CIV/T/122/81

IN THE HIGH COURT OF LESOTHO

In the Matter of:

BARLOWS O.F.S. LIMITED Plaintiff

v.

PITSO PHAKISI MAKHOZA Defendant

t/a MALUNGA EARTH MOVING

REASONS FOR JUDGMENT

S. Aaron for the Plaintiff

CM. Masoabi for the Defendant

On the 24th August, 1981, I granted an application

for summary judgment in this case. These are my reasons.

On the 13th May, 1981, the plaintiff issued a

summons against the defendant in which he claimed "Payment

of the sum of M7,000 being the amount due and payable to

plaintiff by defendant in respect of the purchase price of

goods sold and delivered by plaintiff to defendant at the

latter's special instance and request during or about

March 1981 which amount, despite demand, defendant has

failed to pay."

An appearance was entered by the defendant's attorneys

on the 26th May. The application for summary judgment

under Rule 28 of the High Court Rules was filed on the

4th June. It was accompanied by the affidavit of one

Ivan De Beer which complied in every respect with Rule 28

(2).

The defendant filed an affidavit in opposition in

which he denied the allegation that he was indebted to the

plaintiff in the amount claimed in the summons and went on

to say:

"I say that the summons are so vague that I

don't know to what they relate to especially

when the Plaintiff company has not found it necessary

to serve me with the Declaration and has refused

2/to reveal

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to reveal the nature of its claim against me

as shown by the copy of its Attorney's letter

dated 8th June, 1981. Attached here to marked

Annexure "A".

I further aver that if Plaintiff's claim

relates to a Hire-Purchase Agreement then there

are disputes of facts and law and it is not a

liquid document or claim and the Plaintiff com-

pany is not entitled to apply for summary judgment

especially when I paid cash every time 1 bought

from the Plaintiff company."

The letter annexed to the affidavit reads as follows:

"Dear Sirs,

RE: CIV/T/123/81 : BARLOWS O.F.S. LIMITED vs.

MILLION CENTRE CONSTRUCTION(PTY) LIMITED

We thank you for your letter of the 2nd instant

and must advise that it was not necessary to serve

the Declaration with the Summons, because the claim

is a liquid one.

If leave is granted to your Defendant, after the

application for Summary Judgment is heard, then we

shall of course file the Declaration.

Yours faithfully,

DU PREEZ, LIEBETRAU & CO.,"

Rule 28 (3) confers upon the defendant the option of

either giving security to the plaintiff or satisfying the

Court by affidavit, or with leave of the Court by the

oral evidence of himself or of any other person who can

swear positively, to the effect that he has a bona fide

defence to the action. In the instant case the defendant

choose to rely upon his affidavit as his sole resistance

to the application.

Our Rule 28 has a corresponding rule of practice

in the Supreme Court of South Africa, In Herb Dyers (PTY)

Ltd v. Mahomed and Another 1965 (1) S.A. 31 Vieyra J. held

that the defendant must disclose fully the nature and

grounds of the defence. In particular the word "fully"

connotes that sufficient detail of the nature and grounds

of the defence must be disclosed to enable the Court to

decide the issue, viz. whether the defence is a good one

and honestly made. In his judgment the learned Judge relied

upon a statment of Ludorf J. in Primrose Brick Works

(1936) Ltd v. Metropolitan Timber Co. Ltd., 1959 (1) S.A.

35 at 36 to the effect

"On the authorities, the test is clear. A defendant

setting up a defence in reply to an application

for summary judgment must show that he has a defence,

which, if proved, would be a good one and that he

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is honest in his attitude,"

Vieyra J. in considering the papers before him said at

32

"How then does the defendant deal with this

claim? The only clear reference is in para.3

(d) where it is alleged as follows:

'I am unable to comment on plaintiff's

alleged claim of R1,470.37 since no

details have been supplied to me showing

how this alleged amount is made up'.

This really means:

'I cannot say at this stage what my

defence is.'

He does not say that he entered into no such agreement

as alleged by the plaintiff, or that it was a

different type of agreement, or that there were

no services rendered, or that there was no agreed

price, or that the amount claimed is not reasonable.

He declines to comment. According to the Rule this

is precisely what he should do so as to afford

material from which to judge whether there is a bona

fide defence.

In the present case the defendant makes a similar

complaint that he does not know as to what the claim relates.

He refers to the existence of a Hire Purchase Agreement

and declares that there are disputes relating to such

agreement the nature of which he does not disclose. His

statement "I paid cash every time I bought from the

plaintiff company" is not a denial of the existence of a

debt and it is clearly inconsistent with the reference

to the disputed Hire Purchase Agreement. The defendant

has failed to satisfy this Court which he is obliged to

do in terms of the Rule. (See also Petlen Properties v

Poland Construction 1973 (4) S.A. 557 where the authorities

are extensively reviewed).

Judgment was accordingly granted as prayed as

defendant did not exercise the other option open to him,

I may add that on the same day I had before me in

CIV/T/123/81 Barlows O.F.S. Limited v. Million Centre

Construction (Proprietary) Ltd with an identical application

and affidavit in opposition. In that case I entered

judgment in favour of plaintiff for M 6,380 and costs.

F.X. ROONEY

JUDGE

14th September, 1981.

Attorney for the Plaintiff : Du Preez, Liebetrau & Co.

Attorney for the Defendant : CM. Masoabi & Co.