CIV/T/649/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

BARCLAYS
BANK PLC Plaintiff

V

TABRIH
CONSULTANCY (PTY) LTD. Defendant

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 21st November, 1985.

Plaintiff
bank sues for payment of an amount of M5590.06 with interest on that
amount at the rate of 22% per annum from 2nd September
1985 being the
balance owing by the Defendant to the Plaintiff in respect of
overdraft facilities granted by Plaintiff to Defendant.

The
Plaintiff alleges that Defendant operated a current banking account
at Plaintiff's Maseru Branch and that it was an implied
term of their
contractual relationship that the overdraft with interest thereon at
the prevailing rate from time to time would
be repayable on demand.

Plaintiff
alleges that as at 2nd September 1985 the Defendant's account has
overdrawn to the extent of M5590.06 and that the prevailing
rate of
interest is 22% per annum.

In an
application for summary judgment an affidavit has been filed by
Defendant's managing director who states

that the
overdraft facilities were extended by Plaintiff to Defendant on the
basis of a specific practice that existed between Plaintiff
and
Defendant. He attaches

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bank
statements to his affidavit which show that as far back as November
1984 Defendant's account was overdrawn in various amounts
from time
to time interspersed with long periods when the account was
substantially in credit.

Deponent
denies that there was any express or tacit agreement that repayment
was to be made on demand. He says that Defendant's
account was to be
credited with any deposits as and when they arrived and any overdraft
is therefore not due. Deponent further
denies that any demand was
made.

Hard as
it may be to believe, it seems to be Defendant's allegation that the
account if overdrawn is never repayable except by way
of deposits
made to the credit of the account as and when they arrive. This is
tantamount to a statement that the account if overdrawn
must remain
in limbo, forever, if necessary, unless and until Defendant of its
own choice makes deposits to the credit of that
account. It must be
borne in mind that deponent does not allege that this is the specific
agreement between the parties but says
that it arises out of the
course of practice between them. I find such an inference impossible.

Normally,
an overdraft is repayable either on demand or on the lapse of a
reasonable time. See Trust Bank of Africa Ltd. v Senekal
1977(2) 857.
The overdraft facilities have been used by Defendant for over a year
now, and there is no room for any inference that
Defendant was
entitled to more than the lapse of a reasonable time for the use of
the facility before it could be called up. The
present overdraft
situation has continued from 2nd August 1985 to 2^nd

3

September
1985 during which time the amount overdrawn varied between M4609 end
M12604 ending up on 2nd September 1985 in the amount
claimed.

Summons
was issued on 20th September 1985 and it seems to me that more than a
reasonable time has elapsed entitling Plaintiff to
call up the
overdraft.

However,
it is Plaintiff's case, even though denied by Defendant, that in
terms of the agreement between the parties the overdraft
was
repayable on demand.

Plaintiff
alleges, as an essential part of its case, that demand was made. This
is denied by Plaintiff. On Plaintiff's version of
the agreement
demand is a condition precedent to its cause of action and is
necessary in order to complete it. See Vessels Law
of Contract 2nd
Edition p. 2099. In the absence of demand the summons is defective
Hooper v De Villiers 1936 TPD at 202. In view
of Defendant's denial
on oath that demand was made, Plaintiff is not entitled to summary
judgment. The application is refused,
Defendant is granted leave to
defend the action and the costs of these proceedings are to be costs
in the cause.

D.S. LEVY

ACTING
JUDGE.

21st
November, 1985.

For
Plaintiff : Mr. Harley

For
Defendant : Mr. Addy