CIV/T/158/87

IN THE HIGH COURT OF LESOTHO
In the matter of
:

KLOPPERS HANDEL (PTY) LTD Plaintiff

VS

LESOTHO PHOTO LABS & LIGHTING Defendant JUDGMENT

Delivered by the Hon. Acting Mr. Justice M. Lehohla on
the 7th day of September. 1987.

After a summons had been issued by plaintiff against
defendant for

(a) payment of the sum of M8991.53 in respect of
goods
sold and delivered by plaintiff at
defendant's special instance
and request which

sum remains due and payable;

2. 
   Interest thereon at 12% a tempore morae;

   
   

3. 
   Costs of suit; and

   
   

4. 
   Further and or alternative relief,

   
   

defendant gave notice of intention to defend the action
coupled with Notice to plaintiff to file security because plaintiff
is a peregrinus.
This notice of intention to defend was filed just
over a month after the summons had been issued out of the Registrar's
office.

Fourteen days later i.e. on 13th May 1987 plaintiff
applied to this court for summary judgment set down for May 18th for
an order
in terms of prayers reflected in the original summons. The
application for summary judgment was supported by Hester Johanna van
der
Merwe in an affidavit wherein the deponent set out in his
averments that he is plaintiff's credit controller and that the facts
stated
in the application are within his own knowledge and further
that he is authorised to depose to them in an affidavit to the effect
that defendant is indebted to plaintiff in the sum claimed in the
summmons on grounds stated therein less an amount of

/M2000.00

-2-

M2000.00 which was paid after the summons had already
boon issued.

The deponent further avers that he verily believes that
the defendant hasn't any bona fide defence to the claim, thus the
appearance
was, according to his belief, entered solely for purposes
of delay.

In an opposing affidavit one David Ntlhasinye on behalf

of the defendant deposed that he is the Managing
Director

of the defendant and that facts related thereto are
within
his personal knowledge.

He further deposed that plaintiff is not entitled to
summary judment in so far as its claim does not fall withen the ambit
of Rule
28(1) of the High Court Rules. That rule provides that

"where the defendant has entered appearance to
defend the plaintiff may apply to court for summary judgment on each
of such claims
in the summons as. is only -

1. 
   on a liquid document

   
   

2. 
   for a liquidated amount in money

   
   

3. 
   for delivery of specified movable property,
   or

   
   

4. 
   for ejectment

   
   

together with any claim for interest and costs"

I have underlined what plaintiff appears to rely on as
forming the basis for his resort to summary judgment.

Defendant charges that the claim is neither based on a
liquid document nor is it for a liquidated amount in money. He
further avers
that because of its nature as an extra­ordinary
relief a summary judgment can only be available where a defendant has
no bona
fide defence. But, he submits, he has a bona fide defence
because he is not indebted to the plaintiff in the amount reflected
as
M8991.53 in the summons less M2000.00 as shown in the affidavit.
He argues that he was originally indebted to plaintiff in the sum
of
M8,289.85 and has attached a series of invoices marked "NM1, 2,
3 , 4 and 5" which he claims clearly show the amount
of the
original debt. Indeed the sum of the amounts reflected in the
invoices equals M8289.85.

Defendant avers that this total amount of debt has been
reduced by payment of M3000 and on this basis submits that

/he is

-3-

he is entitled to defend this action because ho has a
bona fide defence.

It was submitted on behalf of plaintiff by Mr.
Mochochoko that summons for summary judgment was issued in terms of
Rule 28 and further
that this procedure is applicable notwithstanding
entry of appearance to defend if plaintiff feels that defendant is
merely playing
for time by entering appearance to defend.

Mr. Mochochoko further stated that the claim is for a
liquidated amount namely money agreed on or capable of prompt
ascertainment.
He pointed out that the claim is for M8991.53 as shown
in the summons and referred to the M2000 which plaintiff acknowledges
as part
payment of the entire amount. He thus submitted that the
summary judgment is for the balance amounting to the difference
between
the two sums above. This amounts to M6991.53 and Mr.
Mochochoko says this amount is ascertainable.

