HIGH COURT OF LESOTHO
MAISA MATSABA t/a FATHER & SON BUTCHERY Defendant
by the Hon. Mr Justice M.L. Lehohla on the 12th day of February,
an application moved for summary Judgment by the plaintiff which had
issued summons against the defendant wherein it preferred three
Claims set out below:
Claim 1 :
payment of the sum of M1 35 265-93
payment of interest on the above sum at the rate of 20.5% per annum
as from 12th November, 1996
further and/or alternative relief.
payment of the sum of M3 526 072-53
payment of interest on above amount at the rate of 20,5% per annum as
from 25th April 1996
further and/or alternative relief
payment of the sum of Ml 374 839-67
payment of interest on the above sum at the rate of 20.5% per annum
as from 22nd April, 1996
arose, according to particulars of claim, out of an oral agreement
entered into at Leribe between the parties, and at the special
instance and request of the defendant whereby the plaintiff advanced
monies to the defendant from time to time on overdraft account No
arose from a written agreement entered into between the parties in
terms of a copy annexed to the proceedings marked Annexure "A".
arose from a written agreement marked Annexure "B". It
seems convenient at this stage of the Judgment to indicate that the
Rule under consideration is Rule 28(2) reading :
"The plaintiff, who so applies, [for summary Judgment as set out
in sub-Rule 1] shall........................deliver
an affidavit..............verifying the cause of action and the
amount, if any
claimed and such affidavit must state –
in the opinion of the deponent the defendant has no bona fide defence
to the action and
entry of appearance has been entered merely for purpose of delay".
start of oral submissions Mr Mpobole for the plaintiff intimated that
the plaintiff was no longer pursuing Claim 1 for purposes of the
hasten to express the Court's regrets that because of its busy
schedule the Court was unable to find time within which to dispose
timeously of this application in respect of which it heard concluding
arguments towards the end of 1999.
well set out written submissions Mr Mpobole highlighted the fact that
in order to raise a successful opposition in a summary Judgment the
defendant must show (1) bona fide defence; (2) prospects of success
in the trial.
Counsel indicated that in order to fulfil the two requirements set
in (1) and (2) above, the defendant must make full disclosure of its
To show the defendant's failure in this respect the plaintiff draws
the Court's attention to Preamble 2 at page 2 of Annexure "A"
reading as follows :
2. Preamble -whereas :
2.1 the Borrower has requested the Bank to convert his overdraft
under account numbers 0240302238,0240303046,0240701619,0240305099 and
0261003163 into a loan
2.2 The Bank has agreed to convert the overdraft into a loan.
2.3 The parties have recorded their agreement in respect of the
aforesaid, the terms of which are set out hereunder.
Mpobole laid stress on the fact that the defendant doesn't deny
having signed the agreement.
demurred at the fact that on the contrary the defendant, through its
deponent Maisa Matsaba says he entered into agreement with the
plaintiff but says he has not been given the money.
Counsel urged that because of this contradiction the plaintiffs case
summary Judgment has been strengthened that the defendant has failed
disclose a defence.
to the onslaught Mr Phafane for the defendant, having regretted his
failure to submit heads of arguments pleaded with the Court to be
charry of granting a summary Judgment merely for the asking.
reason for this submission is that a summary Judgment is a very
drastic remedy. What is even more drastic is the fact that a summary
Judgment entails in essence that the defendant be condemned (hanged)
before being heard. To this extent it is a negation of the audi
alterem partem rule.
Counsel pleaded that because the audi alterem Partem rule is so
entrenched in our law the Court should be very reluctant to grant
this application. The learned Counsel in a fervent attempt to
persuade the Court against granting the application referred it to
the fact that the rule giving the Court a discretion to act in this
type of application has been interpreted in such a way that it is in
very rare cases that applications of this nature have been granted
Phafane demurred at the fact that plaintiffs counsel relied entirely
"A" and "B". He raised scruples at the
insinuation by the plaintiff in turn enjoying its counsel's full
support that in order to have answered adequately the defendant
should have delved into every detail and only then would he have made
a full disclosure.
counsel submitted that this is not the correct interpretation of the
relevant rule on summary judgment.
with Mr Phafane's submission that in an application for summary
Judgment there is no need for the defendant to be as detailed and
specific as he would otherwise be required to be when filing a plea.
important to note that even in filing a plea the defendant is not
required to go into fine details because a plea is not evidence which
otherwise is constituted by an affidavit in motion proceedings.
extent it follows that in summary Judgements the defendant need not
give a reply that strictly would be required when filing a plea.
