1

IN THE
COURT OF APPEAL OF LESOTHO

C. OF A.
(CIV) NO. 4\98

CIV\T\599\97

In the
matter between :

LEHLOHONOLO
PHORI Appellant

and

ELENA
DUROW t\a J & e ENTERPRISES Respondent

Coram :

Steyn P

Browde
JA

Leon JA

JUDGMENT

Browde
JA:

This
appeal arises from an application for summary judgment in the High

2

Court
which can best be described as a comedy of errors. The summons in the
matter was issued by the respondent in October 1997
against
Lehlohonolo Khori t\a Thembalethu Butchery. In the summons the
respondent claimed payment of the amount of M61 860.95 with
interest
thereon at the rate of 22% from August 1997 to date of payment. There
followed a declaration by the respondent dated the
8th November 1997
in which the respondent prayed for judgment against the appellant in
the sum of Ml4 118.28 plus interest at the
rate of 22% calculated
from August 1997. In the declaration there is set out in paragraph 4
the following :

"Plaintiff supplied the Defendant with the said goods from the
date of agreement in the total amount of M70 641.27 and there
were
some payment (sic) which were made in the total amount of Ml5 000.00.
The total amount due and payable is M61 860.95."

The
agreement referred to is alleged to have been entered into on or
about the 1st of March 1997.

It is
clear that if the total amount was as set out in paragraph 4 and the
payments were M15 000.00 then the total amount due and
payable was
M55 641.27 and not the sum alleged to be the amount payable in
paragraph 4. Nor, of course, is there any explanation
whatsoever as
to why judgment is prayed for in the sum of M14 118.28 only. Attached
to the declaration was a special power of attorney
given by one
Letsema Emmanuel Letsoela to attorney Mphalane, the said Letsoela 3
saying that he does so "duly authorised by
virtue of resolution
dated 6 November 1997". The resolution is not attached and it is
not clear whose resolution it is alleged
to have been.

The next
document in the record is a notice of intention to defend apparently
signed on behalf of the Defendant (wrongly called
Khori) on the 18th
of November with an indication on it that it was served on the
Plaintiff on the 19th November 1997. Attached
to that document is a
special power of attorney in which Lehlohonolo Khori apparently
nominates attorney Monyako to defend the
action in which, so it is
stated, Plaintiff claims payment of the sum of M14 118.28 for goods
sold and delivered with interest
at the rate of 22% calculated from
August 1997. On a date which is not clear but which appears to be the
20th day of November 1997
a notice of application for summary
judgment was filed by attorney Mphalane in which it is stated that
application would be made
on behalf of the applicant (the present
respondent) on the 4th day of November 1997 for summary judgment. The
affidavit of Elena
Durow in support of the application and dated 20th
day of November 1997 is attached. In paragraph 3 thereof the deponent
states
that she attaches documents pertaining to the claim "and
which shows the Defendant's indebtedness to the Plaintiff The
documents
referred to date back to the 1st of 4 March 1994 which is
rather surprising having regard to the allegation that the agreement
between the parties was entered into on the 1st of March 1997. It
appears from those documents that the last purchase made by the

Appellant was in September 1995 when the balance outstanding was
something over M200 000.00. The only other debit entries since
that
time refer to interest charged by the respondent.

In August
1997 the balance is shown as M61 860.95 but it is not clear at all
what amount is for goods sold and delivered and what
for interest.
The documents attached to the affidavit leave this question
unexplained.

On the
22nd of November 1997 attorney Monyako on behalf of the appellant
drafted a request for further particulars which appears
to have been
served on the respondent on 24 November 1997. In that document the
respondent is asked to provide particulars as to
how the amount of
M61 860.95 as appears on the summons is arrived at and how the amount
of M14 118.29 as appears on the declaration
is arrived at. No reply
was given to those questions but on the same day as the respondent
received the request a notice of set
down in respect of the
application for summary judgment was prepared and served. This gave
notice that the hearing would take place
on 8 December 1997. On that
day i.e. the day of the hearing a 5 supplementary affidavit was filed
by the respondent and dated the
26th November 1997. To this affidavit
there was attached "a bundle of documents in support of
application for summary judgment".
This "bundle of
documents" is alleged in the affidavit to show the indebtedness
of the Defendant as stipulated in the
summons. These documents are
certainly not self-explanatory and are merely a series of what appear
to be invoices in respect of
meat, many of which contain an overprint
of a rubber stamp reading:

"PROPERBOER-DIENSBURO BK Voortrekker Straat 24 Posbus 271
Ladybrand 9745 Tel 05191-2074".

