CIV/APN/130/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of

JOSEPH
KHOELE Applicant

v,

WILLIAM
ANDREAS JACOBUS 1st Respondent

SWANEPOEL

MESSENGER
OF COURT 2nd Respondent

MAFETENG

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 17th day of July,
1985.

In Civil
Trail No 128/85 instituted in this Court, the first Respondent, whom
I shall refer to as the Plaintiff, sued Applicant,
whom I shall refer
to as Defendant for provisional sentence in an amount of R15.322.16
on an acknowledgement of debt dated 20th
August, 1984 with interest
at the rate of 25% per annum from 5th January, 1985 and costs,
judgement was granted on 9th May, 1985
on a consent to judgment
signed by the Defendant.

A writ of
execution was issued by Plaintiff in pursuance of which six oxen were
attached by the Deputy Sheriff.

On 28th
May, 1985, an ex parte application was brought by the Defendant on a
certificate of urgency for the grant of a rule nisi
calling upon the
Plaintiff to show cause why the judgment granted against the
Defendant should not be rescinded and the execution
of the writ
stayed. Such interim relief was granted on the grounds stated in the
application, that is, that the Defendant signed
the acknowledgement
of debt on the Plaintiff's promise to pay off the Defendant's
indebtedness to the Standard Bank of South Africa,
Wepener Branch.

2

The
Defendant says that he mistakenly believed that the Plaintiff had
paid off his indebtedness to the Standard Bank and so did
not defend
the action. However, he says, when he received his statement from the
Bank he found that his indebtedness had not been
paid at all

This
defence amounts to a plea of causa data causa non secuta and would if
established have entitled the Defendant to succeed in
the action for
provisional sentence

The bank
statement produced by the Defendant shows that the Defendant
continued actively to operate his bank account from 20th August,
1984
to 5th March, 1985 making numerous large withdrawals and deposits and
leaving a debit balance of R13.133.62 at the end of
it all.

Plaintiff's
affidavit in reply to the application for rescission shows that on
24th May, 1984, the Plaintiff had bound himself to
the Standard Bank
as surety and co-principal debtor with the Defendant for an amount of
R14,000-00 plus interest disbursements
and costs.

A letter
dated 7th January, 1985 from Standard Bank to Plaintiff shows that he
was called upon to imple­ment his guarantee inrespect
of
Defendant's overdraft It also appears that on 5th March, 198b, the
Defendant again acknowledged himself indebted to the Plaintiff
but
this time in an amount of R21,907-65 which he undertook to pay in 21
monthly instalments of R1,000 each with a final payment
of R907-65
and commencing on 30th March, 1985 Summons had already been issued by
Plaintiff on 11th February, 1985 and subsequently
the Defendant
called on Plaintiff's attorney and signed the second acknowledgement
of debt as well as a consent to judgment in
an amount of R15,322-16
and which consent to judgment was verified by affidavit of the
Defendant.

3

Nothing
of this was made known to the Court hearing the ex parte application
In particular, the Court was not informed that the
Defendant had
signed a consent to judgment and that judgment had been granted on
that consent and not merely in default of appearance
to defend.

A non
disclosure of material fact such as this in ex parte applications,is
sufficient ground by itself. for dismissal of such application
but
closer considera­tion of all the facts of this matter lead me to
the conclusion that in any event the application should
not succeed.

The
record of the Defendant's banking activities which ho has produced
and the fact that he himself claims that he continued to
pay off his
overdraft at the rate of One Thousand Rand per month shows that he
must have known at the time when he signed the consent
to judgment
and the second acknowledgement of debt that the Plaintiff had not
paid off his overdraft

No
question arises of any need for a cession of action by the bank to
Plaintiff who was entitled to enter judgment on the consent
to
judgment on breach by the Defendant of his second undertaking. In
signing the acknowledgement of debt and the consent to judgment,
the
Defendant recognised the Plaintiff as his creditor in his own right
and as such he would have no need to obtain cession of
action from
the bank by paying the overdraft before suing the Defendant.

This
would seem to have been a necessary precaution on Plaintiff's part
since he is a perecrinus in this Court That in certain circumstances

a surety could sue the debtor before payment of the principal debt
appears from the judgment of Wessels C.J. in African Guarantee
and
Indemnity Company Ltd v Thorp 1933 A.D. 330 at 338.

4

In the
second acknowledgement of debt, the Defendant undertook to pay the
instalments of Ml,000-00 per month to Plaintiff's attorney
and not to
the Standard Bank as he claims to have done In the result the
Defendant was in clear breach of his second under­taking
and the
Plaintiff was therefore, entitled to enter judgment against Defendant
in terms of his consent to judgment. I am satisfied
accordingly that
the appli­cation for rescision must fail.

The
Plaintiff has handed in a supplementary affidavit from which it
appears that the total amount of the Defendant's indebtedness
to the
bank as at 9th July, 1985 is R10,624-33 to which amount it was
reduced by the Defendant's various payments to the bank Although
the
judgment of 9th May, 1985 must stand, I think that I should reduce
the amount thereof to M10,624-33 with interest thereon to
run from
9th July, 1985. I do so not because the judgment as already granted
was wrong but so that subsequent payments to the bank
be taken into
account and to avoid any confusion as to the amount of Plaintiff's
judgment.

The
judgment that was granted by consent is amended accordingly and the
application for rescis­sion is dismissed with costs

D.S. LEVY

ACTING
JUDGE.

17th
July, 1985.

For
Applicant Mr. Harley

For
Respondent Mr Hlaoli