CRI/T/322/85

IN THE HIGH COURT OF LESOTHO
In the matter of

LESOTHO BUILDING FINANCE CORPORATION PLAINTIFF

V
I. M. MOHALE DEFENDANT

JUDGEMENT

Delivered by the Hon Chief Justice T.S. Cotran
on
the 15th day of January, 1986

This is an opposed application headed "in the
matter of condonation/ uplifting of Bar' in terms of Rule 26(6) read
with Rule
59 of the HighCourt Rules".

It is common cause that in May 1985 the Plaintiff (a
statutory Corporation) sued the defendant (who was at one time an
employee of
the plaintiff) to recover

the sum of MS,571.69 being the balance of money (with
interest at 7% as at 31st January 1985) advanced against defendant's
salary
during his period of employment.

Notice if intention to defend was filed timeously.
Further particulars were requested and these were supplied on 31st
May 1985.

The defendant and his attorneys did not do anything
about filing a plea but were in negotiations with Mr. Mphalane, then
a member
of the firm of Cooper & Sons, who granted them one
indulgence after the other which extended to the 30th August 1985, a
period
of nearly three months. Mr Mphalane

/attorney for

-2-

attorney for plaintiff then gave notice to defendant
attorney to file plea within 72 hours. No plea was filed. Attorney
for defendants
says that E G. Coopers & Sons closed their offices
and he could not serve the papers. I am satisfied however, that E 6
Coopers
& Sons remained open for business until the end of
September 1985, certainly longer than 72 hours given in the notice.

On the 8th November, and after E G Coopers & Sons
closed their office, Mr. Mphalane,now in partnership with
others, gave another notice to defendant's attorney to deliver a plea
within three days A plea was delivered
on the 15th November, two
days late The defendant's attorney moved the Court on the 19th
November to condone/uplift the bar as earlier
stated. This was
opposed

The principles upon which the Court will come to the
assistance of a defendant are well known and have been sufficiently
canvassed
in the heads of argument filed by both attorneys. These
were suported by most of the well known cases on the subject These
need
not be quoted in this Judgement suffice it to say that

1 The onus is on the applicant to explain the delay
which explanation must be reasonable and

2. The applicant must advance a bona fide defence to the
claim and 3 The respondent must be shown not be prejudiced by any
delay.

The delay of three months from May 1985 to August, 1985
was not reasonable but I will accept that attorney for plaintiff
condoned
the lapses. But in November 1985 plaintiff is entitled to
come to Court and say that enough is enough The bona fide defence
should
usually emerge by way of affidavit from the mouth of the
applicant In this instance it has emerged from the mouth of his
attorney
in paragraphs 2, 3, 4 and 5 of his affidavit The defence,
to say the least, is not clear cut.

/Attorney on . ..

-3-

Attorney on behalf of applicant says -

1. 
   Except for a few cheques of which the
   applicant/defendant
   has no knowledge, the rest of the cheques
   which plaintiff/
   respondent says were payments by way of advances
   were payments
   for mileage claims submitted by the applicant

   
   

2. 
   The applicant denies that the advance bore interest at
   7% and
   denies that certain amounts were deducted from his pay
   from
   August 1979 to June 1984

   
   

3. 
   The applicant admits that the advances that were ever
   made were
   for a car "as the defendent was never advanced
   with any salary
   or for any other purpose"

   
   

4. 
   The applicant denies that a total sum of M2.890 35 was
   deducted
   from his salary but alternatively,

   
   

5. 
   The plaintiff/respondent neglected or refused to pay
   him M4,181.84
   being his terminal benefits and to refund Pension
   contributions.

   
   

6 The applicant is not endebted "as alleged or at
all".

It will be noticed that the sum total of the defence is
a bare denial of a debt in one paragraph, an admission that an
advance for
the purchase of vehicle was granted to applicant in
another paragraph, and that if any amount is outstanding in
plaintiff/respondent
favour it is covered or almost so, by
applicant's terminal benefits No set off was claimed

This defence seems to me to be a dilatory and hardly
entirely bona fide. What does worry me, however, is that I
have some doubt about the accuracy of the figure claimed by plaintiff
because their accounts during
the period in question appear to show
that there might be' a mistake. One similar action was withdrawn due
to an error In the new
summons dated 19th February 1985 (at the top
of p 2) there appears the words "claim One" and "claim
Two". The
figure claimed in two is left blank

My anxiety may amount to nothing, but I feel disposed to
grant the application, in terms of Rule 26 (8) on very stringent
terms viz
-

1. As the opposition to the application was entirely
justified

applicant will pay the costs of the application into
Court within one week of its being taxed by the Registrar, and
at the same time

/2. The

-4-

2. 
   The applicant will pay into Court, in addition to the
   costs of
   the application, the sum of M2,000 being security for
   costs
   of the action

   
   

3. 
   The respondent is given leave to uplift the taxed costs
   referred
   to in 1 at any time

   
   

4. 
   If the applicant fails to abide by the above terms, the
   plaintiff/
   respondant will move the Court for a default Judgement

   
   

T S. COTRAN
CHIEF JUSTICE
15th January,
1986

For Plaintiff Mr Mphalane
For Defendant Mr. Khauoe