Ramphalla v Barclays Bank PLC and Another (CIV/APN 310 of 97) [1997] LSHC 74 (10 September 1997)

1 C I V / A P N / 3 1 0 / 97 C I V / A P N / 2 5 7 / 95 CIV/T/565/92 IN T HE H I GH C O U RT OF L E S O T HO In the matter between M I C H A EL M P H E TA R A M P H A L LA A P P L I C A N T / D E F E N D A NT and B A R C L A YS B A NK P LC D E P U TY S H E R I F F ( M r. L. Matete) 1 ST R E S P O N D E N T / P L A I N T I FF 2 ND R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M M. R a m o d i b e di on the 10th d ay of S e p t e m b er 1 9 9 7. On the 27th A u g u st 1 9 97 the Applicant filed a " N o t i ce of M o t i on - Ex P a r t e" w i th t he Registrar of this H o n o u r a b le C o u rt asking for an order c o u c h ed in the following terms: " a) T he execution a nd sale of the h o u se of the applicant/defendant, situated on plot N o. 1 2 2 9 2 - 2 85 at W h i te City to be held on S a t u r d ay 3 0 th A u g u st 1 9 97 should not be stayed p e n d i ng the outcome of an appeal in C of A (CIV No.8 of) 997). b) The 1st Respondent/plaintiff shall not be ordered to pay costs of this application in the event of opposing it. c) This Honourable Court may not grant applicant further and alternative relief, 2. That this rule operate with immediate effect as an interim order directing 1st Respondent/plaintiff as prayed at paragraph 2 (a) (sic)." On the 28th August 1997 the matter was apparently brought before my Brother Lehohla J w ho however, thanks to the diligence of the Learned Judge, declined to deal with the matter and transferred it to this Court for obvious reasons that it is this Court that delivered the judgment that has been appealed from. On the same day namely the 28th August 1997 the matter finally came before me and I reluctantly issued a Rule Nisi returnable on 29th August 1997 calling upon the Respondents to show cause why prayer (a) in the Notice of Motion shall not be granted. I specifically declined from granting prayer 2(a) of the Notice of Motion and insisted that the papers be served upon the Respondents. Amazingly when the matter was finally argued before me on the return date namely the 29th August 1997 I observed that the typed "Interim Court Order" filed of record included prayer 2 in the following words: "2 T h at this rule o p e r a te (sic) with i m m e d i a te effect as an interim o r d er directing 1st Respondent/Plaintiff as p r a y ed at p a r a g r a ph l ( a ) ." T he r e f e r e n ce to p r a y er l(a) w as o b v i o u s ly a r e f e r e n ce to p r a y er (a) of the N o t i ce of M o t i o n. W h at this t h en m e a nt w as that a false i m p r e s s i on w as created that this C o u rt h ad actually o r d e r ed that e x e c u t i on a nd sale of the A p p l i c a n t 's h o u se in question be stayed as an interim order. N o t h i ng c o u ld h o w e v er be further f r om the truth a nd in d ue c o u r se M r. L e s u t hu for the A p p l i c a nt t e n d e r ed his a p o l o g y. T he C o u rt w as certainly not a m u s e d. In A t t o r n e y - G e n e r al v D l a m i ni H o l d i n gs ( P t y) L t d. C I V / A P N / 7 / 97 - C C / 1 0 0 2 / 9 61 h ad o c c a s i on to state the following: " legal practitioners m u st a l w a ys e n s u re that the o r d e rs t h ey s e ek h a ve actually b e en granted by the court b e f o re including t h em in the t y p ed court order. By the s a me t o k en it is the responsibility of those w h o se d u ty it is to sign court orders to e n s u re that s u ch court o r d e rs a c c u r a t e ly reflect w h at the court itself actually o r d e r e d. Failure to exercise d ue diligence in this r e g a rd will often result in a miscarriage of justice as this c a se a m p ly d e m o n s t r a t e s ." 1 d e c e rn the n e ed to repeat the w a r n i n g. N or is this C o u rt a m u s ed by t he slovenly m a n n er in w h i ch this application h as b e en p r e s e n t e d. As is a p p a r e nt f r om the N o t i ce of M o t i on there is no specific prayer for a R u le Nisi as s u c h. W o r se still there is no p r a y er to d i s p e n se w i th the rules a nd m o d es of service on a c c o u nt of u r g e n cy n or is there a ny a t t e m pt to justify s u ch u r g e n cy in the f o u n d i ng affidavit itself. 