IN THE HIGH COURT OF LESOTHO
(Commercial Division)
CCT/43/2010
In the matter between:-
RENTOKIL INITIAL (PTY)LTD PLAINTIFF
And
MKM BURIAL SOCIETRY DEFENDANT
Date of Hearing : 18 and 23 August, 2011
Date of Judgment : 23 August, 2011
CORAM : MR ACTING JUSTICE J.D. LYONS
Counsel:
Ms Malope for Plaintiff
Mr. Mohanoe for Defendant
JUDGMENT
LYONS J. (AGT)
This is a summary judgment application. The plaintiff claims M33,198.98 for services provided.
The defendant admits a contractual relationship existed but says it has paid at least a part of which is claimed. I shall return to this later.
As a preliminary point, the defendant argued that the appointment of attorney required by Rule 15 (1) was not filed.
The plaintiff overcome this by filing the appropriate appointment of attorney, albeit late in the day. (see Moleybane v Boliba Co-operative Society 2008 Court of Appeal).
That point desposed of, I turn to the claim and the purported defence of the defendant.
In response to the summary judgment application, the deponent Lerato Liboti (for the defendant) swears: ‘The defendant/respondnent herein denies being indebted to the applicant/plaintiff in the sum claimed therein. The defendant/respondent was indebted to the plaintiff in the sum of twenty four thousand (24 000.00) for services rendered. That amount was duly paid and collected by an employee to the plaintiff whose supporting affidavit is hereunto attached’.
Having read this, and the affidavit of the plaintiff’s deponent, Ms Stevens, I find the plaintiff has satisfactorally proved its claim.
I am not satisfied that the defendant has any defence as I was not persuaded that the defendant had (as it states) paid anything to the plaintiff in payment (or reduction) of the amount claimed. The defendant admits an indebitness existed. It then asserts that part of it at least has been paid.
On noticing that there was no supporting affidavit (as deposed), the court gave the defendant’s counsel a few days to check this out. I note Mr. Mohanoe was not the original counsel and he came into this late in the day.
On the return to court, Mr. Mohanoe informed that his instructions were that the employee could not now be located so no affidavit was in fact prepared. He further told the court that his instructions were that any receipt for M24,000 could not be presented. He was, however, instructed to present a receipt dated 30/07/2008 for R10,000.00 cash. He had no further instructions. He, thus, was not able to say if the person noted on the said receipt was the ‘employee’ who supposedly received the M24,000 as deposed.
Ms. Malope respectfully submitted that in the circumstances the defendant’s deponent should be entirely disbelieved. Her submissions was that the affidavit was an untruthful time-wasting exercise.
I entirely agree. The defendant’s purported defence has been found out and discredited. The deponent swore as to its truth, but when put to the test was found out.
In all the circumstances, I allow the application for summary judgment.
I order judgment for M33,198.98 for the plaintiff.
I allow interest at 18.5% per annum from date of filing of the summons (29 April 2011) until payment.
I allow costs to the plaintiff to be taxed if not agreed.
J.D. LYONS
JUDGE (AGT
