CIV/T/441/82

IN THE
HIGH COURT OP LESOTHO

In the
matter between :

Mc INTYRE
& VAN DER POST Plaintiff

V

MALUNGA
EARTH MOVING Defendant

JUDGMENT.

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 23rd day of May.' 1983.

This is
an application to grant judgment against the defendant by virtue of
the fact that he has failed to file his plea timeously
despite a
reminder to do so.

In
opposing the granting or entering of judgment in favour of the
plaintiff counsel made a long speech imploring the Court to exercise

its discretion in terms of the Rules of this Court (Rule 59).

The
proceedings began on 13th January 1983 as an application for summary
judgment. Defendant sought the payment of M6,698,85 being
the amount
of a certain cheque dated 13th September 1982 drawn by the defendant
in favour of the plaintiff which when duly presented
was dishonoured.
The Defendant indicated his desire to oppose the application and was
allowed by the plaintiff a full re-hearsal
i.e. pleadings were
started from the beginning.

A plea is
the defedant's answer to the plaintiff's claim and in it the farmer
gets out whatever defence he relies upon. If he has
not pleaded a
defence he could deny on it. This

2

then is
the document which the defendant was. for one reason or the other was
very very reluctant to let the plaintiff have in terms
of the Rules.
He received a notice informing him to file his plea within three (3)
days from receipt of the said document. This
was totally ignored.
Almost six days later the notice of set down was served on the
defendant's attorneys. This evoked no reaction
on the defendant's
side. Only on the 6th day of May 1983 was it served on the
plaintiff's attorneys. In it the defendant simply
makes two defences,
viz, first that the cheque was not drawn in/favour of the drawees and
the goods were never delivered. The funds
were thus not made
available to meet the said cheque. (As to the meaning of any
endorsement on a cheque which has not been honoured
by the Bank, see
Lesotho Milling Co. v Paleo Tlelai. 1980(1) LLR. 85 at 86). Secondly,
the cheque was handed to the plaintiff's
attorneys in Maseru (who are
the Bloemfontein attorneys for the drawee) and correspondents for
Lesotho attorneys to make the cheque
appear to be held by the
plaintiff for value. They are, therefore, not genuine plaintiffs,

Whatever
the merits or demerits of this plea, it was terribly out of time and
not in accordance with the Rules. It

has
repeatedly been said that the Rules of Court are meant to be strictly
adhered to, the discretion being in the hands of the Court.
(See
Mokutlulu v Solicitor General & Others, 1981 (2) LLR. 405). In
this particular case it was quite clear that the defendant
had
recklessly disregarded his obligations. It was incredible that
counsel just mentioned, casually the question of coots. No serious

attention won paid to it, i.e. tendering thereof.

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Considering
the background of this matter as outlined earlier, the delay that
would have been occasioned by a further postponement
would have
highly prejudiced the plaintiff because it would be lengthy. Again it
would seem to the Court that what the defendant
was in fact doing was
to use for ulterior motive purposes a machinery devised specially for
the proper administration of justice.
The Court will do everything in
its power to put a stop to this abuse. The actions of the defendant
were, moreover, mala fide.
He had no desire for his case to be heard
timeously but rather to delay the plaintiff in obtaining his,
judgment. However, the
Court cannot allow this to happen. It seems to
me, therefore, that in these circumstances the Court was left with no
option to
exercise its discretion but to grant to judgment as prayed
in the summons.

JUDGE.

For the
Plaintiff :' Mr. Molloa

For the
Defendant : Adv. Gwentshe.