CIV/APN/236/88
IN THE HIGH COURT OF LESOTHO
In the matter between:
P.P. MAKHOZA T/A HOTEL MALUNGA Applicant
and
LESOTHO LIQUOR DISTRIBUTORS (PTY) LIMITED Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L- Kheola on the 23rd day of August, 1988
On the 10th June, 1988 Lehohla, J. granted a provisional sentence in favour of the present respondent in CIV/T/285/88. The applicant is now applying for an order in the following terms:
Dispensing with the forms and service provided for in the Rules of the above Honourable Court and ordering that this matter be treated as urgent;
Granting condonation for any time limits that may be exceeded;
C tescissicn, or, alternatively setting aside of the Provisional Sentence Judgment given by the above Honourable Court in Civil Case number CIV/T/285/88 on the 10th June, 1988 on the grounds that:-
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the application was made ex-parte, the applicant had a valid Defence and made no wilful default;
judgment was fraudulently obtained;
judgment was erroneously granted as the cheques on which the claim was based were not handed in, service of Summons was short and Summons was irregular;
Setting aside the Writ issued out of the above honours-,ble Court on 13th June, 1988 and granting a Stay of Execution pending the final outcome of (C) above and, which failing, pending the final outcome of an appeal against the Judgment after the hearing of such applications for leave or condonation as may be required.
Condoning failure to timeously note an appeal, and granting leave to Applicant to note an appeal within six (6) weeks of final
determination of prayer (C) above.
Alternatively, granting leave to enter principal case against giving of Security only.
Granting Applicant the costs of this application on the scale as between Attorney and Client."
The provisional sentence was based on five (5) cheques drawn by the applicant in favour of the respondent and which wore all dishonoured
by the bank. The signatures on all the cheques are admitted by the applicant as his and the defences raised in the affidavit are that the provisional sentence summons was fatally defective in a number of ways, that the judgment was fraudulently obtained, that there was short service and that the applicant has a bona fide defence.
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I propose to deal with the alleged fatal defects first because if they are in fact fatal, there will be no need for me to deal with the question whether or not the applicant has a_bona fide defence.
Rule 45 (1) (a) provides that the court may, in addition to any other powers it may have mero motu or upon application of any party affected, rescind or vary an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby. It was submitted during arguments that the application is brought under the above Rule or the common law.
The first defect alleged against the summons is that the respondent has not alleged that it is the lawful holder of the cheques It was submitted that this is a requirement and reference was made to Rule 9 (1) read with Form K which is a specimen of a provisional sentence summons.
It seems to me that the so-called defect is not a defect at all inasmuch as the name of the respondent appears on the copies of the cheques attached to the summons. In the case of Marcuson v. Botha, 1913 T.P.D. 650 it was held that where the promissory note itself shews who the holder is, it would, of course, be unnecessary for the summons to allege who is the holder, because the note is attached to and forms part of the summons.
The second defect allegced is that the alterations of the dates on the summons are not signed by the Registrar The dates were initiall April and were changed to June., The Registrar only signed in April but did not initial the alterations. In support of this submission
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reference was made to The Civil Practice of the Superior Courts in South Africa, 3rd edition, at page 198 where the learned authors state that once a summons has been signed by the proper officer it cannot be altered without his consent or without the leave of the court on a proper application for amendment. (Harris v. Do Meillon 1959 (4) S.A. 773 A.D.).
Mr. Addy, respondent's attorney, submitted that the Registrar consented to the alterations to the dates on the summons. I am of the view that the Registrar ought to have shown his consent by initialling the alterations or by filing an affidavit that he consented to the alterations and explaining why he did not initial the alterations. Mr. Addy has filed no affidavit to prove that he obtained the consent of the Registrar. His submissions from the bar are not evidence.
Another alleged defect in the summons is that the return day mentioned in the summons is 6th June, 1988., Rule 9 (1) requires this day to be not less than seven (7) court days after service of the summons. On respondent's version and the return of service, service was effected on 30th May, being only six (6) days before the return day.
Mr, Addy admitted that there was short service of the summons but he submitted that the respondent has no bona fide defence against applicant's claim. The point is whether the Court would have granted provisional sentence on the 10th June if it was aware that there was short service. I am of the view that it would have refused the
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application on the ground that the summons did not comply with the rules.