Reacting to defendant's opposing affidavit Mr.
Mochochoko argued that defendant used one of the options open to him,
namely that he
filed an affidavit purporting to say he has a defence
but in effect it amounts to no defence to the extent that it is not
conceived
in good faith. He submitted that defendant ought to have
set out facts which if pleaded would constitute a good defence in
law. He
charged that there hasn't been any disclosure as to the
nature of the defence. He conceded that such disclosure need not be
detailed
and prolix. He pointed our that defendant's defence is not
above criticism because the defendant merely makes a denial without
disclosing
facts relied on in making such a denial. Hence the defence
is marred by the fact that no bona fide or honest disclosure was made
in it.

In reference to para 4 of the opposing affidavit it was
submitted that defendant's averment that summary judgment is an
extraordinary
procedure does not advance his case in any manner
whatsoever. It only amounted to a description of the summary
procedure. It was
accordingly submitted that this shows that the
appearance was entered solely for delay. I was referred to para 5 of
defendant's opposing
affidavit where it is maintained by plaintiff
that

/defendant

-4-

defendant admits liability. As pointed out above in
this paragraph i.e. 5 of defendant's opposing affidavit the defendant
says he
is not indebted to plaintiff in the amount reflected i.e.
M8991.53 nor has he paid only M2000.00 in an effort to reduce the
debt
owed to plaintiff.

However I was invited to take note of the fact that
although defendant has alleged payment of a certain amount he has
adduced no proof
to substantiate his allegation, No date or means of
payment has been placed before Court. No document has been placed
before court
to show the amount paid.

Mr. Mochochoko reacting to head 6 of Mr. Mphalane's
assertion that without a declaration clearly outlining the cause of
action the
court would not be in a postion to grant summary judgment
for the summons does not give the particulars of the claim which is
based
on goods sold and delivered, submitted that this is a combined
summons outlining plaintiff's cause of action. He submitted further
that plaintiff need not file a declaration.

I may at this stage point out that there is a difference
between a summons and a combined summons. According to Nathan,
Barnett and
Brink's Uniform Rules of Court combined summons means
summons with a statement of claim annexed thereto in terms of Rule
17(2) of
South Africa).

Rule 17(2) provides that

"In every case where the claim is not for a debt or
liquidated demand there shall be annexed to the summons a statement
of the
materiel facts relied upon by the plaintiff in support of his
claim, which statement shall inter alia comply with rules 18 and 20"

Rules 18 and 20 refer to

(i) rules relating to pleading generally and (ii)
declaration respectively.

On page 108 loc cit appear the following words :-

"See the comment on Rule 17 in regard to the cases
when a declaration, as distinct from a combined summons, is
necessary, and
in regard to the requirement thereof."

/The

- 5 -
The comment in question is as follows :-

"The simple summons (Form 9) is intended for us in
claims for a debt or liquidated demand, because it, was considered
that in
many of these cases the action is undefended and a
declaration is unnecessary. But in all other

cases in which a declaration would

inevitably have to be filed, it is now provided that a
combined summons is to be issued."

I have had a look at both forms 9 and 10 i.e. summons
and combined summons respectively and have observed that plaintiff's
summons
accords nearly with form 9 and definitely not with form 10..
This should suffice to dispose of plaintiff's attempts to persuade
the
court to regard his as combined summons.

Mr. Mochochoko pointed out that if after appearance has
been entered plaintiff should file a declaration then that would be a
procedural
step that would disentitle him from applying for summary
judgment. He accordingly submitted that as against the foregoing
procedure
plaintiff if he is of the view that his case is
unanswerable by defendant, would then be entitled to apply for
summary judgment.

He accordingly applied for summary judgment as prayed
i.e. M6991.53 or if the court is of the view that defendant's claim
that he
paid M3000.00 is genuine than plaintiff prays for judgment in
the sum of M5991.53 in terms of Rule 28(7) and that leave be granted
to defendant to contest the claim that is not conceded either by
plaintiff or in the ruling implicit in the order that would follow
in
the event that the court accept defendant's claim that he paid M3000
and not M2000.00 as claimed by plaintiff.

