IN THE HIGH COURT OF LESOTHO In the
ANACTLETUS N. LEUTA Applicant
TAD - CONSULT (PTY) LTD Respondent
Delivered by the Honourable Mr, Justice J.L. Kheola on
the 8th day of June, 1987.
an application for rescission of a default judgment granted in
CIV/T/138/86 and for stay of execution in the said case and
On the 8th June, 1987 I dismissed the application and
indicated that reasons for judgment would follow at a later stage.
In his founding affidavit the applicant deposes that on
the 17th July, 1986 the deputy sheriff served a writ of execution in
on his wife at their home. He avers that to the best of
his knowledge and recollection he had never been served with any
or a letter of demand preceding CIV/T/138/86 and was
therefore not in default in any manner.
The applicant further deposes that he has reasonable
prospects of success in the matter in that although an agreement was
him and the respondent, the condition precedent to
payment of any amount was not fulfilled by the respondent, which was
a loan for the applicant from a Dank; secondly, the draft
memorandum which was to be prepared by the respondent had not been
by the proper authority; and, thirdly, the respondent
repudiated the contract verbally when he could not obtain a loan for
In its opposing affidavit deposed to by one P.K. Tabirih
who is its managing director, the respondent avers that from the
the transaction between itself and the applicant which forms
the subject matter of the dispute in CIV/T/138/86 the applicant
one Lesojana Francis Leuta, an employee of the Central
Bank, Maseru, as his agent for purposes of the transaction in
applicant held out the said Lesojana Francis Leuta as
applicant's agent through whom he would communicate with him, and
business address at the Central Bank, Maseru, as that
at which all correspondence and communications from it to the
the transaction should be directed. Accordingly
the summons and the declaration in CIV/T/138/86 were served on
Lesojana Francis Leuta
on the 3rd March, 1986 at the Central Bank
address, and to respondent's knowledge the said Lesojana Leuta
brought the summons to
applicant's attention. Referrence was made to
the deputy sheriff's return of service which clearly shows that
Lesojana Leuta accepted
the summons. The letter of demand was sent to
the applicant through his address and agent at the Central Bank.
Regarding the loan the respondent deposes that it was
never a condition precedent to payment of any amount under the
the parties that respondent was to obtain a loan
for applicant from a bank.
He refers to clause 5 of the agreement and the relevant
part reads as follows:-
"The arrangement for the financing of the project
by L.A.D.B. shall be between the orderer and the LADB' based upon the
proposals compiled by TAB CONSULT on behalf of the
The respondent further deposes that in terms of clause 6
of the agreement between the parties the drawing up of the proposal
to do with the amount of M4,000-00 claimed in
CIV/T/138/86. The amount was to be paid to enable respondent
undertake the necessary
engagements forming the basis of the
proposal. Clause 6 of the agreement reads as follows:-
"Immediately upon the signing of this agreement,
the "Orderer" shall pay to TAB-CONSULT an amount of M4,000
Maloti ONLY) being an amount to cover all costs
involved in collection of appropriate data, tentative designs, plans
etc., final proposals plus the corresponding cash flow of
the total.project which in torn shall be submitted to the LADB on
of the "orderer" for the award of the financing
reffered to in point 5. of this agreement."
In his replying affidavit the applicant denies that he
ever appointed Lesojana Francis Leuta of Central Bank as his agent.
It is surprising that none of the parties decided to
obtain an affidavit from Lesojana Francis Leuta to inform the Court
as to how
he dealt with the summons after it was served upon him by
the deputy sheriff. The return of service clearly shows that Lesojana
the summons and the question is what he did with them.
Lesojana Leuta signed the agreement
between parties as a witness; he again signed as a
witness the letter (Annexure B to the summons) which was written to
on the 1st April. 1985 giving the respondent the order
to execute the project and acceptance by the applicant of the project
of M60,000-00., It is also significant that in the letter the
applicant used the Central Bank address as his address. It is
improbable that Lesojana Francis Leuta could received the
summons on behalf of the applicant and merely ignore it and fail to
it to the applicant who is his relative. He had been involved
in the agreement right from the onset and knew very well what he had
to do with the summons. The probabilities are in favour of the
respondent that Lesojana delivered the summons to the applicant.
is no doubt that the applicant chose the Central Bank as his
address as appears from Annexure B.
The next important question is whether the applicant has
a bone fide defence to the respondent's claim. The onus was on
the applicant to make averments which, if established at the trial,
him to the relief asked for. The applicant has
misinterpreted clause 5 of the agreement whose terms are unambiguous.
clause 5 it is the applicant who has to approach LADB to
apply for a loan. The terms of clause 5 are so clear that even a
can easily understand them, I fail to understand where the
applicant got the idea that the respondent must apply for a loan on
behalf because clause 5 clearly states that the "orderer"
shall apply for the loan and according to the agreement the
applicant is the "orderer".
The applicant has also misunderstood clause 6 of the
agreement. It states in clear terms that "Immediately upon the
this agreement, the "Orderer" shall pay to TAB -
CONSULT an amount of M4,000-00" The agreement was signed on the
April, 1985 and it is common cause
that up to the 5th March, 1986 when the summons was
issued by the Registrar of the High Court, the applicant had not paid
agreed upon. Clause 6 sets out that the money was for
costs that the respondent would incur in the collection of data,
of a plan site, visits to the site etc. The respondent
performed its part of the contract and prepared the technical
or not these proposals will be accepted by LADB is
irrelevant as far as payment of the amount of M4,000-00 is concerned.
ought to have been paid immediately upon the signing of the
contract on the 1st April, 1985.
For the reasons stated above I came to the conclusion
that it is improbable that the applicant did not receive the summons
he has no bona fide defence to the respondent's claim
and that the application was lodged with the sole purpose of delaying
the execution of judgment.
The application was dismissed with costs.
J.L. KHEOLA JUDGE.
15th June, 1987.
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