Application for summary judgment – Defendant’s affidavit not disclosing a bona fide defence which is good in law – Defendant having failed to disclose with sufficient particularity and completeness the material facts upon which the defence is based - The application for summary judgment granted.
IN THE HIGH COURT OF LESOTHO
In the matter between:
MOOKOLI HOLDINGS T/A MOOKOLI
INFRA-CONS (PTY) LTD. PLAINTIFF
WHITE LIFE CONSULTANTS (PTY) LTD. DEFENDANT
Coram : L. Chaka-Makhooane J
Date of Hearing : 28th August, 2018
Date of Judgment : 9th November, 2018
High Court Rules, 1980.
 The plaintiff instituted an action against the defendant on the 4th March, 2018 in terms of which it claims payment of two hundred and eighty two thousand two hundred and five Maloti and ninety two lisente (M283, 205.92) plus interest at the rate of 18.5 % per annum, for services rendered to the defendant at its behest.
 The application for summary judgment is opposed. Before the defendant could file its plea the plaintiff applied for summary judgment in terms of Rule 28 (1) (b). The defendant in turn filed its affidavit, thereby invoking the provisions of Rule 28 (3) (b).
 It is the plaintiff’s contention that the defendant has filed the notice of appearance to defend for the purpose of delay and also to durden the plaintiff with more costs.
 According to the plaintiff, the defendant’s affidavit does not disclose a bona fide defence in that the defendant’s Managing Director (“MD”) in her affidavit alleges that she has paid all monies due to the plaintiff in full and final settlement.
 The deponent in opposing the application for summary judgment shows that she has a bona fide defence in the main action in that the defendant is not indebted to the plaintiff because the defendant had paid all the monies due to the plaintiff in full. According to the deponent the annexures to the plaintiff’s affidavit are vague and do not disclose the extent of the alleged indebtedness.
 The deponent further shows that the annexures are a mixture of a purchase order, a quotation, a construction cost claim and a tax invoice, which have not been explained in the application.
 Rule 28 (1) (b) on summary judgments applications provides that:
“(1) Where the defendant has entered appearance to defend the plaintiff may apply to court for summary judgment on each of such claims in the summons as is only –
(b) for a liquidated amount in money
together with any claim for interest and costs.
(2) The plaintiff, who so applies, shall within fourteen days after the date of delivery of entry of appearance, deliver notice of such application, which notice must be accompanied by an affidavit made by the plaintiff or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any claimed and such affidavit must state -
(a) that in the opinion of the deponent the defendant has no bona fide defence to the action and
(b that entry to appearance has been entered merely for the purpose of delay.
(3) Upon the hearing of the application for summary judgment, the defendant may –
b) satisfy the court by affidavit or, with leave of court, by oral evidence of himself or of any other person who can swear positively to the fact, that he has a bona fide defence to the action.”
 The procedure for summary judgment was elucidated by the Appeal Court in Mojola v Nitro Securitisation 1 (Pty) Ltd, where the court observed that:
“The purpose of summary judgment is to ‘enable a plaintiff with a clear case to obtain swift enforcement of a claim against a defendant who has no real defence to that claim.’ It is at the same time causing great loss to plaintiffs who were endeavouring to enforce their rights.”
 The case of Maharaj v Barclays National Bank Ltd outlined is inter alia that:
“The remedy of summary judgment is not intended to shut out defendants who are able to demonstrate a bona fide intention to defend the action. It does require them, however to show what their intended defences are. It must appear from what they say in this respect that the defences are legally sustainable and that they are maintained in good faith. They are expected to do this by setting out in their opposing affidavits the nature and grounds of the defence and the material facts upon which it is founded. If the averments made by a defendant in the opposing affidavit are vague, or markedly lacking in the particularity that might be expected in the circumstances of the case, then the court is likely to hold a bona fide defence has not been disclosed, and summary judgment will follow.”
 In cusu the defendant has not disclosed the nature and ground of its defence and the material facts upon which it is founded. The deponent on behalf of the defendant deposes that the defendant is no longer indebted to the plaintiff because it has paid all the monies owed in full and final settlement. The deponent shows that the annexures to the plaintiff’s affidavit are vague and they do not disclose the extent of the alleged indebtedness. I must humbly disagree that that is the case. On the contrary what the plaintiff has done is to show by way of annexures from the beginning how the defendant came to be indebted to the plaintiff. The plaintiff has fully disclosed the material facts upon which it relies, in its claim.
 The defendant on the other hand simply denies being indebted to the plaintiff and leaves it there. The deponent in her affidavit did not bother to annex even the very last receipt to depict the final payment of the debt. As a result the court in unconvinced that the defendant has disclosed a defence which is bona fide and good in law.
 I am of the view that the defendant’s affidavit is vague and it lacks sufficient particularity and the completeness required to convince the court that its defence is bona fide and that it was not raised simply for purposes of delay. I therefore, find that the defendant has not disclosed its defence and the material facts upon which it is based, to enable the court to decide whether the affidavit discloses a bona fide defence. The application for summary judgment must therefore, succeed.
 It is for the foregoing that I make the following order;
The application for summary judgment is granted with costs.
For the Plaintiff/Applicant : Ms M. V. Khesuoe
For the Defendant/Respondent : Dr L. Kometsi
 High Court Rules of 1980.
 See para 4 – 5 of the defendant’s affidavit.
 High Court Rules, 1980.
 2012 (1) SA 226 ( SCA) at para 25.
 1976 (1) SA 418 (A) at 425 – 426 (E).
 Maharaj v Barclays National Bank (Supra) at 426 A – D.
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