CIV/T/503/93

IN THE HIGH COURT OF LESOTHO
In the
matter between:

LOTI BRICK (PTY) LTD Applicant

AND

THABISO MPHOFU 1st Respondent

THABISO MLUNGWANE 2nd Respondent
(EDITOR OF THE
MIRROR)

EPIC PRINTERS 3rd Respondent

J U D G M E N T

Delivered by the Honourable the Chief Justice Mr.
Justice J.L. Kheola on the 17th day of October. 1995

This is an application for an order, in the following
terms:

1. That a Rule Nisi returnable on a date and time to
be determined by. the above Honourable Court be issued, calling upon
Plaintiff
to show cause (if any) why an order should not be granted
in the following terms:

(a) That judgment and warrant of
execution in
CIV/T/503/93 shall

not be stayed pending the outcome of the Rescission
Order prayed for herein

(b) That the judgment delivered by
the Honourable Mr
Justice J.L.
Kheola (as he then was) on the

14th March 1994, be rescinded and

set
aside;

3. 
   That the Respondents herein be
   ordered to pay costs
   in the event
   of opposition.

   
   

4. 
   That the Applicant shall not be
   granted such
   further and/or
   alternative relief as the court

   
   

may deem fit.

In his founding affidavit Moruti Mphatsoe, the Managing

'IDirector
of the applicant, deposes that failure to defend this matter was
neither wilful nor an admission of liability in any way.
When a
letter of demand was received a reply was written to the respondent's
attorneys to attempt a settlement of the matter out
of Court. It was
stated that the damages were excessive and a tabulation of how the
amounts were made up would be required. (A copy
of that letter is
annexed to the founding affidavit).

There was no response to that letter until December,.
1993 when the summons was served upon the respondent. At that time
the attorneys
of the respondent had just opened an extension office
at Metropolitan Insurance building and the person who delivered the
summons
delivered it to that office, instead of to the office
intended which is at Lesotho Bank Centre.

He avers that in January, 1994 it came to his knowledge
that the case against the respondent was somehow proceeding and had
not been
properly defended. He reported the matter to his attorneys
of record who again investigated the matter, but unfortunately they
could
not find the file in the registry of the High Court. It was
said to be missing. It subsequently turned out that at that time the
matter was awaiting judgment. On the 14th March, 1994 the attorney
obtained a copy of judgment.

At the time of the events leading to this publication
there

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was a lot of public criticism of; and even
Parliament

consistently made pronouncements condemning the unfair
business

practices of certain companies, in particular companies
formed by Chinese nationals who take unfair advantage of the labour
situation,
and are also in some respects unfair businessmen.

The Managing Director avers that during that same period
it transpired, and the applicant had reasonable grounds to believe
that one
of such companies called Unibrick had attempted in an
underhand manner to obtain some manufacturing materials from the

applicant which is its competitor and by use of that
obtain the

trade secrets as well as some insight into the operation
of the

applicant in order to gain an unfair advantage.

He avers that the allegations were not defamatory of the
respondent, and the words said were not only in the public interest
but were
also substantially true of the practice that Unibrick as
well as the respondent had engaged in.

The second affidavit on behalf of the applicant is made
by one Mike 'Mabathoana who is the Assistant Technical Manager of the
applicant.
On the day alleged the respondent arrived in the morning
at the premises of the applicant and asked for some top soil to make
a flower-bed
at his home. He indicated that he wanted the top soil
from a heap of clay used in the manufacturing of bricks.

The deponent avers that he knew that at that time
Unibrick

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had just been established and there was a shortage of
clay for making bricks. He was further surprised by the fact that the
respondent
required the whole truck load which is more than enough
for a domestic flower-bed, and would be enough to make 3,000 or more
bricks
which is the standard used to test the suitability of the clay
and its quality. However, despite all possible explanations the
respondent
insisted. He was promised that he would have the soil in
the afternoon of the same day. The deponent avers that he was
suspicious
of his (respondent's) intentions, and planned to trap him
and trace his movements because he knew that respondent was involved
with
Unibrick.

In his founding affidavit Barbanas Gugushe avers that he
was ordered by Mr. 'Mabathoana to follow the respondent's truck when
it left
the applicant's premises loaded with top soil. The truck
proceeded directly to Unibrick with its load and passed Borokhoaneng
area
where respondent lives. It entered the premises of Unibrick. The
deponent avers that he then approached and made it known to the
respondent and to the Chinese who were welcoming him that he had come
to see the respondent. He (respondent) refused to see him and
ordered
the Chicness not to allow him into their premises, which was done.
The action by the respondent confirmed to him that he
(respondent)
was in fact going to off-load the soil at Unibrick.

Mr. Lebobang Aaron Molete is an attorney of this Court
and an attorney of record for the applicant. He confirmed what
happened about
the delivery of summons. He alleges that it was

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only in December, 1993 when it was discovered that the
summons had not reached him." Thereafter attempts were made to
find the
file but it could not be found. It was only in February,
1994 that it transpired that the file was with the judge as only
judgment
was pending:

In his answering affidavit the respondent admits that he
was given the top soil in question by the applicant. He transported
it by
his truck. He passed his home with the load of the soil and
drove straight to the premises of Unibrick for the purpose of
collecting
his cheque. He did so because it. was late in the
afternoon and decided to collect his cheque before closing time.

In an application for rescission of judgment the
applicant

must show three things, namely -

(a) The applicant must give a

reasonable explanation of his default?

(b) The application must be bona fide

and not made with the intention of merely delaying the
plaintiff's claim,

(c) the applicant must show that he
has a bona fide
defence to the
plaintiff's claim, it being
sufficient if
he sets out
averments which, if established
at the trial,
would entitle him
to the relief asked for, he need
not deal
with the merits of the"
case or produce evidence that
the
probabilities are actually in his
favour. (See Grant v.
Plumbers
(Pty) Ltd. 1949 (2) S.A. 470)

In the present case the applicant has shown that it
never

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filed a notice of intention to defend the action because
the summons was duly served upon the the applicant. Thereafter it was
delivered
to its attorneys. Unfortunately it never reached the
attorney of record because it was taken to the wrong office.

It seems to me that that explanation is reasonable and
there was no intention on the part of the applicant to play delaying

tactics simply to delay the respondent's claim.

Regarding a bona fide defence the applicant has shown
that the words complained of were not only true but were in the
public interest.
In its founding affidavit the applicant shows that
the respondent, by false pretences, stole the soil for making bricks
and took
it to Unibrick which produces bricks. After loading the soil
he drove his truck straight to the premises of Unibrick and passed
near
his home without off-loading the soil for the alleged
flower-bed.

If at the trial the applicant can establish the above
averments then it will have a good defence. At the moment it need not
deal with
the merits and produce evidence that the probabilities are
actually in its favour.

The respondent's story that he hurried to Unibrick's
premises with the load of soil because he wanted to collect his
cheque before
closing time is something that can be tested in a
trial, through proper cross-examination.

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In the result the application is granted as prayed in
terms of prayers (a) and (b). The applicant must pay the wasted cost
incurred
by the respondent in obtaining the judgment and the
respondent's costs in opposing the present application.

J.L. KHEOLA CHIEF JUSTICE

17TH OCTOBER, 1995.

For Applicant - Mr. Molete For Respondent - Mr.
Khauoe