In his response Mr. Mphalane submitted that counsel for
plaintiff manifested a clear misunderstanding of the meaning of a
combined
summons. I have already mode my ruling on this point
earlier.

He further brought to the attention of the court that in
the face of the existing dispute on the amount claimed by the
plaintiff in
the original summons and that shown by defendant to be
owing in that summons coupled with the dispute as to the amount
claimed to
have been paid by

/the defendant

-6-

the defendant and part of which is vehemently denied by
plaintiff it cannot be said beyond doubt that a factor that would
require
clearing by way of declaration and the related consequences
of further and better particulars do; not exist. Should there be
doubt
on these factors then it was submitted that summary judgment
should be refused.

It was further submitted that to the extent that
plaintiff at least implicitly acknowledges payment of M2000.00 then
this is clear
indication of change of cause of action. He submitted
again that the amount claimed is not liquid or liquidated as
invisaged by
provisions of Rule 28.

Referring to Rule 33 as a possible cure to plaintiff's
papers Mr. Mphalane pointed out that an amendment is the only
possible remedy
under the rules and submitted that an affidavit is
not enough for the purpose. He further pointed out that the rate of
interest
at 12% is disputed and submitted that 11% is the rate
followed in normal practice. He queried the 12% interest on the
grounds that
it was not based on any written agreement between the
parties. He accordingly prayed for dismissal of the summary judgment
and in
the same vein for leave to be granted to defendant to defend
the action and have proceedings stayed in terms of Rule 28(9).

In his final reply Mr. Mochochoko conceded that the

interest rate is not settled for even at times without
proof of prior agreement this Court has allowed not only 12% but
upwards of
17% interest.

He reiterated that the summons discloses that the amount
claimed is liquid and is ascertainable by simple arithmetical
calculations.
The figure is clear hence no form of evidence can be
required other than that the amount is due and payable. He submitted
that the
question of amendment of the summons is uncalled for. He
accordingly pointed out that if defendant makes payment of part of
the debt,
plaintiff is entitled to come to court for the balance
outstanding on the capital debt. He prayed that even if the M3000 was
paid
indeed there can be no sincere denial that in that event
M5289.85 remains owing assuming without

/conceding

-7-

conceding that the capital debt was M8289.85 as claimed
by defendant. In their own admission therefore the defendants owe
M5289.85
it was submitted.

Reference to South African Authorities indicates that

"a plaintiff cannot avail himself on the procedure
under (the then) Rule 22(1) of the Rules of the Cape Supreme Court to
obtain
summary judgment on a part of his claim viz. in respect of
something less than his whole cause of action and less than the full
amount
claimed, which part he alleges to be liquidated."

Further in Art Printing Works Ltd vs Citizen (Private)
Ltd 1957(2) SA. 95 plaintiff had in terms of order 43 of the Rules of
Court
(S.R.) applied for summary judgment on a summons issued in
terms of Order 3, Rule 6, claiming (1) payment of an amount of
£3661-16
- 4d

"being due and owing by defendant to plaintiff in
respect of printing done by plaintiff for and on behalf of defendant,
at the
usual or customary rates and stationary supplied by plaintiff
to defendant at defendant's special instance and request during the
period June to September, 1956", (2)

interest a tempore morae (3) costs of suit. In that
case defendant, in limine objected on the ground, inter alie that the
summons
had not been "endorsed with the particular: of claim"
as required by order 3, Rule 6. It was held that as the summons
did
not contain the averment of the "nature, extent and the grounds
of the cause of action" the objection should be upheld
and
further that the defendant was not bound to apply for particulars.

On page 94 of the Uniform Rules supra a comment under
Rule 17 is to the effect that under sub rules 1 and 2 the Rule makes
provision
for the issue either of a summons or of a "combined
summons" i.e. a combination of summons and declaration. The
latter
form is in use in the Magistrate's Court."