Court in this connection is required therefore to be quite liberal
when dealing with applications of this nature : the reason being that
this is a very drastic and extraordinary remedy that is at variance
with the fundamental principle of audi alterem partem. See Fashion
Centre & Anor vs Jasat 1960(3) SA p 221 at 222.
stimulating to observe that this authority is referred to in the
invaluable works of I.Isaacs styled Becks' Theory and Principles of
Pleading in Civil Actions
p 329 at
330 where the following phrase is quoted i.e.
seems that there is no need in opposing affidavits to be as specific
as one is in a plea. It is sufficient if they disclose a bona fide
that learned Counsel for the defendant was astute enough to know that
doubts would most likely arise whether the defendant is not acting
bona fide and that entertainment of such doubts short of clear
evidence that he doesn't have a good defence should redound to the
defendant's benefit at this stage of the proceedings.
subscribe to the view that it is often tempting to regard full
disclosure required in motion proceedings as meaning the same thing
as the disclosure required in the summary trials where no such full
disclosure in the literal sense of the word
is required. Indeed the distinction at times appears to be very
subtle and as
reproved in law. But it remains a distinction which should not be
confused in the two sets of circumstances set out above.
be fruitful to have regard to Breitenbach vs Fiat SA(Pty) 1976(2) SA
p 226 at 228 A-E where the court dealt with the true meaning of the
word "fully" as it appears in the Rule relating to summary
Judgment. It is urged that the word "fully" be not given
Shepstone vs Shepstone 1974(2) SA 462 at 463 it appears the
authorities are in harmonious step with one another for in the words
of Colman J in Breitenbach above it is stated in paragraph A to E
must be accepted that the sub-rule was not intended to demand the
impossible. It cannot, therefore, be given its literal meaning when
it requires the defendant to satisfy the Court of the bona fides of
his defence. It will suffice, it seems to me, if the defendant swears
to a defence, valid in law, in a manner which is not inherently and
provision of the sub-rule which causes difficulty is the requirement
that in the defendant's affidavit the nature and the grounds of his
defence, and the material facts relied upon therefor, are to be
disclosed 'fully'. A literal reading of that requirement would impose
upon a defendant a duty of setting out in his affidavit the full
evidence which he proposes to rely upon in resisting the plaintiffs
claim at the trial. It is inconceivable, however, that the draftsman
of the Rule intended to place that burden upon a defendant.
respectfully agree............with the suggestion by Miller J in
Shepstone vs Shepstone 1974(2) SA 462 at pp 466-467, that the word
'fully' should not be given its literal meaning in Rule 32(3), and
that more is called for than this : that the statement of material
facts be sufficiently full to persuade the Court that what the
defendant has alleged, if it is proved at the trial, will constitute
a defence to the plaintiffs claim. What I would add, however, is that
if the defence is averred in a manner which appears in all
circumstances to be needlessly bald, vague or sketchy, that will
constitute material for the Court to consider in relation to the
requirement of bona fides ".
I am in
respectful agreement with the above outline of the position in law
regarding the matter on the tapis.
I am of
the view that the defendant has raised a bona fide defence which is
on all fours with the line of authority that the defendant has to
raise a bona fide defence which if proved would be good enough. That
in my view is the test; and not that the defendant is already
guaranteed victory at trial. In fact in Jasat above Harcourt J. A. at
p 222 E cites with approval De Villiers J.P.'s dictum in Lombard vs
van der Westhuizen 1953(4) SA 84 (C) that a Judicial officer is
neither obliged, "nor indeed entitled, to investigate or to
decide upon the probabilities of success" (Emphasis supplied by
do endorse the view that the discretion conferred on the Court should
not be exercised capriciously the Appellate Division's dictum in
Gruhn vs M. Pupkewitz & Sons (Pty)Ltd 1973(3) SA 49 AD is very
instructive. It indicates that the word "may" in sub-rule
(5) "confers a discretion on the Court," so that even if
the defendant's affidavit does not measure fully up to the
requirements of sub-rule 3(b) of Rule 32, the Court may nevertheless
refuse to grant summary Judgment if it thinks fit.
unable to resist reiterating Harcourt J.A.'s words with respectful
agreement at p 222 that:
".............To keep it in perspective, however, one must
remember that summary judgment is a drastic and extraordinary remedy
involving the negation of the fundamental principle audi alterem
partem, and resulting in final judgment which is normally only
granted in clear cases, and not where there is any doubt, in which
latter event leave to defend ought to be given".
above has formulated an approach which bears imitation. This appears
at p 467 E-H of the learned Judge's Judgment as follows :
"The Court will not be disposed to grant summary Judgment where,
giving due consideration to the information before it, it is not
persuaded 11 that the plaintiff has an unanswerable case".
learned Judge further says :
"..............a defendant may successfully resist summary
judgment where his affidavit shows that there is a reasonable
possibility that the defence he advances may succeed on trial".
above reasons summary Judgment is refused. The defendant is granted
an opportunity to defend his case. The papers on file shall stand as
pleadings. Costs are awarded to the defendant.
Plaintiff: Mr Mpobole
Defendant: Mr Phafane
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