It was submitted that the matter was not set down for the return day of the 6th June mentioned in the summons. The alleged set down for the 10th June was irregular since the summons was not amended accordingly; the Registrar did not consent to the amendment from 6th to 10th June; no application was made to the court for an amendment of the summons from the 6th to 10th June, 1988 and that there was no service upon applicant of the set down for the 10th June-
In the case of Rigby Engineering v. Rockboring & Drilling (Pty) Ltd. 1981 (1) S.A. 328 at p. 331 Smuts, J. had this to say about the amendment of the return date:
"As I see the matter, the reason why a Court will not grant judgment on a provisional sentence summons on a date other than that mentioned in the summons as the return day, even should notice be given to the defendant of the plaintiff's intention to apply for judgment on a later date, is that before that can be done the summons will have to be amended. Should it be sought to amend that date of the return day prior to service of the summons, it would be necessary for the Registrar to signify his assent to the amendment by initialling the amendment to the summons."
In the case of Hanson and Schrader v. Pauling 4 S.C. 92 it was held that all summons must bo issued by the Registrar and that the summons with the alteration had never been issued by the Register The case could not be heard. The alterations had been made by the deputy sheriff after receiving instructions from the plaintiff's
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attorney who had agreed with the defendant's attorney about the alterations.
It was submitted on behalf of the respondent that the calling upon applicant in the summons to appear in Court on the 6th June, 1988 and to file an affidavit not later than the 10th June, 1988 was a patent human error which was technical in that clearly the dates had been reversed; i.e. the applicant should have been called upon to appear in Court on the 1Gth June, 1988 and to file an affidavit not later than the 6th June, 1988.
I agree that this was a human error but the counsel ought to have brought it to the attention of the court especially because the summons was misleading or confusing to the applicant. The respondent admits that this was a human error. It was not entitled to apply for provisional sentence on the 10th June because the return day was erroneously stated as the 6th June, 1988.
It was submitted that before the provisional sentence was granted the original cheques were not handed in. In Uniform Rules of Court. 1st edition at p, 60 the learned authors state that in a matter of provisional sentence the plaintiff need not attach the original
documents sued upon, the practice being to hand these in from the Bar when the plaintiff moves for provisional sentence. But true copies of all documents must be attached to the summons and served with it. If these differ from the originals in any imported, respect provisional sentence will be refused unless an amendment or
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the serving of true copies is permitted (See Munitz v. Glynville Investments .(Pty) Ltd., 1951 (2) S.A. 24 (c); Combrinck v.Kruger
1950 (2) S.A. 783 (0).
In the present case the original cheques were inadvertently not handed in and no comparison was made between the attached copies and the original cheques. I am of the view that the provisional sentence was mistakenly granted.
The judgment is attacked on the ground that it was fraudulently obtained because at the time the summons was served upon the applicant an amount of M60,393-20 of the alleged debt had been paid. This is common cause. The respondent did not amend the summons accordingly to reflect the exact debt it alleges the applicant owed it. The summons was served upon the applicant and eventually a provisional
sentence was applied for and obtained in the original amount of M277,405-66 without disclosing to the Court that the amount had been reduced by over M60,000-00. A writ of execution was issued in the original amount.
I am of the view that even if it may be said that the applicant has failed to prove intent to defraud, it can hardly be contended that he has not proved gross negligence on the part of the respondent and its counsel. A provisional sentence summons which does not disclose the exact debt owed by the defendant is fatally defective and must be amended before the plaintiff can rely on it to obtain a provisional sentence.
I have come to the conclusion that the defects discussed above arefatal, and if the Court was made aware of them, it would not have granted the provisional sentence.
Regarding the question of whether the applicant has a bonafide defence or not, it is a very difficult matter to decide on affidavits. The applicant's defence is that not all the goods he paid for were delivered. The respondent has filed a replying affidavit in which he denies this and has certain documents which tend to support its claim that all the goods ordered by the applicant were delivered.
As I said earlier in this judgment . the summons was so fatally defective that the Court would not have granted provisional sentence if the defects had been disclosed.
The view I take is that provisional sentence was erroneously sought and erroneously granted and that in terms of Rule 45 (1) (a; the Court has the power to rescind the judgment.
The order of the Court is that:
The provisional sentence judgment granted by this Court on the 10th June, 1988 is rescinded;
The writ of execution issued out of this Court on the 13th June, 1988 is set aside.
The respondent shall pay costs of the application.
J.L. KHEOLA
JUDGE
23rd August, 1983
For Applicant - Mr. Redelinghuys
For Respondent - Mr. Addy.
