CIMAS Medical Aid Society and Mordecai Pilate Mahlangu and Matlhogonolo Mothibedi Valela and Emma Fundira and Bartholomew Mswaka v Chester Nhamo Mhende

### Preamble
1
HH 552-18
HC 5115/18
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CIMAS MEDICAL AID SOCIETY

and

MORDECAI PILATE MAHLANGU

and

MATLHOGONOLO MOTHIBEDI VALELA

and

EMMA FUNDIRA

and

BARTHOLOMEW MSWAKA

versus

CHESTER NHAMO MHENDE

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 27 June 2017 & 19 September 2018

Opposed application

A.P. de Bourbon for the applicants

T. Nyamasoka for the respondent

ZHOU J: This is an application to compel further particulars.  The applicants are the defendants in an action instituted by the respondent as the plaintiff in Case No. HC 3551/15.  The plaintiff in that matter is challenging the election of the second defendant as Chairman of the board of the first applicant and his removal from the board of the first applicant on the grounds of alleged irregularities.  The respondent seeks reinstatement to the board of the first applicant as well as damages which he alleges to have suffered as a consequence of his removal from the board of the first applicant.  Having entered appearance to defend the claim the applicants made an application for further particulars.  The respondent provided some of the further particulars sought but declined to grant others on the grounds stated in the response to the application for further particulars.  The instant application is for an order compelling the respondent to furnish the particulars sought in paragraphs 1 to 11 of the applicants’ request for further particulars.  The application is opposed by the respondent.

In the case of Curtis-Setchell, LIoyd & Matthews v Koeppen 1948 (3) SA 1024(W), at p. 1027, it was pointed out that the true function of particulars was (1) to limit the generality of allegations in the pleadings, (2) to define with more precision the issues, and (3) to prevent the party asking for particulars from being taken by surprise at the trial.  In the case of Durban Picture Frame Co (Pty) Ltd v Jeena & Anor 1976 (1) SA 329(D) at 334, booysens AJ added a fourth function, namely, “to furnish the party against whom a claim is made with such information as is strictly necessary to determine what tender or payment into Court, if any, should be made.  A leading statement on the approach to be embraced in determining whether the particulars sought are necessary to enable a party to plead is by macdonald ACJ in Time Security (Pvt) Ltd v Castle Hotel (Pvt) Ltd 1972 (1) RLR 155(A); 1972 (3) SA 112(RA) at 114E-115A:

“The word ‘enable’ in Order 11, Rule 2, is not to be interpreted as imposing a duty to give particulars only when without them it would be impossible to plead, any more than ability to prepare for trial means that, without the particulars requested, it would be impossible to prepare for the trial.  In the context, ability to plead or prepare for trial means the ability properly to plead or prepare for trial.  A litigant is not to be put in the position either of pleading in the dark or of preparing for trial in the dark.  No hard and fast rule can be laid down regarding the particularity required.  Each case must be judged on its own merits.  It is sometimes argued that, because a litigant who is unsure of the case he has to meet, may take refuge in a bare denial, he is not embarrassed by the lack of particularity and should postpone his request for particulars until the stage at which he is entitled to ask for particulars for the purpose of trial.

This was the argument advanced in Tahan v Griffiths 1950 (3) SA 899(O), and was the argument advanced by Mr Grossman in the present appeal.  The argument was held in Tahan’s case, in Rosen and Engelstein v Hawkins 1937 T.P.D. 410, and in Margau v King 1948 (1) SA 124(T) to be fallacious.

A litigant is entitled to know the case or defence he has to meet; not only to know whether he should admit or deny the particular allegation.  He is entitled to be placed in the position of being able to decide whether to persist with his claim or defence. This aspect has, perhaps, not been sufficiently emphasized in the decided cases.  A litigant must not be put in the embarrassing position of being forced to resort to a bare denial by the lack of particularity, a denial which, in the light of particulars supplied at a later stage, he might well be obliged to withdraw, or qualify.  He should be in the position honestly to deal with the matter and either to admit or deny an allegation in the light of the particulars furnished.”   See also Bronte Hotel (Pvt) Ltd v Low 1974 (2) SA 353® at 353.

