IN THE HIGH COURT OF LESOTHO
In the Matter of:
BARLOWS O.F.S. LIMITED Plaintiff
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
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
"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
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
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:
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.
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
is honest in his attitude,"
Vieyra J. in considering the papers before him said at
"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
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
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.
14th September, 1981.
Attorney for the Plaintiff : Du Preez, Liebetrau & Co.
Attorney for the Defendant : CM. Masoabi & Co.
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