In Abdurahman's supra at 297 the following words appear:

"He then proceeds to show that there is good reason
why the plaintiff should not be allowed to split up his action. The
object
of the order, he says, is to avoid delay, and if it is once

/admitted

-8-

admitted that there must be a trial, even if only on
some of the claims there is no saving of time. Moreover, the adoption
of such
a course may result in costs being increased."

I need not over-emphasise that among many concessions
made by Mr. Mochochoko is included the plea that judgment be entered
for plaintiff
in respect of what is admitted by defendant and that
the residue of the claim be referred to trial. Although it can be
argued that
this submission is in keeping with provisions of our Rule
28(7) (b) (ii) laying down that

"If on the hearing of the application for summary
judgment it appears that a defendant is entitled to defend as to part
of the
claim but not to the whole of such claim the court may. give
leave to defend to defandent as to part of the claim and enter
judgment
against him as to the balance of the claim, unless he shall
have paid such balance ......."

it is clear that this procedure has no regard to the
important aspect raised above as to the necessity of saving the time
and avoiding
of increase in costs occasioned by postponement for
purposes of enabling defendant to defend part of the claim disputed.
But it is
our rule. See also Hugo Franco Pty Ltd vs Gordon 1956(4)
SA. 482 where as in Abdurahman's case supra the summary judgment was
refused.
Quoting with approval the following words to wit the
summary judgment Rule

"embodies an extraordinary remedy and a litigant
who wishes to avail himself of the procedure

-therein described must bring himself squarely within
the ambit of the Rule"

Murray C.J. said on page 484

"......the plaintiff was refused summary judgment

as to the liquidated portion of the whole of his claim,
despite his willingness to restrict his application to that portion."

I have already referred to our Rule 28(7) (b) (ii) on
the point in issue. It is on all fours with Rule 32 (6)(b)(ii) of
the Uniform
Rules of Court applying to South African Courts.

In none of the authorities cited in my judgment has
there been specific reference to this particular Rule. Regard being
had to the
fact that the edition of the Uniform

/Rules

-9-

Rules I have consulted is of comparatively more recent .
origin i.e. 1965 as opposed to the authorities which cover cases
which occurred
in the 1950's I would take it then that some of the
matters covered in the authorities cited no longer hold or as stated
in Art Printing
Works Ltd. supra at 97.

"The question whether this requirement has been
fulfilled must be answered in reference to the circumstances of each
case."

Regard has also to be paid to the fact that our Rules on
the particular subject of summary judgment application do not provide
the
particular forms of summons and contents thereof and do not
correspond with forms 9 and 10 appearing in the Uniform Rules of
Court.
It thus becomes a matter for every drawer of summons to
employ boot stap methods to make his summons as close as possible to
what
may be reasonably acceptable in his attempt to move an
application for summary judgment.

While I do appreciate the value of the South African
authorities referred to above to the extent that they indicate that
summary judgment
should he refused once only a portion of the claim
is admitted for otherwise the result becomes wasteful both from the
point of view
of costs in that they become increased and of time in
that delay is not avoided, I however consider that our Rule 28 (7)(b)
(ii)
is based on sound principles viz. as in all pleadings matters
which are admitted bring pleadings. to conclusion forthwith while
those
on which there are disputes are the ones regarding which there
need be adduced further evidence to enable the court to make a final
decision thereon.

Relying therefore on Rule 28(7) (b) (ii) binding on our
courts and notwithstanding highly persuassive South African
authorities to
the contrary I uphold plaintiff's application for
summary judgment in the sum of M5289.85 admitted by defendant though
disputed by
plaintiff to extent that it falls short of M1000 of its.
claim as revised in its deponent's affidavit, plus interest at the
rate
of 11% and costs on party and party basis. I also 'order

/that

-10-

that defendant be given leave to defend the claim
on,
which there is a dispute.

ACTING JUDGE.

7th September, 1987.

For Plaintiff : Mr. Mochochoko
For Defendant :
Mr. Mphalane.