CIV/APN/
/89

CIV/T/600/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

SIMON
LETOAO Applicant

and

TEBOHO
SEHAPI

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 24th day of
September, 1990

This is
an application for rescission of judgment and for leave to defend the
action in CIV/T/600/88 which was granted by this Court
on the 9th
June, 1989.

In his
founding affidavit the applicant avers that some time in August, 1988
his wife gave him a copy of a summons in CIV/T/600/88
and informed
him that the deputy-sheriff who served the summons told her that if
the applicant wanted to say anything regarding
the summons he must
report himself at the offices of Mr. Kambule, respondent's attorney.
He immediately went to Mr. Kambule's offices
but was informed that
Mr. Kambule had gone to

2

Butha-Buthe.
He was asked to come back some other time. The applicant avers that
for about a month he kept on reporting himself
at Mr. Kambule's
offices but got no assistance because Mr. Kambule was not there. He
was however given the impression that as soon
as Mr. Kambule was
available, he could be contacted to report himself at the aforesaid
offices.

Thereafter
the applicant left for Semonkong where he had some construction work
to do. He remained at Semonkong for about four months
and when he
returned to his home there was still no message from the offices of
Mr. Kambule. He was surprised when on the 19th
June, 1989 his wife
gave him a copy of a writ of execution in CIV/T/600/88. She also
informed him that certain property of the
family had been attached
and was to be removed at a later stage. The applicant avers that he
was misled by the deputy-sheriff,
Rethabile Sehloho, who happens to
be Mr. Kambule's employee.

The
applicant avers that he has a bona fide defence to respondent's claim
inasmuch as it is the respondent who is in breach of the
terms of
their contract. He has failed to pay M4,000-00 agreed upon and only
paid M2,000-00. He stopped pay­ment of a cheque
for M500-00
although in the summons he claims that he paid an amount of
M2,500-00.

3

It is
also not correct that when the respondent took the vehicle which is
the subject matter of CIV/T/600/88 it was not in a roadworthy

condition. It is also not correct that the applicant and the
respondent agreed that the latter would effect repairs to the vehicle

and then deduct the cost of the said repairs from the purchase price
of M4,000-00.

The
applicant avers that the correct position is that the respondent paid
to the applicant the sum of M2,000-00 in April, 1988 when
he took
delivery of the vehicle. He promised to pay the balance when he got
paid from the construction work he was doing in Mohale's
Hoek. He
however failed to live up to this promise until the vehicle in
question got involved in an accident at Thabong. The alleged
repairs
thus arose out of the said collision and normal wear and tear. The
respondent cannot therefore properly set off the costs
of effecting
such repairs from the purchase price of the vehicle.

The
applicant denies that he ever demanded the return of the said vehicle
on the 5th January, 1988. The respondent returned the
vehicle on his
own saying that he could no longer afford to pay the applicant any
more. He has annexed a letter allegedly written
by the respondent
when he returned the vehicle

(See
Annexure."DD").

4

In his
opposing affidavit the respondent denies that the applicant went to
Semonkeng and remained there for four months. He avers
that he met
the applicant before the end of 1988 and they discussed this matter.
The applicant promised that he would settle this
matter. The
respondent deposes that he referred him to his counsel's offices as
the matter was already before this Court. He admits
that the purchase
price was M44,000-00 and that he paid M2,000-00. He also admits that
he stopped payment of the cheque for M500-00
because the applicant
refused to renew the licence for the vehicle for the year 1988 and
told the respondent that he wanted the
vehicle for his own use. After
stopping payment of the cheque he made a demand for payment of
damages he had suffered as a result
of repairs to the vehicle and the
deposit he had paid. (See Annexure "Y").

The
respondent avers that the damage caused by the accident referred to
above was minor as only the front mudguard on the right
side was
dented. When the vehicle was delivered to him it was not in a
roadworthy condition and repairs were effected on various
occasions.
He did not fail to pay the balance because the applicant took
possession of the vehicle before the balance could be
determined
taking into account the expenses incurred by the respondent in
putting the vehicle in a roadworthy condition He denies
that he
voluntarily returned the vehicle to the appli­cant and denies
that he wrote Annexure "DD".

5

In an
application of this nature the applicant must satisfy the Court that
his default not to enter an appearance to defend was
not willful and
that he has a bona fide defence (Nqoko v. Morreira 1976 L.L.R. 137).
In the instant case the applicant has shown
that after receiving the
summons he went to the offices of the respondent's counsel because he
was going to show that he was not
liable and to explain what had
happened. In other words he had all the intended to defend this
action. Rethabile Sehloho is Mr.
Kambule's clerk and messenger. He
admits that the applicant came to the offices of his employer. His
intention was to settle the
matter. He (Rethabile) informed the
applicant that Mr. Kambule was the person with whom he could discuss
a settlement. On that
day Mr. Kambule was not available and the
applicant promised to come back but he never did so.

I shall
accept applicant's story that he did try to meet Mr. Kambule to
discuss the matter whether it was with the intention of
settling the
matter or not is not something that can be resolved without viva voce
evidence being heard.

It is the
applicant's contention that he has a bona fide defence in that the
respondent was in breach of the terms of the contract
in that he
failed to pay the balance of M2,000-00 and voluntarily returned the
vehicle saying that he could no longer afford to
pay the applicant.

6

Most of
the issues raised by the applicant in this application are disputed
by the respondent. It seems to me that if at the trial
the applicant
can prove the allegations he has made in this application the trial
court may find that he has a bona fide defence.
I think this is a
proper case to go to trial to enable the parties to lead viva voce
evidence in order to enable the Court to resolve
the highly disputed
matters.

In the
result the application is granted as prayed. Costs shall be costs in
the cause. The applicant shall file his plea within
twenty-one days
from the date of this judgment.

J.L.
KHEOLA

JUDGE

24th
September, 1990.

For the
Applicant - Mr. Mohau

For the
Respondent - Mr. Kambule.