IN THE HIGH COURT OF LESOTHO In the matter
METRO CASH & CARRY t/a PLAINTIFF METCASH
ANDFLIGHT ONE HOTEL DEFENDANT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 19th day of October, 1992.
For the Plaintiff : Mr. S.A. Redelinghuys For the
Defendant : Mr. T. Mahlakeng
JUDGMENT This is an application for summary
The plaintiff company's claim contained in the summons
reads as follows:
"(a) Payment for the sum of M21,417-90 in respect
of goods sold and delivered by the Plaintiff to the Defendant, at the
special instance and request pursuant to an agreement
between the parties.
Interest thereon at the rate of 18.5% perannum
calculated from February and March1990 to date of payment and
Costs of Suit.
Further or alternative relief."
The plaintiff's General Manager has sworn the usual
affidavit, in which he deposes that the defendant is indebted to the
in the amounts claimed in the Summons, and that he verily
believes that the Defendant has no bona fide defence to the action.
The Manager of the defendant firm has sworn an opposing
affidavit in which he deposes inter alia:
"4.1. ... I aver that the Defendant was but is no
more indebted to the Plaintiff in the amount claimed in the summons
or at all....
4.2. Information gathered from the books and records of
the Defendant shows that the Plaintiff was duly paid what was due to
have in my possession receipts showing that the Defendant
effected periodic payment until the Plaintiff was paid in full. I
hereunto copies of receipts evidencing payments made to the
Plaintiff collectively marked "A". I notice that there is a
missing receipt in the sum of M400.00. I am making further attempts
to trace it.
5. .... I state that the Defendant has a bona fide
defence to the claim as reflected in the summons. The Plaintiff was
duly paid the
amount owed by the Defendant...."
Annexed to the Manager's affidavit are photostatic
copies of four receipts issued by the plaintiff company to the
defendant firm thus:
Date Legend Amount
19/10/1990 Part Payment of Unpaid 500.00
14/11/1990 Part Payment 500.00
Mr. Redelinghuys for the plaintiff submits that the
cause of action arose in February and March 1990 as this can be
paragraph (b) of the statement of claim in the summons.
Mr. Mahlakeng in turn submits that the plaintiff has not definitively
when the cause of action arose and that no inferences can be
drawn in the matter. I agree. The plaintiff has not stated when the
goods were sold and delivered and when payment therefor became
payable. Even the date when interest became payable is not specified.
Even if it were specified, it would not necessarily indicate when the
cause of action arose -the parties might well have agreed that
interest would become payable e.g., 30, or 60, or 90 days after the
date of payment arose.
Mr. Redelinghuys points to the affidavit in support,
which states that the debtor is indebted in the amounts claimed in
and submits that therefore the deponent had already taken
any payments already made by the defendant. I appreciate
that under rule 28(4), the plaintiff may not adduce any evidence in
Mr. Redelinghuys is therefore once again asking the Court
to draw an inference in the matter and as Mr. Mahlakeng rightly
the plaintiff's claim must be so specific, grounded by the
supporting affidavit, as to obviate any need for inference. On the
hand, the defendant's Manager has sworn, in effect, that the
plaintiff has failed to take account of the payments made by him,
clearly raises a triable issue.
Mr. Redelinghuys submits that one receipt is expressed
to be in "Part Payment Of Unpaid Cheque", and yet the
no details of any dishonoured cheque. I cannot see
that that effects the issue; the receipt nonetheless constitutes a
payment of M500, and the same can be said of the fourth
When all is said and done, the plaintiff's General
Manager deposes that the defendant firm is indebted in the amounts
the summons. The defendant's Manager denies this,
deposing that "the Defendant was, but is no more indebted to the
in the amount claimed in the summons or at all ... the
Plaintiff was duly paid what was due to
it", thereafter claiming "periodic payment
until the Plaintiff was paid in full", annexing receipts which
fall but M406.37 short of the full amount, in respect of
which the deponent avers that he is endeavouring to trace a
That, as I see it, is a full defence, adduced by
way of affidavit. At this stage there is no gainsaying it. It clearly
raises a triable
The application for summary judgment is therefore
dismissed. I grant the defendant unconditional leave to defend and I
costs be in the cause.
at Maseru This 19th Day of September, 1992.
B.P. CULLINAN CHIEF JUSTICE
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