Boliba-Multi Purpose Cooperative Society v Sejanamane (CCT 85 of 2009) [2010] LSHC 10 (25 June 2010)

CCT 85 of 2009 IN THE HIGH COURT OF LESOTHO (Commercial Division) In the matter between: BOLIBA-MULTI PURPOSE COOPERATIVE SOCITY PLAINTIFF And PROFESSOR MAFA SEJANAMANE DEFENDANT Hearing date: 31st of May 2010 JUDGMENT Delivered by the Honourable Mr. Acting Justice J. D. Lyons On the 25 th day of June, 2010 The plaintiff co-operative loaned to the defendant the sum of M 310,000 in August 2008. The defendant defaulted in the loan repayments. By summons filed 16th of March 2009, the plaintiff commenced action against the defendant for M 360,792.65 then owing. The defendant was served in accordance with the rules of court by service on adult person (his house helper) at his place of residence. No defence was filed. On 25 June 2009 the plaintiff obtained judgment by default. Pursuant to a writ of execution dated 29th of June 2009, the deputy sheriff moved to execute on the defendant's property. The defendant was surprised. He claimed to be unaware of the proceedings as he had been in South Africa when his house helper was served. Be that as it may, the defendant, conceding his indebtedness, commenced negotiations with the deputy sheriff. He was trying to find a way out of his dilemma. The deputy sheriff appears to have put execution on hold provided the defendant made some arrangements suitable to the plaintiff's lawyers for the payment of the judgment debt. The defendant failed to satisfactorily negotiate a settlement. Consequently the deputy sheriff had no option but to proceed. The defendant then brought an urgent motion before the court for a rule nisi staying execution and setting aside the default judgment. A temporary interdict was issued. The date of a notice of motion was 9 March 2010. The temporary interdict (ex parte) was granted on 16 March 2010. I am discharging the rule nisi. Firstly the notice of motion should not have been brought as a matter of urgency. The defendant was aware of the judgment from June 2009. The only reason for any urgency was that the defendant had attempted to negotiate a settlement but had failed. He failed because he could not pay. Secondly the motion should not have been brought ex parte. The defendant knew who represented the plaintiff and service on the plaintiff's lawyers of record was a simple exercise that the defendant should have undertaken. An ex parte application should only be made if genuinely urgent and where service on the opponent cannot be affected, or if affected, the defendant will take action to remove the spoils of victory from the reach of the court. None of these was apparent here. Thirdly, as the defendant seeks to resend the default judgment, he must show either a procedural irregularity and/or a bona fide defence. The defendant does neither. There was no procedural irregularity -- although one was originally argued but was later abandoned. It was misconceived. As to a bona fide defence, the defendant accepts his indebtedness but floats a vague argument that the plaintiff has miscalculated the amount owing and/or charged compound interest. It is well settled law that an applicant seeking to rescind a default judgment must present sufficient material to the court to enable the court to examine the proposed defence and determine the merit of it, at least to the extent that, if supported by the proper evidence at trial, the proposed defence presents as having some prospects of success. The defendant just threw out a number of bald assertions that the plaintiff has miscalculated. No counter calculation was given. The same applies to his assertion that compound interest was charged. No actuarial calculation was presented. The defendant also argued that the account was improperly numbered. This was obviously a typographical error by the plaintiff. The defendant has no defence. His application was improperly brought and was brought for the purposes of delay. The rule nisi granted ex parte on 16 March 2010 is discharged. The plaintiff has shown sufficient cause. The plaintiff is entitled to its costs to be taxed if not agreed. J. D. LYONS JUDGE (AGT) For the Plaintiff For the defendant : : Mr. Mpaka Ms. Khiba.