HIGH COURT OF LESOTHO
CASH & CARRY t/a PLAINTIFF
FLIGHT ONE HOTEL DEFENDANT
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 19th
day of October, 1992.
Plaintiff : Mr. S.A. Redelinghuys
Defendant : Mr. T. Mahlakeng
an application for summary judgment.
plaintiff company's claim contained in the summons reads as follows:
for the sum of M21,417-90 in respect of goods sold and delivered by
the Plaintiff to the Defendant, at the latter's special
request pursuant to an agreement between the parties.
thereon at the rate of 18.5% per annum calculated from February and
March 1990 to date of payment and compounded monthly.
or alternative relief."
plaintiff's General Manager has sworn the usual affidavit, in which
he deposes that the defendant is indebted to the plaintiff
amounts claimed in the Summons, and that he verily believes that the
Defendant has no bona fide defence to the action.
Manager of the defendant firm has sworn an opposing affidavit in
which he deposes inter alia:
"4.1. ... I aver that the Defendant was but is no more indebted
to the Plaintiff in the amount claimed in the summons or at
4.2. Information gathered from the books and records of the Defendant
shows that the Plaintiff was duly paid what was due to it.
I have in
my possession receipts showing that the Defendant effected periodic
payment until the Plaintiff was paid in full. I annex
of receipts evidencing payments made to the Plaintiff collectively
marked "A". I notice that there is
a missing receipt in the
sum of M400.00. I am making further attempts to trace it.
5 I state that the Defendant has a bona fide defence to the claim as
reflected in the summons. The Plaintiff was duly paid the
by the Defendant...."
to the Manager's affidavit are photostatic copies of four receipts
issued by the plaintiff company to the defendant firm
Part Payment of Unpaid 500.00
Part Payment 500.00
Redelinghuys for the plaintiff submits that the cause of action arose
in February and March 1990 as this can be inferred from
of the statement of claim in the summons. Mr. Mahlakeng in turn
submits that the plaintiff has not definitively stated
when the cause
of action arose and that no inferences can be drawn in the matter. I
agree. The plaintiff has not stated when the
goods were sold and
delivered and when payment therefor became payable. Even the date
when interest became payable is not specified.
Even if it were
specified, it would not necessarily indicate when the cause of action
arose -the parties might well have agreed
that interest would become
payable e.g., 30, or 60, or 90 days after the date of payment arose.
Redelinghuys points to the affidavit in support, which states that
the debtor is indebted in the amounts claimed in the summons
submits that therefore the deponent had already taken account of
payments already made by the defendant. I appreciate that under rule
28(4), the plaintiff may not adduce any evidence in rebuttal.
Redelinghuys is therefore once again asking the Court to draw an
inference in the matter and as Mr. Mahlakeng rightly submits,
plaintiff's claim must be so specific, grounded by the supporting
affidavit, as to obviate any need for inference. On the other
the defendant's Manager has sworn, in effect, that the plaintiff has
failed to take account of the payments made by him,
raises a triable issue.
Redelinghuys submits that one receipt is expressed to be in "Part
Payment Of Unpaid Cheque", and yet the defendant
details of any dishonoured cheque. I cannot see that that effects the
issue; the receipt nonetheless constitutes a receipt
for payment of
M500, and the same can be said of the fourth receipt.
is said and done, the plaintiff's General Manager deposes that the
defendant firm is indebted in the amounts contained
in the summons.
The defendant's Manager denies this, deposing that "the
Defendant was, but is no more indebted to the Plaintiff
in the amount
claimed in the summons or at all ... the Plaintiff was duly paid what
was due to
thereafter claiming "periodic payment until the Plaintiff was
paid in full", annexing receipts which in total
fall but M406.37
short of the full amount, in respect of which the deponent avers that
he is endeavouring to trace a particular
receipt. That, as I see it,
is a full defence, adduced by way of affidavit. At this stage there
is no gainsaying it. It clearly
raises a triable issue.
application for summary judgment is therefore dismissed. I grant the
defendant unconditional leave to defend and I order that
costs be in
at Maseru This 19th Day of September, 1992.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law