No
explanation is given for this rubber stamp or what it means on the
invoices.

The
special power of attorney given to attorney Mphalane authorises him
to sue for the sum of M61 860.95 plus interest at the rate
of 22% per
annum from March 1997 to date of payment. The documents attached to
the affidavit for summary judgment show interest
already charged for
March to September 1997 and therefore a claim in October or November
with interest from March would be asking
for interest on interest.

At the
hearing on 8 December 1997 Monapathi J granted judgment by default 6
against the appellant "it having been found that
the Defendant
had been served on the 12th November 1997. The Defendant had not
responded that is why the Plaintiff applied for
a default judgment".
It need hardly be pointed out that the Defendant by the 9th of
December 1997 had not only responded but
had entered an appearance to
defend and had filed and served a request for further particulars.
The following day when it was discovered
that what was intended to be
asked for was summary judgment and not default judgment the learned
judge decided that it was "just
and proper in the total
circumstances of the matter" to correct the order he had made.
In doing so he outlined the various
documents in the file and decided
that since the Appellant had not complied with Rule 28(3) of the
Rules of Court that he should
grant summary judgment in the amount
claimed in the summons. In doing so he overlooked the discrepancies
between the summons and
the declaration and stated as follows :

"I was aware that Mr Monyako (on behalf of the Appellant) had
felt very strongly about the matter of the discrepancies in
the sums
contained in the summons and the declaration. This as I have said is
shown by that paragraph in his request for further
particulars in
which the Plaintiff is taken to task in the manner shown. The
Plaintiff ignored this and proceeded on to claim for
the order ".

He then
went on to say that –

"One could be of the view that he (i.e. the Respondent) should
have applied for striking of the request for particulars as
an
improper step.

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I however felt that if there were other reasons and of course it had
to be serious reasons why the Defendant felt the judgment
was
irregular or was a mistake and an error of some kind he should apply
for rescission of judgment."

The fact
that the Appellant might have a reason for applying for rescission of
a judgment is in my opinion no good reason for granting
the judgment
in the first place.

The
learned judge then went on to state that another issue which was
raised was that the Plaintiff should have applied for an amendment

having regard to the contradiction which existed between the summons
and the declaration. The learned judge dealt with this by
stating –

"This he had not done but it was clear how the sum ofM61 860.95
was arrived at in the summons as in that paragraph 4 of the

declaration. It was that sum thisM6I 860.95 was a balance from the
original sum ofM70 000.00. That is the sum the Plaintiff claimed.
I
therefore condoned that irregularity as not being a serious one. "

(sic).

I can
hardly agree with that approach of the learned judge to the problem
which confronted him when he had to decide whether or
not to grant
summary judgment. An application for summary judgment is an
extraordinary remedy since it enables a Plaintiff to obtain
judgment
against a Defendant without a trial despite the Defendant having
entered an appearance to defend. It is for this reason
that

8 Courts
will be reluctant to refuse leave to defend where the transactions
between the

parties
are complicated and the quantum of the Plaintiffs claim is not so
clear as to be readily ascertainable. Accordingly Courts
have widely
and consistently held that the affidavit of the Plaintiff may only
contain those matters which are expressly provided
for in the Rule of
Court which deals with Summary Judgment. See, for example, M.A.N
Truck & Bus(S.A.)(Pty)Ltd v. Singh and
Another (1) 1976(4) SA
264. (Lesotho Rule 28 is identical to South African Rule 32) and
reads :

"(2) The plaintiff, who so applies, shall within fourteen days
after the date of delivery of entry of appearance, deliver
notice of
such application, which notice must be accompanied by an affidavit
made by the plaintiff or by any other person who can
swear positively
to the facts verifying the cause of action and the amount, if any
claimed and such affidavit must state –

1. that
   in the opinion of the deponent the defendant has no bona fide
   defence to the action and

   
   

2. that
   entry of appearance has been entered merely for the purpose of
   delay.

   
   

3. If
   the claim is founded on a liquid document a copy of the document
   must be annexed to the affidavit.

   
   

The notice of application shall state that the application will be
set down for hearing on a specified date which shall be not
less than
seven day from the date of delivery of the notice."

