HIGH COURT OF LESOTHO
matter ox :
HAIR PRODUCTS (Pty) Ltd Plaintiff
MAPHELEBA t/a DYNASTY
DRESSING SALOON Defendant
lay the Hon, Mr. Justice M.L. Lehohla on the 2nd day of March. 1989.
On page 7
of the record is reflected a photostat copy of a cheque, Annexure "A"
marked "A" the original of which
was shown to me for
inspection and returned to plaintiff's attorney for safekeeping, I am
satisfied that this is a liquid document.
proceeding by way of provisional sentence summons sues defendant on
this liquid document. Defendant opposes the suit.
It is a
peculiar feature of defendant's opposing affidavit that it contains
no averment to the effect that the signature borne on
does not belong to her or to her authorised agent. This is a feature
that sits defendant or her agent rather
loosely in view of the fact
that in paragraph 4 (See p. 3 of record) of plaintiff's case
defendant is required to set forth in
"the grounds of her defence to the ...... claim, and in
particular, state whether she admits or denies her signature on the
it was admitted from the bar on defendant's behalf by her counsel
that the signature reflected is that of defendant. The
advanced for defendant's refusal
the amount reflected i.e. M4938.61 being that she never received the
goods purchased hence she instructed the Bank to stop
payment of that
signature on the cheque is not denied and since there can be no doubt
that the signature appearing above the word "deponent"
defendant's opposing affidavit is hers, it is a matter of curious
coincidence that the signature appearing on annexure "AA"
the delivery note should bear such striking similarity to the
signatures referred to above. Another striking feature is that the
cheque was due for payment on 22nd January 1937 which date is
reflected also at the bottom of annexure "AA". The amount
of the cheque also corresponds with that reflected on annexure "AA"
after some set of goods were returned for credit.
strong probability that defendant received the goods she denies
receipt of. Otherwise it is difficult to account for her
a document that shows the goods were in fact taken delivery of by the
dealing with this aspect of the matter it is worth bearing in mind De
Villiers J's remarks in Ternant vs Lamb 1947(2) SA.
at 660 that
"where a plaintiff is armed with a written admission of
liability by the defendant, as he is when he has liquid proof, he
armed with a. weighty piece of evidence, and before the scale can be
tipped against him, and in favour of the defendant, the
must produce weighty evidence."
just extract a quotation that earned the approval of this court in
CIV/T/553/86 Joubert Drankwinkels (Pty) Ltd vs B.E. Koma
at 12 where it was stated that
"the burden of proof is, of course, on the defendant to show
that he is not liable on a document which shows, prima facie,
liability in him on the face of it."
Needless to state "......non-performance by the other party
be a matter for defence, but would not affect the liquidity of the
Inter-Union Finance Ltd vs. Frankraalsrand B.P.K. 1965(4) Shi at 182
important to bear in mind that in provisional sentence proceedings
defendant is required to show that on a balance of probabilities
has prospects of success in the principal trial. Such degree of
probability would more readily incline the court to defendant's
favour if it can emerge in defendant's own case than if it is sought
to be founded on inferences pertaining to what are pointed
weaknesses in plaintiff's cose. Therefore as was stated in Lesotho
Foto Laboratories and Lighting Distributor (Pty) Ltd vs.
1980(2) LL.R 459 one of the requisites to satisfy in provisional
sentence proceedings is that
"defendant is unable to adduce such counter proof as will
satisfy the Court that in the principal case the probabilities of
success would too against plaintiff."
inclined to take the view that because defendant has not in affidavit
filed in opposition to the provisional sentence summons
denied her signature on the instrument sued upon she has breached
provisions of Rule 9(5).
On pace 9
of Koma above this Court was persuaded by the submission that
"it is not proper for defendant to come to Court to attack
plaintiff's case on inferences, without relying on affidavits seeking
to substantiate and justify the attack."
heartily endorse the view expressed at page 4 para 12 of plaintiff's
"At the hearing of a provisional sentence application, plaintiff
surrenders the original document on which the action is based
moves for judgment on it. Thereupon the defendant argues his case and
In a good
number of cases this procedure is breached,
it was breached in the instant case.
has failed to satisfy me that on a balance of probabilities she
stands a good chance of success in the main trial. I therefore
it appropriate to grant provisional sentence as prayed.
Plaintiff : Mr. Harley
Defendant : Miss Tau.
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