CIV/T/107/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

VODACOM
LESOTHO (PTY) LTD PLAINTIFF

and

MPHO
NKONE DEFENDANT

JUDGMENT

Delivered
by the Honourable Mrs Justice A.M. Hlajoane on 9th May. 2005.

The
Plaintiff, Vodacom Lesotho (Pty) Ltd (VCL) issued summons against the
defendant for payment of M135, 170.08 with interest at
the rate of
18.5% per annum. In the said summons, Plaintiff alleges that he had
appointed Defendant as its vodashop manager to
inter alia, market,
sell and promote the Plaintiffs cellphone equipment as well as
prepaid products and services.

It was a
condition of their agreement that Defendant would pay Plaintiff
within 30 days of receipt of being invoiced by the latter
for payment
of products supplied and/or services rendered to the former.

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That the
Defendant was indebted to the Plaintiff in the amount as reflected
above.

The
summons was duly served on the Defendant on the 24th February, 2004
who filed his notice of appearance to defence on 2nd March,
2004. In
terms of Rule 22 (1) the Defendant was allowed 21 days within which
to file or deliver his plea, or an application for
further
particulars to the declaration, or an exception or an application to
strike out portions of the declaration.

The
Defendant did neither of the above, instead requested for further
particulars on the 29th March, 2004, some nine days after
the period
allowed by Rule 22 (1) i.e. 21 days. The Plaintiff upon receipt of
that request for further particulars, ignored same
and served the
Defendant with notice to file plea within 3 days on the 5th April
2004. This it would seem was in terms of Rule
27 (3) of the High
Court Rules.

The
Defendant has thus failed to file his plea and the three days period
has lapsed. Plaintiff has set the matter down for default
judgment.
It would be worth mentioning at this stage that counsel who appeared
for the Defendant was only standing in for Mr Sekonyela
whom the
Court was informed was engaged before another Court.

When
counsel was asked as before whom Mr Sekonyela was appearing, he was
not in a position to say. This was not the first time that
there was
counsel who only was standing in for Mr Sekonyela for postponement
only without even knowing what the case was all about.

On the
22nd April, 2005 Mr Mpopo appeared before me in this case standing in
for Mr Sekonyela. He too had just been sent to come
and postpone to
today with costs for that day to the Plaintiff. It appears that Mr
Sekonyela is not taking this matter seriously.
He is playing truant
and does not wish to see the matter reach finality. Plaintiffs
counsel objected to Defendant being granted
the second postponement
for no justifiable reasons.

The
matter is before me for default judgment. The Defendant filed his
request for further particulars out of time, and Rule 25 (3)
of the
High Court Rules specifically provides that:

"...................... But the request alone, unless and until
a

reply is received shall not be considered to be a pleading. "

In his
decision in the case of Ramollo v Goetsch CIV/T/45/85 (unreported)
Kheola J (as he then was) stated that "the Plaintiff
was under
no obligation to reply to a request that was out of time. That
Plaintiff was only bound by the Rules of Court where the
request was

4

made
within twenty-one (21) days allowed by the Rules." The facts of
that case were similar to the present in that the request
for further
particulars was files out of time and the Plaintiff decided to ignore
that request but filed notice to file plea.

The
Defendant in his affidavit in his Application for condonation of late
filing of plea and dismissal of Application for default
judgment
stated that the Plaintiff had not issued him with the notice of bar
in terms of the Rules. The Defendant did not find
it fit to clearly
state what Rule he was relying on. To be just saying in terms of the
Rules would mean the Court having to do
the spade work for him in
ascertaining the relevant Rule applicable. But be that as it may, I
have never come across any High Court
Rule which would require that
there still has to be a notice of bar filed after a request to file
plea had been made. Even the
notice filed by the Plaintiff was very
clear in that it clearly stipulated that if after three (3) days of
the request to file
plea there is no such a plea filed the Defendant
shall be barred automatically from pleading. Rule 27 (3) states:-

".................. When the defendant is in default of entry of

appearance no notice to him of the application for judgment shall be
necessary but when he is barred from delivery of a plea not
less than
three days notice shall be given to him of the date of the
application for judgment, "

5

The
Plaintiff was thus quite entitled to have requested for default
judgment under the circumstances of this case, he was justified
in
having ignored the request for further particulars filed out of time
as the request alone could not be considered to be a pleading,
Rule
25 (3). There was no need for Plaintiff to have yet filed a separate
notice of bar after he had filed notice to file plea
and in it
specifying that if there was no plea after the lapse of three days
(3) he was automatically barred from pleading.

Because
the Defendant failed to file plea on time and filed request for
further particulars out of time, the Plaintiff had correctly
set the
matter down for default judgment. Judgment is thus granted by default
in terms of prayers (a), (b) and (c) of the summons
as prayed.

1. M.
   HLAJOANE

   
   

JUDGE

For
Plaintiff: Mr Mpobole

For
Defendant: Mr Sekonyela