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 limited
at
the election of Toyota Motor Sales Company
to repairing or
replacing such parts as shall
be acknowledged by it to be
defective in
material or workmanship. The repair or replace­
ment
of defective parts under this Warrant will
be made by any
authorised Toyota Distributor or
Dealer 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 Plaintiff
to 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 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.

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.