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),

2

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

3

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

4

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.