CIV/APN/241/85

IN THE
HIGH COURT OF LESOTHO

In the
application of:-

ANACTLETUS
N. LEUTA Applicant

Vs

TAB -
CONSULT (PTY) LTD Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 8th day of June,
1987.

This is
an application for rescission of a default judgment granted in
CIV/T/138/86 and for stay of execution in the said case and
for costs
of suit,

On the
8th June, 1987 I dismissed the application and indicated that reasons
for judgment would follow at a later stage.

In his
founding affidavit the applicant deposes that on the 17th July, 1986
the deputy sheriff served a writ of execution in CIT/T/138/86
on his
wife at their home. He avers that to the best of his knowledge and
recollection he had never been served with any summons
or a letter of
demand preceding CIV/T/138/86 and was therefore not in default in any
manner.

2

The
applicant further deposes that he has reasonable prospects of success
in the matter in that although an agreement was signed
between him
and the respondent, the condition precedent to payment of any amount
was not fulfilled by the respondent, which was
to obtain a loan for
the applicant from a Bank; secondly, the draft memorandum which was
to be prepared by the respondent had not
been approved by the proper
authority; and, thirdly, the respondent repudiated the contract
verbally when he could not obtain a
loan for the applicant.

In its
opposing affidavit deposed to by one P.K. Tabirih who is its managing
director, the respondent avers that from the onset
of the transaction
between itself and the applicant which forms the subject matter of
the dispute in CIV/T/138/86 the applicant
introduced one Lesojana
Francis Leuta, an employee of the Central Bank, Maseru, as his agent
for purposes of the transaction in
question. The applicant held out
the said Lesojana Francis Leuta as applicant's agent through whom he
would communicate with him,
and gave Lesojana's business address at
the Central Bank, Maseru, as that at which all correspondence and
communications from it
to the applicant regarding the transaction
should be directed. Accordingly the summons and the declaration in
CIV/T/138/86 were
served on Lesojana Francis Leuta on the 3rd March,
1986 at the Central Bank address, and to respondent's knowledge the
said Lesojana
Leuta brought the summons to applicant's attention.
Referrence was made to the deputy sheriff's return of service which
clearly
shows that Lesojana Leuta accepted the summons. The letter of
demand was sent to the applicant through his address and agent at
the
Central Bank.

Regarding
the loan the respondent deposes that it was never a condition
precedent to payment of any amount under the agreement between
the
parties that respondent was to obtain a loan for applicant from a
bank.

3

He refers
to clause 5 of the agreement and the relevant part reads as follows:-

"The arrangement for the financing of the project by L.A.D.B.
shall be between the orderer and the LADB' based upon the technical

proposals compiled by TAB CONSULT on behalf of the orderer."

The
respondent further deposes that in terms of clause 5 of the agreement
between the parties the drawing up of the proposal had
nothing to do
with the amount of M4,000-00 claimed in CIV/T/138/86. The amount was
to be paid to enable respondent undertake the
necessary engage­ments
forming the basis of the proposal. Clause 6 of the agreement reads as
follows:-

"Immediately upon the signing of this agreement, the "Orderer"
shall pay to TAB-CONSULT an amount of M4,000 (four
thousand Maloti
ONLY) being an amount to cover all costs involved in collection of
appropriate data, tentative designs, plans,site
visits etc., final
proposals plus the corresponding cash flow of the total project which
in torn shall be submitted to the LADB
on behalf of the "orderer"
for the award of the financing reffered to in point 5. of this
agreement."

In his
replying affidavit the applicant denies that he ever appointed
Lesojana Francis Leuta of Central Bank as his agent.

It is
surprising that none of the parties decided to obtain an affidavit
from Lesojana Francis Leuta to inform the Court as to how
he dealt
with the summons after it was served upon him by the deputy sheriff.
The return of service clearly shows that Lesojana
accepted the
summons and the question is what he did with them. Lesojana Leuta
signed the agreement

4

between
parties as a witness; he again signed as a witness the letter
(Annexure B to the summons) which was written to the respondent
on
the 1st April, 1985 giving the respondent the order to execute the
project and acceptance by the applicant of the project price
of
M60,000-00. It is also significant that in the letter the applicant
used the Central Bank address as his address. It is altogether

improbable that Lesejana Francis Leuta could received the summons on
behalf of the applicant and merely ignore it and fail to deliver
it
to the applicant who is his relative. He had been involved in the
agreement right from the onset and knew very well what he
had to do
with the summons. The probabilities are in favour of the respondent
that Lesojana delivered the summons to the applicant.
There is no
doubt that the applicant chose the Central Bank his address as
appears from Annexure B.

The next
important question is whether the applicant has a bona fide defence
to the respondent's claim. The onus was on the applicant
to make
averments which, if established at the trial, would entitle him to
the relief asked for. The applicant has misinterpreted
clause 5 of
the agreement whose terms are unambiguous. According to clause 5 it
is the applicant who has to approach LADB to apply
for a loan. The
terms of clause 5 are so clear that even a layman can easily
understand then, I fail to understand where the applicant
got the
idea that the respondent must apply for a loan on his behalf because
clause 5 clearly states that the "orderer"
shall apply for
the loan and according to the agreement the applicant is the
"orderer".

The
applicant has also misunderstood clause 6 of the agreement. It states
in clear terms that "Immediately upon the signing
of this
agreement, the "Orderer" shall pay to TAB - CONSULT an
amount of M4,000-The agreement was signed on the 1st April,
1985 and
it is common cause

5

that up
to the 5th March, 1986 when the summons was issued by the Registrar
of the High Court, the applicant had not paid the amount
agreed upon.
Clause 6 sets out that the money was for costs that the respondent
would incur in the collection of data, designing
of a plan site,
visits to the site etc. The respondent performed its part of the
contract and prepared the technical proposals.
Whether or not these
proposals will be accepted by LADB is irrelevant as far as payment of
the amount of M4,000-00 is concerned.
The money ought to have been
paid immediately upon the signing of the contract on the 1st April,
1985.

For the
reasons stated above I came to the conclusion that it is improbable
that the applicant did not receive the summons and that
he has no
bona fide defence to the respondent's claim and that the application
was lodged with the sole purpose of delaying the
execution of
judgment.

The
application was dismissed with costs.

J.L.
KHEOLA

JUDGE.

15th
June, 1987.,