CIV/APN/ /89 CIV/T/600/88
IN THE HIGH COURT OF LESOTHO In the
SIMON LETOAO Applicant
J U D G M E N T
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 24th day of September, 1990
This is an application for rescission of judgment and
for leave to defend the action in CIV/T/600/88 which was granted by
on the 9th June, 1989.
In his founding affidavit the applicant avers that some
time in August, 1988 his wife gave him a copy of a summons in
and informed him that the deputy-sheriff who served the
summons told her that if the applicant wanted to say anything
summons he must report himself at the offices of Mr.
Kambule, respondent's attorney. He immediately went to Mr. Kambule's
but was informed that Mr. Kambule had gone to
Butha-Buthe. He was asked to come back some other time.
The applicant avers that for about a month he kept on reporting
Mr. Kambule's offices but got no assistance because Mr.
Kambule was not there. He was however given the impression that as
Mr. Kambule was available, he could be contacted to report
himself at the aforesaid offices.
Thereafter the applicant left for Semonkong where he had
some construction work to do. He remained at Semonkong for about four
and when he returned to his home there was still no message
from the offices of Mr. Kambule. He was surprised when on the 19th
1989 his wife gave him a copy of a writ of execution in
CIV/T/600/88. She also informed him that certain property of the
been attached and was to be removed at a later stage. The
applicant avers that he was misled by the deputy-sheriff, Rethabile
who happens to be Mr. Kambule's employee.
The applicant avers that he has a bona fide
defence to respondent's claim inasmuch as it is the respondent who is
in breach of the terms of their contract. He has failed to
M4,000-00 agreed upon and only paid M2,000-00. He stopped payment
of a cheque for M500-00 although in the summons he claims
paid an amount of M2,500-00.
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It is also not correct that when the respondent took the
vehicle which is the subject matter of CIV/T/600/88 it
was not in a roadworthy condition. It is also not
correct that the applicant and the respondent agreed that the latter
repairs to the vehicle and then deduct the cost of the
said repairs from the purchase price of M4,000-00.
The applicant avers that the correct position is that
the respondent paid to the applicant the sum of M2,000-00 in April,
he took delivery of the vehicle. He promised to pay the
balance when he got paid from the construction work he was doing in
Hoek. He however failed to live up to this promise until the
vehicle in question got involved in an accident at Thabong. The
repairs thus arose out of the said collision and normal wear
and tear. The respondent cannot therefore properly set off the costs
of effecting such repairs from the purchase price of the vehicle.
The applicant denies that he ever demanded the return of
the said vehicle on the 5th January, 1988.
The respondent returned the vehicle on his own saying that he could
no longer afford to pay the applicant any more.
He has annexed a
letter allegedly written by the respondent when he returned the
vehicle (See Annexure."DD").
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In his opposing affidavit the respondent denies that the
applicant went to Semonkeng and remained there for four months. He
that he met the applicant before the end of 1988 and they
discussed this matter. The applicant promised that he would settle
matter. The respondent deposes that he referred him to his
counsel's offices as the matter was already before this Court. He
that the purchase price was M44,000-00 and that he paid
M2,000-00. He also admits that he stopped payment of the cheque for
because the applicant refused to renew the licence for the
vehicle for the year 1988 and told the respondent that he wanted the
for his own use. After stopping payment of the cheque he made
a demand for payment of damages he had suffered as a result of
to the vehicle and the deposit he had paid. (See Annexure
The respondent avers that the damage caused by the
accident referred to above was minor as only the front mudguard on
the right side
was dented. When the vehicle was delivered to him it
was not in a roadworthy condition and repairs were effected on
He did not fail to pay the balance because the
applicant took possession of the vehicle before the balance could be
into account the expenses incurred by the
respondent in putting the vehicle in a roadworthy condition He denies
that he voluntarily
returned the vehicle to the applicant and
denies that he wrote Annexure "DD".
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In an application of this nature the applicant must
satisfy the Court that his default not to enter an appearance to
defend was not
willful and that he has a bona fide defence
(Nqoko v. Morreira 1976 L.L.R. 137). In the instant case the
applicant has shown that after receiving the summons he went to the
offices of the respondent's
counsel because he was going to show that
he was not liable and to explain what had happened. In other words he
had all the intended
to defend this action. Rethabile Sehloho is Mr.
Kambule's clerk and messenger. He admits that the applicant came to
the offices of
his employer. His intention was to settle the matter.
He (Rethabile) informed the applicant that Mr. Kambule was the person
whom he could discuss a settlement. On that day Mr. Kambule was
not available and the applicant promised to come back but he never
I shall accept applicant's story that he did try to meet
Mr. Kambule to discuss the matter whether it was with the intention
the matter or not is not something that can be resolved
without viva voce evidence being heard.
It is the applicant's contention that he has a bona
fide defence in that the respondent was in breach of the terms of
the contract in that he failed to pay the balance of M2,000-00 and
returned the vehicle saying that he could no longer
afford to pay the applicant.
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Most of the issues raised by the applicant in this
application are disputed by the respondent. It seems to me that if at
the applicant can prove the allegations he has made in this
application the trial court may find that he has a bona fide
defence. I think this is a proper case to go to trial to enable
the parties to lead viva voce evidence in order to enable the
Court to resolve the highly disputed matters.
In the result the application is granted as prayed.
Costs shall be costs in the cause. The applicant shall file his plea
days from the date of this judgment.
J.L. KHEOLA JUDGE
24th September, 1990.
For the Applicant - Mr. Mohau For the Respondent -
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