's letter to the defendant, plaintiff
informs defendant that plea as a whole is still exceptionable which
suggests that defendant knew what is the matter complained about. The
defendant did not complain that the notice in the form of the letter
did not indicate the defect in his plea. I shall hold that even if he
did not comply strictly with Rule 23(1) court must deal with the
exception to save time. HERBSTEIN AND VAN WINNEN. The civil practice
of the superior courts in South Africa stats as follows:-
"The
Rules of court which constitute the procedural machinery of the
courts are intended to expedite the business of the courts.
Consequently they will be interpreted and applied in a spirit which
will facilitate the work of the courts and enable litigants to
resolve their differences in as speedy and inexpensive manner as
possible".
I
now consider whether the excption is valid. The defendant denies
every allegation made by the plaintiff in his particulars of claim.
The plaintiff is entitled to know what the defence is. The plaintiff
cannot know defendant defence if it is a bare denial. The defendant
must obey the
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rule
of pleading and admit, deny or confess and avoid. Rule 22 (2)
provides that:-
"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 the said facts are not admitted and to what extent,
and shall clearly and concisely state all material facts upon which
he relies".
The
defendant's plea does not set all material facts concisely. It is in
a form of a bare denial. A plea must be clear and unequivocal it must
not leave one guessing at what it means.
I
therefore allow the exception. The defendant must file an amended
plea within fourteen days from today.
A.F.M.
THWALA
JUDGE
