IN THE HIGH COURT OF LESOTHO
In the matter between:-
NEDBANK (LESOTHO) LIMITED PLAINTIFF
PHEELLO NTHAKENG SELINYANE DEFENDANT
Date of Hearing : 28 April 2011
Date of Judgment : 28 April 2011
CORAM : MR ACTING JUSTICE J.D. LYONS
Mr.Mpaka for Plaintiff
No appearance for Defendant
LYONS J. (AGT)
This is an application for summary judgment.
I am satisfied that the attorney of record and the advocate for Selinyane (the Defendant) has been properly served with notice of this hearing dte and is aware of it.
I have before me the following:-
(1)The summons and Declaration filed 17/1/2011 (exhibited to the summons is the Power of Attorney and documents of authority of Mr. G. Gerhard.)
(2)The applicqtion for summary judgment filed 10/0/2011.
(3)The supporting affidavit of Mr. Gerhard.
(4)The affidavit of the Defendant filed 14/2/2011
(5)The Defendant’s plea filed 14/2/2011
The plaintiff bank pleads that it advanced a Hirepurchase loan to the Defendant to purchase a motor vehicle. It pleads that the Defendant has defaulted in the loan repayments as a consequence of which the whole loan has fallen due.
I am satisfied that the plaintiff has make out a proper claim. Mr. Gerhards’ affidavit swears to the accuracy of the declaration. The Plaintiff claim M71,135.31 as due and owing, plus interest of 14.5 per annum until payment plus its costs.
Being so satisfied, I turn to the Defendant’s material. In an application for summary judgment, it is only in hopeless cases and where the Defendant can be said to be wasting time and simply delaying the inevictable, that a Defendant should be removed from the judgment seat and judgment ordered against him. I short, this measure is used to prevent Defendants with no bona fide defence from abusing the system this is such a case.
In his affidavit and his pleas, the Defendant raises two preliminary points.
The first point is the lack of authority of Mr. Gerhard as Head of Credit for the plaintiff, to bring this action. There is no merit in this point. The documents of authority plainly show that on 12 September 2006 the Board of Directors of the Plaintiff resolved that the Head of Credit has the authority to instruct lawyers and represent the plaintiff bank in legal proceedings. In the overall circumstances as evidenced before the court I am satisfied that Mr. Gerhard has the proper authority as per the definitive test laid down by the Court of Appeal in NUL vs Thabane & Others C of A 3/2008.
The second point raised as a preliminary point and repeated in his plea and affidavit is novel to say the least and is indicative of the Defendant’s complete lack of bona-fides. Pause to remain that his affidavit’s hardly that. Affidavits are tobe in the deponents’ own words. This affidavit (if I can call it that) is more like a pleading. That pleading from which the “affidavit” is obviously drawn is the Defendants’ plea. That, too, is
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