IN THE HIGH COURT OF LESOTHO In the matter
LESOTHO BANK Plaintiff
JOHANNES MAISA MATSABA t/a FATHER & SON
Delivered by the Hon. Mr Justice M.L. Lehohla on the
12th day of February, 2001
This is an application moved for summary Judgment by the
plaintiff which had issued summons against the defendant wherein it
three Claims set out below:
Claim 1 :
payment of the sum of M1 35 265-93
payment of interest on the above sum at the rate of
20.5% per annum as from 12th November, 1996
costs of suit
further and/or alternative relief.
payment of the sum of M3 526 072-53
payment of interest on above amount at the rate of
20,5% per annum as from 25th April 1996
further and/or alternative relief
payment of the sum of Ml 374 839-67
payment of interest on the above sum at the rate of
20.5% per annum as from 22nd April, 1996
Claim 1 arose, according to particulars of claim, out of
an oral agreement entered into at Leribe between the parties, and at
special instance and request of the defendant whereby the
plaintiff advanced monies to the defendant from time to time on
account No 0240307505.
Claim 2 arose from a written agreement entered into
between the parties in terms of a copy annexed to the proceedings
Claim 3 arose from a written agreement marked Annexure
"B". It seems convenient at this stage of the Judgment to
that the Rule under consideration is Rule 28(2) reading :
"The plaintiff, who so applies, [for summary
Judgment as set out in sub- Rule 1] shall deliver notice accompanied
by an affidavit
verifying the cause of action and the amount, if any
claimed and such affidavit must state -
that in the opinion of the deponent the defendant has
no bona fide defence to the action and
that entry of appearance has been entered merely for
purpose of delay".
At the start of oral submissions Mr Mpobole for the
plaintiff intimated that the plaintiff was no longer pursuing Claim 1
of the summary Judgment.
I must hasten to express the Court's regrets that
because of its busy schedule the Court was unable to find time within
which to dispose
timeously of this application in respect of which it
heard concluding arguments towards the end of 1999.
In his well set out written submissions Mr Mpobole
highlighted the fact that in order to raise a successful opposition
in a summary
Judgment the defendant must show (1) bona fide defence;
(2) prospects of success in the trial.
Learned Counsel indicated that in order to fulfil the
two requirements set out
4 in (1) and (2) above, the defendant must make full
disclosure of its defence.
To show the defendant's failure in this respect the
plaintiff draws the Court's attention to Preamble 2 at page 2 of
reading as follows :
2. Preamble - whereas :
the Borrower has requested the Bank to convert his
overdraft under account numbers
0240302238,0240303046,0240701619,0240305099and 0261003163 into a
The Bank has agreed to convert the overdraft into a
The parties have recorded their agreement in respect of
the aforesaid, the terms of which are set out hereunder.
Mr Mpobole laid stress on the fact that the defendant
doesn't deny having signed the agreement.
He demurred at the fact that on the contrary the
defendant, through its deponent Maisa Matsaba says he entered into
the plaintiff but says he has not been given the
Learned Counsel urged that because of this contradiction
the plaintiffs case
5 for summary Judgment has been strengthened that the
defendant has failed thereby to disclose a defence.
Reacting to the onslaught Mr Phafane for the defendant,
having regretted his failure to submit heads of arguments pleaded
Court to be charry of granting a summary Judgment merely for
His main reason for this submission is that a summary
Judgment is a very drastic remedy. What is even more drastic is the
a summary Judgment entails in essence that the defendant be
condemned (hanged) before being heard. To this extent it is a
of the audi alterem partem rule.
Learned Counsel pleaded that because the audi alterem
Partem rule is so entrenched in our law the Court should be very
grant this application. The learned Counsel in a fervent
attempt to persuade the Court against granting the application
it to the fact that the rule giving the Court a discretion
to act in this type of application has been interpreted in such a way
that it is in very rare cases that applications of this nature have
6Mr Phafane demurred at the fact that plaintiffs
counsel relied entirely on Annexures "A" and "B".
He raised scruples
at the insinuation by the plaintiff in turn
enjoying its counsel's full support that in order to have answered
adequately the defendant
should have delved into every detail and
only then would he have made a full disclosure.
Learned counsel submitted that this is not the correct
interpretation of the relevant rule on summary judgment.
I agree with Mr Phafane's submission that in an
application for summary Judgment there is no need for the defendant
to be as detailed
and specific as he would otherwise be required to
be when filing a plea.
It is important to note that even in filing a plea the
defendant is not required to go into fine details because a plea is
which otherwise is constituted by an affidavit in motion
To this extent it follows that in summary Judgements the
defendant need not give a reply that strictly would be required when
7 The Court in this connection is required therefore
to be quite liberal when dealing with applications of this nature :
being that this is a very drastic and extraordinary remedy
that is at variance with the fundamental principle of audi alterem
See Fashion Centre & Anor vs Jasat 1960(3) SA p 221 at
It is stimulating to observe that this authority is
referred to in the invaluable works of I.Isaacs styled Becks' Theory
of Pleading in Civil Actions p 329 at 330 where the
following phrase is quoted i.e.