The courts draw a distinction between particulars which are necessary to enable the opposite party to plead and particulars which may be regarded as necessary, after pleadings have been closed, to enable the party to prepare his or her case and prevent him from being taken by surprise at the trial, see Barnett v Cameron 1930 WLD 7; Thompson v Barclays Bank DCC 1965 (1) SA 365(W); Tahan v Griffiths 1950 (3) SA 899(O) at 902H-903A; Durban Picture Frame Co (Pty) Ltd v Jeena & Anor (supra) at 334.  The court has inherent power to order particulars to be furnished if it is considered necessary, Osman v Jhavary & Ors 1939 AD 35.  It is only when the party requesting the further particulars would be embarrassed or disabled from properly pleading that the court will order the furnishing of further particulars.  The rationale for such an approach is that while there is need for pleadings to be presented with precision, the procedure for requesting further particulars is one that can be abused to vex the other side or as a delaying tactic.  The courts have previously expressed concern at unnecessary requests for further particulars at the pleading stage, as HOLMES JA said in Minister of the Interior v Lockhat & Ors 1961 (2) SA 587(A) at 595: “The relentless request for particularity in pleading, unhappily somewhat prevalent in recent years, usually befogs the issues instead of defining them.” See also Van Tonder v Western Credit Ltd 1966 (1) SA 189(C).

Particulars requested in respect of pleadings must relate to the pleaded matters, and may not raise further or new issues, Cilliers et al, Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5th Ed., p. 831.  The problem with the particulars sought by the applicants is that they are not addressed to specific paragraphs of the plaintiff’s declaration and in some instances do not arise from specific averments made in the pleadings.  For instance, paragraph 1 of the request for further particulars asks: “On what date between August 2012 and September 2013 did the first defendant hold an annual general meeting?”  The respondent, understandably, responded that the request does not arise from the averments in his declaration and that, in any event, it pertains to meetings of the first defendant in respect of which the applicants as the defendants would have records.  The request clearly relates to facts which would be within the knowledge of the applicants, but that on its own is not a ground for denying the particulars sought, see Tahan v Griffiths, supra, at 905-906.  I would therefore refuse to order that those particulars be furnished because they do not arise from, neither do they relate to, the pleaded matters.

In para 2 of the request for further particulars the applicants ask the defendant whether members or member firms of the first applicant nominated any candidates for election as members of the Board of the first applicant and, if so, the names of the candidates so elected.  Likewise, the particulars sought in para 2 do not arise from the plaintiff’s declaration.  They do not constitute part of the plaintiff’s case as pleaded.  The request in this paragraph amounts to a fishing expedition.

The requests for particulars made in para 3 are properly founded.  Given the nature of the claim it is important for the plaintiff to commit itself to the dates, actual or estimated, on which it is alleged that the Annual General Meeting took place in June 2013 and when in September 2013 it is alleged that the third, fourth and fifth respondents were reappointed to the first applicant’s board.  The applicants are therefore entitled to the particulars sought in this paragraph.

In respect of para(s) 4, 5 and 6 the requested particulars do not arise from the respondent’s declaration.  In any case, I do not believe that they are necessary to enable the applicants to plead or that the applicants would be hindered in their pleading by the non-provision of the requested particulars.  It is up to the applicants to plead their case if it is based on those facts.  As for the particulars sought in para(s) 7, 8 and 9, the respondent correctly declined to provide them as the information sought amounts to evidence which should not be pleaded.

In para 10 the applicant asked for the date on which the respondent was first elected as a member of the board of the first applicant.  Paragraph 11 asks the respondent to state the date on which his membership was due to terminate in terms of the constitution of the first applicant.  This is relevant information which is necessary to enable the applicants to plead.  The request does not relate to evidence as suggested by the respondent.  The dates when events alleged took place are factual issues.

In view of the extent to which the applicants have failed to justify some of the particulars sought it is appropriate that each party pays its own costs of this application.

In the result, IT IS ORDERED THAT:

The respondent furnishes the applicants with the particulars sought in para(s) 3, 10 and 11 of the applicants request for further particulars.

Each party shall bear its own costs.

Gill Godlonton & Gerrans, applicant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners