REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: I
In the matter between:
DEVELOPERS (PTY) LTD
Amunyela v Arovin Property Developers (I 2486/2011) 
NAHCMD 146 (31 May 2013)
Coram: MILLER AJ
Heard: 28 May 2013
Delivered: 31 May
The application is
dismissed with costs, which shall include the costs of one
instructing and two instructed counsel. The defendant must file its
next pleading within 20 court days calculated from the date of this
MILLER AJ :
 This is an
application brought at the instance of the defendant in the main
action to compel the respondent (the plaintiff in the main action) to
furnish certain requested further particulars to his amended
particulars of claim. I shall continue to refer to the parties as the
plaintiff and the defendant respectively.
 The defendant is
represented by Mr. Totemeyer SC together with Ms. van der Westhuizen.
The plaintiff is represented by Mr. Frank SC together with Mr.
 It is convenient to
quote the amended particulars of claim in full.
PARTICULARS OF CLAIM
PLAINTIFF is DESMOND AMUNYELA, a major male Businessman with his
address at Nr. 86B Amasoniet Street, Eros Park, Windhoek, Republic
DEFENDANT is AROVIN PROPERTY DEVELOPERS (PTY) LTD, a Company duly
registered in terms of the laws of the Republic of Namibia with its
business at Nr. 51 Lazarett Street, Southern Industria, Windhoek,
Republic of Namibia.
10 March 2011 the defendant acknowledged its liability to pay the
plaintiff in the amount of N$2.1 million as the final settlement for
the plaintiff’s consultancy work done on behalf of the
defendant. A copy of the aforesaid acknowledgement is attached
hereto marked “A”.
aforesaid acknowledgement does not correctly record the agreement
between the parties in that it does not correctly reflect the
parties thereto by not stating that it was signed by VA Sorenson on
behalf of the defendant and that plaintiff was intended to be the
undersigned referred to.
incorrect description of the signatories to the said
acknowledgement was occasioned by a common error of the parties who
signed the acknowledgement in the bona fide but mistaken
belief that it recorded the true agreement between the parties.
the premises plaintiff is entitled to have the said acknowledgement
rectified to reflect the above-mentioned capacities of the
terms of the aforesaid deed of acknowledgment the defendant pledged
to pay an amount of N$700,000.00 during March 2011 and to pay the
remaining balance of N$1.4 million on or before the end of July
defendant paid the aforesaid amount of N$700,000.00 by paying two
separate amounts of N$350,000.00 on the 11th of March
2011 totaling N$700,000.00.
defendant failed to pay an amount of N$1.4 million by the end of
the premises the defendant is liable to pay to the plaintiff an
amount of N$1.4 million.
plaintiff claims against the defendant:
order rectifying the acknowledgment of liability signed by the
parties by inserting the word “For and on behalf of the
company” immediately above the signature of VA Sorenson
and by the insertion of the word “Undersigned”
immediately above the signature of DD Amunyela.
of the amount of N$1,400,000.00
on the aforesaid amount at the rate of 20% per annum from date of
payment to date of judgment.
and/or alternative relief.
AT WINDHOEK ON THIS 8TH DAY OF OCTOBER 2012.’
 The defendant’s
thereupon filed a request for further particulars relating to
paragraph 3 and paragraph 6 of the amended particulars of claim.
 As far as paragraph 3
is concerned the defendant sought further particulars relating to the
nature of the consultancy work allegedly done details as to when and
where it was done, whether there was a contractual basis for the work
to be done and the total value or amount of the work done.
 In respect of
paragraph 6 the defendant sought particulars as to when where and how
payment was made as well as the identities of the parties concerned
with the payments.
 To this request the
plaintiff responded as follows:
paragraph 1 thereof
claim is based on the acknowledgment of defendant. The underlying
cause for the acknowledgment is irrelevant to plaintiff’s claim
and is in the personal knowledge of defendant. The particulars sought
are thus not necessary for defendant to enable him to plead.
paragraph 2 thereof
is referred to paragraph 29 of his affidavit opposing summary
judgment where he admits payment of N$700,000.00 to plaintiff and the
information sought accordingly falls within his personal knowledge.
The particulars sought are thus not necessary for defendant to enable
him to plead.’
 This response or the
defendant’s perceived lack of a proper response to put it more
correctly prompted the present application.
 Rule 21(1) of the
Rules of this Court reads as follows:
A party may before delivering a pleading in answer to a pleading
delivered to him or her and for the purpose of enabling him or her to
plead thereto or to tender an amount in settlement, deliver a notice
within 15 days of receipt of such pleading or of the delivery of a
notice of intention to defend as the case may be, calling for only
particulars as may be, strictly
necessary for either purpose aforesaid.” (my emphasis).
 The underlined words
in the context of Rule 21(1) substantially limits the scope and ambit
of what may be requested and what must be furnished.
Mr. Frank referred me to the judgment in SA
Railways and Harbours v Deal Enterprises (Pty) Ltd
1975(3) SA 944 (W) at D during the course of which Botha
J formulated the following principles:
function of particular of plaintiff’s particulars of claim or
declaration, at the pleading stage, is to fill in the picture of the
plaintiff’s cause of action, to limit the generality of the
allegations therein, and to define with greater precision the issues
which are to be tried; the purpose of such particulars is to enable
the defendant to plead or to tender an amount in settlement.
(Curtis-Setchell, Lloyd and Matthews v Koeppen, 1948 (3) SA 1024 (W)
at p. 1027; Samuels and Another v William Dunn & Co. S.A. (Pty)
Ltd., 1949 (1) SA 1149 (T) at pp. 1158, 1159, Tahan v Griffiths,
1950 (3) SA 899 (O) at pp. 902 - 3; White v Moffett Building &
Contracting (Pty.) Ltd., 1952 (3) SA 307 (O) at pp. 311 – 2;
Rule 18 (4); Rule 21 (1), and cf. Rule 21 (4); Van Tonder v Western
Credit Ltd., 1966 (1) SA 189 (C) at p. 195A - B – D; Gibbs and
Others v Allen and Others, NN.O., 1973 (1) SA 351 (E) at pp. 354 -
formerly a plaintiff was obliged to furnish such particulars as were
“reasonably necessary” to enable the defendant to plead
or tender, the position is now that such particulars only are
required to be furnished as are “strictly necessary” for
either of the said purposes; the new Rule has restricted the scope
of a request for particulars to “absolute essentials”.
(Rule 21 (1); Van Tonder, supra at p. 195B – C; Rondalia
Versekeringskorporasie van SA Bpk. v Mavundla, 1969 (2) SA 23 (N) at
pp. 26 in fin – 27 top; Cete v Standard & General
Insurance Co. Ltd., 1973 (4) SA 349 (W) at p. 353A – D).
hard and fast rules can be laid down as to the degree of
particularity that is required, the Court exercises its discretion
upon the facts of each case; and the decision in one case is no safe
guide to the solution of another unless the relevant facts are
supra at p. 315G – H, Erasmus v Venter, 1953 (3) SA 828 (O) at
p. 830D - E; Bantry Head Investments (Pty.) Ltd. and Another v Murray
& Stewart (Cape Town) (Pty.) Ltd., 1974 (2) SA 386 (C) at pp. 398
in fin – 399A).
defendant seeking an order for further particulars to be supplied
must satisfy the Court that without such particulars he will be
embarrassed in pleading; he must show that the plaintiff has failed
to deliver particulars “sufficiently” in terms of what
is required, i.e. that particulars are lacking which are strictly
necessary to enable him to plead or to tender. This he can do by
relying only upon the terms of the plaintiff’s pleadings as
such, but it is also open to him to adduce evidence on affidavit of
matters extraneous to the pleadings in order to explain the cause of
his embarrassment; outside evidence, however, may be used only for
the purpose of satisfying the Court that particulars are required
within the ambit of the general principles applicable, and not for
the purpose of extending the scope of the particulars required in
terms of those principles.
supra at p. 1028; Samuels, supra at 9. 1156; Erasmus, supra at p.
833A – D; Rule 21 (6); Mavundla, supra at p. 27A; Gibbs, supra
at pp. 353C – 354C).
defendant is not entitled to know the plaintiff’s evidence, as
opposed to the outline of the case which is being brought against
him. He is not entitled to information simply because it would be
useful to him. In particular, he is not entitled to be supplied with
information which forms no part of the plaintiff’s cause of
action as formulated, or which relates to matters extraneous to the
facta probanda put forward by the plaintiff himself, for the
purpose of enabling him to ascertain whether he has a defence to the
claim, or to formulate such a defence.
supra at p. 1028; Samuels, supra at 9. 1156 – 1160; Van Tonder
supra at p. 195D – G; Gibbs, supra at pp. 355C - 356G; Elvinco
Plastic Products (Pty.) Ltd. v Grotto Steel Construction (Pty.) Ltd.,
1974 (3) SA 676 (C) at pp. 678F – G, 679A – B, F,
a defendant is entitled to particulars in accordance with the
abovementioned principles, the plaintiff cannot avoid the obligation
of furnishing them and thus incorporating them in the pleadings, by
stating that the relevant information is in the possession of the
defendant, or available to the defendant from other sources.
supra at p. 1157; Tahan, supra at pp. 905A – 906A; Mavundla,
supra at p. 30G – H; Bantry Head Investments, supra at p. 7
procedure relating to particulars has been much abused for many
years and it is still being abused.
supra at p. 1101; Erasmus, supra at p. 837E; Purdon v Muller, 1961
(2) SA 211 (AD) at pp. 214H – 215H; Rule 21 (7); Moaki v
Reckitt & Colman (Africa) Ltd. and Another, 1968 (3) SA 98 (AD)
at p. 102C; Cete, supra at p. 351F – H).’
Mr. Totemeyer submitted that the introduction of the Judicial Case
Management System in this Court has the effect, inter
alia, for more openness and disclosure, and
that the judgment by Botha J should be considered with that in mind.
He submitted further that the authorities relied on by Mr. Frank are
founded in a true adversarial system which no longer applies in this
 He consequently
urged me to consider those authorities with a degree of
 It is correct to say
that with the introduction of judicial case management some of the
holy cows of a true adversarial system became diluted or were done
away with. The purpose of judicial case management always is to
expedite the judicial process and to identify and isolate the real
disputes between the parties.
 If anything in my
view judicial case management fortifies the confining nature of Rule
21(1) rather than militate against it. Requests for further
particulars which are not strictly necessary, serve only to delay the
 The principles
formulated by Botha J apply a fortion in the present system of
judicial case management.
 I turn to consider
the factual issue whether or not the particulars requested are
strictly necessary to enable the defendant to plead. The
consideration whether or not the particulars requested are strictly
necessary to tender an amount in settlement does not apply. Put
differently the question is whether the refusal by the plaintiff to
furnish the particulars has as its result that the defendant is
embarrassed in pleading its defence to its claim.
 Mr. Totemeyer,
correctly stated that a party in possession of an acknowledgement of
debt arising from an underlying set of facts which in itself will
support a claim is entitled to sue either on the acknowledgment of
debt itself or on the underlying cause of action which gave rise to
the former. Mr. Totemeyer is also correct in saying, and in this he
is supported by Mr. Frank that in cases where the acknowledgment is a
novotion or a compromise of the underlying cause of action only the
acknowledgment of debt may be sued upon.
There was some debate before me as to whether the acknowledgment of
debt in casu is a
compromise or not. I consider it unnecessary to determine that issue.
I have no doubt that on the pleadings as they stand, the plaintiff’s
case is founded on the acknowledgment of debt and not on the
underlying cause relating to the consulting work that was done. Apart
from the fact that the plaintiff says so in express terms a reading
of the pleadings as a whole makes that abundantly clear. The facts
concerning the consultancy work are facta
probantia to which the defendant is not in
law entitled to further particulars.
 Faced with the fact
that the defendant is confronted with a document in which it is
alleged it had acknowledged its indebtedness to the plaintiff it can
not in any manner complain that it embarrassed in pleading to that
allegation. The defences open to the defendant and there may well be
several, can be pleaded with relative ease.
 I need say little
about the further particulars requested in relation to the payment of
N$700,000.00. It is already at this stage common cause that the
defendant paid that amount to the plaintiff and the allegation that
it was in fact paid need not embarrass the defendant in pleading
 In the result I make
the following orders:
The application is
dismissed with costs, which shall include the costs of one
instructing and two instructed counsel.
The defendant must file
its next pleading within 20 court days calculated from the date of
P J MILLER
PLAINTIFF: T Frank SC
(with him S Rukoro)
Instructed by Sisa
Namandje & Company
DEFENDANT: R TÖTEMEYER
SC (with him CE van der Westhuizen)
Instructed by Koep &