" It seems that there is no need in opposing
affidavits to be as specific as one is in a plea. It is sufficient if
a bona fide defence
It seems that learned Counsel for the defendant was
astute enough to know that doubts would most likely arise whether the
is not acting bona fide and that entertainment of such
doubts short of clear evidence that he doesn't have a good defence
redound to the defendant's benefit at this stage of the
I subscribe to the view that it is often tempting to
regard full disclosure required in motion proceedings as meaning the
as the disclosure required in the summary trials where no
such full disclosure in the literal sense of the word
8 "full" is required. Indeed the distinction
at times appears to be very subtle and as such reproved in law. But
a distinction which should not be confused in the two sets
of circumstances set out above.
It would be fruitful to have regard to Breitenbach vs
Fiat SA(Pty) 1976(2) SA p 226 at 228 A-E where the court dealt with
meaning of the word "fully" as it appears in the
Rule relating to summary Judgment. It is urged that the word "fully"
be not given literal interpretation.
In Shepstone vs Shepstone 1974(2) SA 462 at 463 it
appears the authorities are in harmonious step with one another for
in the words
of Colman J in Breitenbach above it is stated in
paragraph A to E that
"It must be accepted that the sub-rule was not
intended to demand the impossible. It cannot, therefore, be given its
meaning when it requires the defendant to satisfy the Court
of the bona fides of his defence. It will suffice, it seems to me, if
the defendant swears to a defence, valid in law, in a manner which is
not inherently and seriously unconvincing.
Another provision of the sub-rule which causes
difficulty is the requirement that in the defendant's affidavit the
nature and the
grounds of his defence, and the material facts relied
upon therefor, are to be disclosed 'fully'. A literal reading of that
would impose upon a defendant a duty of setting out in
his affidavit the full details of
all the evidence which he proposes to rely upon in
resisting the plaintiffs claim at the trial. It is inconceivable,
the draftsman of the Rule intended to place that burden
upon a defendant.
I respectfully agree with the suggestion by Miller J in
Shepstone vs Shepstone 1974(2) SA 462 at pp 466-467, that the word
should not be given its literal meaning in Rule 32(3), and
that more is called for than this : that the statement of material
be sufficiently full to persuade the Court that what the
defendant has alleged, if it is proved at the trial, will constitute
to the plaintiffs claim. What I would add, however, is that
if the defence is averred in a manner which appears in all
to be needlessly bald, vague or sketchy, that will
constitute material for the Court to consider in relation to the
bona fides ".
I am in respectful agreement with the above outline of
the position in law regarding the matter on the tapis.
I am of the view that the defendant has raised a bona
fide defence which is on all fours with the line of authority that
has to raise a bona fide defence which if proved would
be good enough. That in my view is the test; and not that the
already guaranteed victory at trial. In fact in Jasat
above Harcourt J. A. at p 222 E cites with approval De Villiers
in Lombard vs van der Westhuizen 1953(4) SA 84 (C) that
a Judicial officer is neither obliged, "nor indeed entitled, to
or to decide upon the probabilities of success"
(Emphasis supplied by me).
10 While I do endorse the view that the discretion
conferred on the Court should not be exercised capriciously the
dictum in Gruhn vs M. Pupkewitz & Sons
(Pty)Ltd 1973(3) SA 49 AD is very instructive. It indicates that the
in sub-rule (5) "confers a discretion on
the Court," so that even if the defendant's affidavit does not
measure fully up
to the requirements of sub-rule 3(b) of Rule 32, the
Court may nevertheless refuse to grant summary Judgment if it thinks
I am unable to resist reiterating Harcourt J.A.'s words
with respectful agreement at p 222 that:
" To keep it in perspective, however, one must
remember that summary judgment is a drastic and extraordinary
remedy involving the negation of the fundamental principle audi
and resulting in final judgment which is normally
only granted in clear cases, and not where there is any doubt, in
event leave to defend ought to be given".
Miller J above has formulated an approach which bears
imitation. This appears at p 467 E-H of the learned Judge's Judgment
"The Court will not be disposed to grant summary
Judgment where, giving due consideration to the information before
it, it is
11 that the plaintiff has an unanswerable case".
The learned Judge further says :
" a defendant may successfully resist summary
judgment where his affidavit shows that there is a reasonable
the defence he advances may succeed on trial".
For the above reasons summary Judgment is refused. The
defendant is granted an opportunity to defend his case. The papers on
shall stand as pleadings. Costs are awarded to the defendant.
12th February, 2001
For Plaintiff: Mr Mpobole For Defendant: Mr Phafane
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