CRI/T/322/85
IN THE HIGH COURT OF LESOTHO In the matter of
LESOTHO BUILDING FINANCE CORPORATION PLAINTIFF
VI. M. MOHALE DEFENDANT
JUDGEMENT
Delivered by the Hon Chief Justice T.S. Cotranon 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
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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 . ..
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Attorney on behalf of applicant says -
Except for a few cheques of which the applicant/defendanthas no knowledge, the rest of the cheques which plaintiff/respondent says were payments by way of advances were paymentsfor mileage claims submitted by the applicant
The applicant denies that the advance bore interest at 7% anddenies that certain amounts were deducted from his pay fromAugust 1979 to June 1984
The applicant admits that the advances that were ever made werefor a car "as the defendent was never advanced with any salaryor for any other purpose"
The applicant denies that a total sum of M2.890 35 was deductedfrom his salary but alternatively,
The plaintiff/respondent neglected or refused to pay him M4,181.84being 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
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The applicant will pay into Court, in addition to the costs ofthe application, the sum of M2,000 being security for costsof the action
The respondent is given leave to uplift the taxed costs referredto in 1 at any time
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