CIV/T/418/84
IN THE HIGH COURT OF LESOTHO In the Matter between:
GOITSEMANG NTHETHE Applicant
and
PIONEER MOTORS (PTY) Ltd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai
on the 28th day of August, 1986.
This is an application for a summary judgment on the grounds that the defendant has no bona fide defence and appearance to defend is entered merely for the purpose of
delay.
Applicant and Respondent are respectively Plaintiff and Defendant in an action wherein the former has sued the latter for replacement of Toyota Corolla G.L.S. 1984 model; alternatively payment of the amount of M11,412-50 being the purchase price for the said Toyota Corolla G.L.S. 1984 model presently bearing registration A1775; payment of M651-45 as comprehensive insurance; costs of suit and further or alternative relief. When the Respondent entered appearance to defend the action, the Applicant applied for summary judgment as aforesaid.
Briefly, it emerges from both the declaration to the summons and the' affidavits, filed by the parties, that on 2Gth March, 1984, the applicant purchased from the Respondent a new Toyota Corolla G.S.L. 1984 model with engine and serial numbers 30061 and 9929406, respectively. It was subsequently registered in the name of the applicant and bore the registration number A1775. Shortly thereafter the vehicle was found to have a latent defect in that it had oil leakage on .
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its differential. The applicant returned the vehicle and lodged his complaint with the Respondent who took the vehicle but later gave it back to the applicant with the assurance that the defect had been cured. However, after the applicant had driven it for some time, the vehicle showed the same defect. Applicant again took it back to the Respondent and this time, told the latter to either replace the vehicle with a new one or refund the purchase price.
Notwithstanding demand, the Respondent refuses/ neglects to replace the said vehicle with a new one or refund the purchase price. Applicant submits that the Respondent is in breach of the warranty and therefore, liable to replace the said vehicle with a new free-of-defects vehicle alternatively to refund the purchase price, comprehensive insurance and pay the costs of this application.
The Respondent does not dispute that after it had been sold to the applicant, the vehicle showed some defects as alleged but argues that the defects have since been cured free of charges in accordance with the terms of the warranty supplied by the manufacturers of the vehicle and signed by. the applicant himself. That warranty reads, in part;
"The obligation under this warrant is limitedat the election of Toyota Motor Sales Companyto repairing or replacing such parts as shallbe acknowledged by it to be defective inmaterial or workmanship. The repair or replacement of defective parts under this Warrant willbe made by any authorised Toyota Distributor orDealer without charge for parts or labour "
AND
"The Warranty is expressly in lieu of all Warranties, expressed or implied, obligation or liabilities of Toyota Motor Sales Company and its Authorised Toyota Distributor or Dealer."
Consequently the Respondent disputes the submission that he is in breach of the Warranty and therefore liable as
alleged by the applicant. On the contrary he states that he has a bona fide defence to the main claim in as much as the
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necessary repairs have been effected on the vehicle in accordance with the terms of the Warranty signed by the applicant
and it is now free of any defects.
It is trite law that an application for summary judgment is not intended to afford an opportunity for a miniature trial of the issues involved in the main action -
See Herbstein and Van Winsen in their invaluable work, The Civil Practice of the Superior Courts in South Africa (1954 ed) at page 232 - All that the court is expected to do here is to find whether or not the Respondent has complied with the provisions of subrule (3) of Rule 28 of the High Court Rules 1980 which subrule reads:
"(3) upon the hearing of the application for summary judgment, the defendant may -
(a) give security to the Plaintiffto the satisfaction of the
Registrar for any judgment including such costs which may be given;
or
(b) satisfy the court by affidavit or,with leave of the court, by oralevidence of himself or of any otherperson who can swear positively tothe fact that he has a bona fidedefence to the action.
Such affidavit shall be delivered before noon not less than two court days before the hearing
of the application. Such affidavit or oral evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor."
In the present case the affidavits deposed to on his behalf are to the effect that the Respondent has a bona fide defence in the main action in that the latent defects on the vehicle have been cured free of charges in accordance with the terms of the Warranty signed by the applicant himself. The relevant extracts of the Warranty relied upon by the Respondent have been quoted in the affidavits. To my mind, if pleaded, the facts set out in the affidavits for the Respondent would constitute a bona fide defence to the claim in the main action. That being so, subrule (5) of Rule 28 of the
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High Court Rules 1980 provides:
"(5) If the defendant finds security as aforesaid or if he satisfied the court that he has a bona fide defence to the claim the court shall grant the defendant leave to defend the action and shall make such order as to further proceedings as it thinks fit." (My under!inings)
I have underlined the word "shall"in the above cited subrule (5) to indicate my view that the provisions thereof are mandatory and once the defendant has satisfied it that he has a bona fide defence the court has no choice but to' grant him leave to defend the action.
In the circumstances of this case I come to the conclusion, therefore, that the defendant must be given leave to defend the main action. The application for summary judgment is accordingly dismissed with costs. The Respondent is given 21 days from the date of this judgment to file his plea or request for further particulars, if he so wish.
B.K. MOLAI JUDGE
28th August, 1986.
For Plaintiff : Mr. Mphutlana For Defendant : Mr. Berkly.