In the
instant case there is a great deal of confusion in the Respondent's
claim arising inter alia from the documents which were
filed by the
Respondent and 9 admitted as evidence by the learned judge which, if
they show anything, show that there is considerable
doubt regarding
the amount which the Respondent was entitled to claim from the
Appellant on the 8th of December 1997. In this regard
it is
surprising that the learned judge a quo was able to say what he did
in the passage from his judgment quoted above.

As I have
already pointed out, paragraph 4 of the declaration is impossible to
reconcile with the claim in the summons or the prayer
in the
declaration. It is also impossible to reconcile the statement in
paragraph 4 that Plaintiff supplied the Defendant with
the said goods
from the date of agreement i.e. 1 March 1997, with the details
furnished as part of the affidavit in support of
summary judgment.
There are no goods shown as having been sold from March 1997 as the
only debits in the account are for interest.

I am of
the view that summary judgment should not have been granted by the
learned judge. Although it could be contended that the
amount was not
formally in dispute because no affidavits were filed by the
Appellant, nevertheless the confusion which exists between
the
summons and the declaration, the documents which show that no goods
were sold from March 1997 and the claim for interest at
the rate of
22% which is totally unsubstantiated should have led the learned
judge to the 10 conclusion that the debt could not
be ascertained
promptly and summarily as is required for the relief sought The
Appellant noted his appeal to this Court on two
grounds namely :

(I) That
the claim in the summons differed materially from that in the
declaration; and

(ii) That
the learned judge erred and misdirected himself in granting judgment
by default and thereafter, without any formal application
by the
Plaintiff to amend the summons and declaration, altered the judgment
to one for summary judgment for the amount claimed
in the summons
without reference to the declaration.

After
Monapathi J granted summary judgment an application was launched by
the Appellant in which he sought a stay of execution pending
the
determination of the appeal. It appears from the supporting affidavit
to that application that three or four days after the
grant of
summary judgment the Deputy Sheriff arrived at the business of the
Appellant and demanded the sum of M3 395.00 if the
Appellant wished
to suspend execution. This amount was paid but the Deputy Sheriff, so
the allegations went, again came to demand
more money to stave off
the sale of the Respondent's property.

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In answer
to the allegations of the appellant the respondent stated, inter
alia, that the supplementary affidavit in the summary
judgment
proceedings "was only filed to show the invoices pertaining to
the business transactions between the parties. This
is to prove that
parties had some business dealings." I consider this an
unacceptable explanation for the filing of the supplementary

affidavit since it specifically states therein that the documents
"show the indebtedness of (he Defendant to the Plaintiff
as
stipulated in the summons". The respondent also attached to her
affidavit a document purporting to be an acknowledgment
of debt
signed by the Appellant. In reply the appellant admitted to signing
the document but stated that he signed it in blank
and pointed to
certain features of the document which cast some doubt on its
authenticity. The respondent's attitude was that the
appeal was being
pursued merely to delay payment and consequently asked that the stay
of execution be denied.

The
application for stay of execution ended with an order made by
Monapathi J in the following terms :

1. Applicant
   to pay M10 970.00 which he acknowledged he owed.

   
   

2. Applicant
   pays with effect from February 1998 a sum of M2 000.00 to be placed
   in trust with creditor's lawyer until heard in June.

   
   

3. All
   property attached to be returned to the debtor (Appellant) 12 at the
   place they were taken.

   
   

4. Deputy
   Sheriff to present before the Registrar a bill of costs within 30
   days.

   
   

5. Record
   of proceedings for the Court of Appeal to be prepared before the end
   of March 1998 failing which execution will proceed.

   
   

6. Costs
   of this application are awarded to the Respondent (the Respondent in
   this appeal) ".

   
   

Apart
from the fact that paragraph 2 of the above order is incomprehensible
it also escapes me how the learned judge, in an application
for a
stay of execution, came to make an order which had nothing whatever
to do with the relief sought by the Appellant in his
application for
a stay nor with the prayer of the respondent which simply asked that
the application be dismissed with costs. The
order issued by
Monapathi J is, therefore, completely irregular and falls to be set
aside.

In the
result the appeal should be upheld with costs and the order of the
Court a quo altered to read,

"The
application for summary judgment is dismissed with costs " The
order made by Monapathi J pursuant to the application
for a stay of
13 execution is set aside.

J. BROWDE

Judge of Appeal

I agree
and it is so ordered:

J.H. STEYN

President

I agree :

R.N. LEON

Judge of Appeal

Delivered
this..31st day of July, 1997 at Maseru