HIGH COURT OF LESOTHO
MARIANNA MPHO MOLEKA APPLICANT
SCOTT MCALPINE & SEYMOUR 1st RESPONDENT
HARLEY NO OF KPMG/HARLEY & MORRIS
VENTURE, LIQUIDATORS OF LESOTHO
SHERIFF (T.M. Monyako) 2nd RESPONDENT
SHERIFF (Makara) 3rd RESPONDENT
by the Honourable Mr Justice T. Nomngcongo on the 13th Day of April
an application for stay of execution and rescission of judgment
granted in default against the applicant/defendant on the
2004. It is not clear exactly when, but from applicants' affidavit,
at least some four years prior to the date of judgment.
claims that upon receiving the summons she detailed her son to start
negotiations with the respondents with a view to avoiding
and as she well knew that she had liquidated her indebtedness with
the respondents. She bona fide believed that while
were proceeding she did not have to file any opposing papers. It
would appear that the applicant herself did at
some point take part
in these negotiations. She goes on to say that she was misled by the
attorneys for the 1st respondent that
the matter would be amicably
settled only to find that applicant had taken judgment against her.
negotiations did take place between applicant and the respondents
attorneys is not denied. Anthony Scott Mcalphine who describes
himself as a chartered accountant admits that applicant's son did
enter into negotiations with as he put it "our representatives".
In any case his
is clearly hearsay because he is by his own description a chartered
accountant and not an attorney. I don't see why an
attorney could not
file an affidavit as did Karen Kruger who describes herself as a
consultant for Harley & Morris. She in
her turn says that she did
negotiate with applicant's son. Unfortunately for her, evidence in
this regard is irrelevant as she
deposes to events after judgment had
been taken against applicant.
important point that is made by the applicant is that the original
indebtedness to the respondents was in the sum of R42,000.
was however obtained in the sum of M212,413,36, more than five times
the principal debt. In answer to that all the respondent
has to say
is " I have been informed that the fact that applicant queries
the amount does not auger as a bona fide defence".
is trite law that interest cannot exceed the principal amount owed.
More than five times the principal amount owed is clearly
cannot get away from it with the extremely evasive answer to a fact
that applicant pointedly makes in her founding affidavit.
of court are very clear in this regard. Rule 20 (5) provides as
"When in any pleading a party denies an allegation of fact in
the previous pleading of the opposite party he shall not do
evasively but shall answer issuably and to the point".
be a palpable injustice for the respondent to obtain judgment in a
sum which by far he is not entitled to. It is this that
leads me to
exercise my discretion in favour of the applicant. Application for
rescission is granted with costs.
Applicant : Mr Sekonyela
Respondent : Ms Qhobela
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