CIV/T/92/81
IN THE HIGH COURT OF LESOTHO

In the matter of :
BARLOWS O.F.S. LIMITED Plaintiff
v.
PITSO PHAKISA MAKHOZA Defendant

Filed by the Hon. Justice F.X. Rooney on
the 14th day of September, 1981
Mr. S. Aaron for the Plaintiff
Mr. C.Masoabi for the Defendant
On the 24th of August 1981, I allowed an application
for summary judgment in this matter and these are my
reasons for so doing.
On the 24th April the Plaintiff issued the summons
against the defendant claiming as follows :
"1. Payment of the sum of M69,214 being the
balance owing in respect of certain
Hire Purchase Agreement entered into
between the parties on the 18th August,
1980;
ALTERNATIVELY:
2.       (a) Return of certain WRIGHT 140G Motor
Grader with rear mounted ripper;
(b)     Payment of the sum of M43,809,28 being
the arrears owing under the aforesaid
Hire Purchase Agreement;
(c)     Leave to approach the Court on the
same papers duly amplified for any
damages,suffered as a result of the
Defendant's breach;
3.       Costs of suit.
An appearance was entered on the 14th May. On the
day following an application for summary judgment was made
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supported by the affidavit of Ivan John De Beer which
complied with the provision of Rule 28 (2) of the Rules of
the High Court. On the 4th June the defendant filed an
affidavit in opposition in which he denied that he was
indebted to the applicant company as alleged and went on
to say
" I admit that I once entered into a Hire
Purchase Agreement with the Applicant Company
regarding a certain Wright 140G Motor Grader
and further avers that the alleged written Hire
Purchase Agreement signed by me on the 14th
August, 1980 was cancelled and/or varied by a
subsequent agreement dated 16th March, 1981 a copy
of which is hereto attached marked Annexure
"a". Under this subsequent contract or agreement
the amount owed to the Applicant Company by me is not
as alleged and therefore the Applicant company is
not entitled to this application for summary
judgment since I am not in arrears with the instalment
due to the fact that the original Hire-Purchase
Agreement was extended when it transpired that
the alleged Wright 140G Motor Grader had a
factory fault and was not working until the 6th
March, 1981.
I also attach a copy of my letter dated
31st March, 1981 marked Annexure "B" which indicates
that the original agreement had to be changed.
4.
AD PARAGRAPH 4 THEREOF
I therefore verily aver that I have a bona fide
defence to this action in so far as the Applicant
Company cannot in Law rely on the Hire-Purchase
Agreement signed by both parties on the 14th
August, 1980 in the light of the agreement signed
on the 16th March, 1981.
I finally aver that the Applicant Company has
not found it necessary even to attach a copy of
the alleged Hire Purchase Agreement signed on the
14th August, 1980.
In regard to the last paragraph quoted above I may
remark that there is no obligation on any party to an
action before this Court to attach as part of his pleadings
documentary evidence of his claim or defence.
A perusal of annexure A attached to the defendant's
affidavit reveals that the plaintiff made an offer to
vary the terms of the Hire Purchase Agreement by re-
scheduling the payments due by the defendant in either
of one of two ways. On acceptance of either offer the
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defendant was required to pay the arrears due by the
16th March, 1981 and depending upon which of the
alternative proposals he accepted he was obliged to pay
either M25,404.64 or M37,458.12 on or before that date.
In annexure B the defendant said
"I have refused to accept your offer to
extend H.P. contract by two months       "
The rest of the letter went on to raise matters which
were not included in the affidavit filed in opposition.
It is therefore clear that the defendant failed
to establish that the terms of the Hire Purchase Agreement
were varied by agreement in such a manner that would
afford him a defence to the action. He made no allegation
that he had paid either of the two amounts required by the
Plaintiff on or before the 16th March. He thus failed
to satisfy this Court in terms of the Rule that he had
a bona fide defence to the action.
Judgment was entered as follows :
1.      Payment of M69,214 and alternatively
2.      Return of the grader claimed in the summons
3.      Damages to be assessed by the Court and
4.      Costs of the action.
F.X. ROONEY
JUDGE
14th September, 1981.
Attorney for the Plaintiff : Du Preez, Liebetrau & Co.
Attorney for the Defendant : C.M. Masoabi & Co.