CIV/T/624/85

IN THE HIGH COURT OF LESOTHO

In the matter of :-

BARCLAYS BANK PLC Plaintiff

vs

TABIRITH CONSULTING (PTY) LTD Defendant

JUDGMENT

Delivered by the honourable Acting Chief Justice Mr. Justice J L Kheola on the 5th day of January, 1987,

On the 11th day of June, 1985 and at Maseru a written agreement was entered into by and between the plaintiff and the defendant in terms of which the plaintiff released and supplied to the defendant a certain computer equipment and the total amount to be paid by the defendant to plaintiff was R32,367-51 and it was to be paid by monthly instalments of R980 over a period of thirty-six (36) months.

Clause 13 (b) of the agreement provided that should the defendant suffer any default judgment against it to remain unsatisfied for seven (7) days or be refused rescission of any default judgment the plaintiff would have the right to claim immediate payment of all the monies due to it including the balance of the rentals (instalments),

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alternatively, to cancel the agreement and to repossess the equip­ment and then to claim damages.

On the 19th September, 1985 the plaintiff lodged a summons with the Registrar of this Court and claimed immediate payment of the outstanding amount together with interest; alternatively, repossession of the computer equipment together with damages and interest. It was alleged that the defendant was in breach of clause 13 (b) of the agreement in that a default judgment was granted against the defendant under High Court Case No. CIV/T/548/85 and that such judgment remained unsatisfied for a period of seven (7) days from the date it was granted namely on the 9th September, 1985 until the 19th September when the summons was issued. The plaintiff claims that it is not prepared to condone the breach of the provisions of this clause of the agreement.

The defendant admitted that a default judgment was obtained against it CIV/T/548/85. It was granted on the 2nd September, 1985 and not on the 9th September, 1985 as alleged by the plaintiff. It contends that it satisfied the judgment debt timeously inasmuch as satisfaction of a judgment debt is a process more or less protracted beginning with its acknowledgment, taxation, or assessment thereof and finally payment of the amount agreed upon by both sides as that owed. The debt claimed in the summons was M12,397-99 and yet the writ fixed it as M13,714-00. The interest claimed in the two documents varied. Finally it was found that the amount owing was in fact M12,386-05 inclusive of the principal, interest costs and the sheriff fees.

On the 10th June. 1986 the parties' attorneys held a pretrial conference in terms of Rule 36 of the High Court Rules 1980. Paragraph

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2 of the minutes of the conference reads as follows:

"That the plaintiffs have decided that there is no further purpose in continuing with the claim as the defendant has paid all the arrear instalments in connection with the "Lease" agreement, thus resolving the main issue between the parties, but that defendants should bear the costs of withdrawing the case."

The dispute between the parties is who has to bear the costs now that the case has been withdrawn by the plaintiff. It was never the basis of the plaintiff's case that the defendant was in arrears in the payment of its monthly instalments. The plaintiff's case was basically that the defendant was in breach of clause 13 (b) of the agreement.

I do not agree with what appears in the pre-trial conference minutes that payment of arrear instalments resolved what is called the main issue between the parties. The pleadings clearly show that the main and only issue between the parties was a breach of clause 13 (b) of the agreement.

It is common that on the 2nd September, 1985 a default judgment was obtained by a certain plaintiff against the present defendant in CIV/T/548/85. The judgment remained unpaid until the 18th September, 1985 when the defendant paid an amount of M11,963-45. The last payment was paid on the 19th September, 1985 in the amount of M422-60. The defendant claims that the delay was due to the fact that there were discrepancies that had to be rectified before the exact amount owed by the defendant could be ascertained. The present plaintiff is not Interested in all the explanation because there was a default judgment which remained unpaid for more than seven (7) days after it was obtained

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It was the duty of the defendant to ensure that while the agreement between it and the plaintiff was still in force it suffered being no default judgment which remained unpaid for seven days. In order to avoid caught with an unpaid default judgment, the defendant ought to have, at least, applied for a rescission of judgment or to have paid into Court the amount in the default judgment while the negotiations were going on as to the exact amount owed. By allowing the default judgment to remain unsatisfied for over seven days the defendant was definitely in breach of the provisions of clause 13 (b) of the agreement. In fact a writ of execution was issued and certain property was attached as proof that the default judgment was valid until it could be set aside. It was never set aside until it was fully satisfied on the 19th September, 1985.

I come to the conclusion that the defendant was in breach of the provision of clause 13 (b) of the agreement and that if the matter had gone to trial the plaintiff would have been the successful party.

The defendant is ordred to pay the costs of the action. The costs of the application in which the present plaintiff applied for the attachment of certain computer hardware which was in the possession of the defendant in order to protect that property against deterioration in value pending the determination of this case, were reserved for determination by the trial court. As the costs were apparently not to be costs in the cause I am unable to understand why they were reserved for determination by the trial court. The defendant was a successful party in that application because the Court refused the plaintiff the relief it sought. I order that the plaintiff must pay the costs of that application.

J L. KHEOLA

ACTING CHIEF JUSTICE.

5th January, 1987.