1 should also mention that I w as struck by the paucity of allegations in the Applicant's founding affidavit necessary to substantiate an application for stay of execution. I think it w o u ld be fair to say that in my experience both as a practising m e m b er of the B ar and Side B ar and as a judge it is hard to recall any w o r se skeletal case than the instant one. T he w h o le case comprises of twelve (12) paragraphs of short single sentences contained in the Applicant's founding affidavit. It proves convenient to reproduce the affidavit in whole:- " 1. I am an applicant herein a m o s o t ho adult of Katlehong in the district of M a s e r u. 2. First Respondent Plaintiff is Barclays B a nk P L C, a banking institution duly registered and incorporated as such in terms of laws of the United K i n g d om and carrying on business as bankers both in the United K i n g d om and in the K i n g d om of Lesotho at K i n g s w ay M a s e r u. S e c o nd Respondent is a D e p u ty Sheriff of the H i gh C o u rt of Lesotho. 3. 4. T he facts deposed to herein are to the best of my k n o w l e d ge and belief true and correct. 5. First R e s p o n d e nt and I entered into an agreement w h e r e by it a d v a n c ed a nd lent me certain m o n i es to build a h o u se in a c c o r d a n ce with its policy. 6. On the 8th A u g u st 1991 I received a letter f r om the first defendant plaintiff purporting summarily to dismiss me f r om its e m p l oy on the g r o u n ds that I h ad e n g a g ed in an illegal strike since M o n d ay 22 July 1 9 9 1. D e f e n d a nt obtained a default j u d g m e nt against m e. 7. 8. I applied for rescission so as to be heard a nd after the matter w as a r g u ed by both sides I lost. 1 then appealed to the court of appeal in C of A ( C IV N O .8 of 1 9 9 7 ). 9. 10. I h a ve b e en informed recently that my h o u se is to be executed on the 30th A u g u st 1 9 9 7. 11. I n ow apply for stay of execution p e n d i ng the o u t c o me of the court of a p p e al case. 12. I h a ve prospects of success in that the j u d g m e nt against applicant w as erronously (sic) obtained." As is apparent f r om this affidavit no attempt w as m a de to a n n ex the g r o u n ds of a p p e al in order to enable the C o u rt to g a u ge p r o s p e c ts of s u c c e ss on appeal. Y et a m a z i n g ly on the 2 9 th A u g u st 1 9 97 w h en the matter w as a r g u ed b e f o re me M r. L e s u t hu h ad s n e a k ed in t wo " a n n e x t u r e s" w i t h o ut leave of the C o u r t. T h e se w e re A n n e x t u re " A" b e i ng a N o t i ce of sale in execution of the Applicant's h o u se a nd A n n e x t u re " B " b e i ng a photostatic c o py of the N o t i ce of A p p e a l. O n ce m o re the C o u rt d i s a p p r o v es of this u n d e r h a nd practice. I turn then to deal w i th the general principles involved in an application for stay of execution p e n d i ng a p p e a l. In this regard it is n e c e s s a ry to b e ar in m i nd the provisions of R u le 6 of the C o u rt of A p p e al R u l es 1 9 80 in the following terms:- "6 (1) Subject to the provisions of the sub-rules infra the noting of an a p p e al d o es not operate as a stay of execution of the j u d g m e nt a p p e al f r o m. (2) T he appellant m a y, at a ny t i me after he h as n o t ed an appeal, a p p ly to the j u d ge of the H i gh C o u rt w h o se decision is a p p e a l ed f r om for leave to stay execution. ( 4) On s u ch application the j u d ge of the H i gh C o u rt m ay m a ke s u ch o r d er as to h im s e e ms just a nd in particular w i t h o ut in a ny w ay d e p r i v i ng h im of his discretion m ay order: (a) that e x e c u t i on be s t a y ed subject to the appellant giving s u ch security as the j u d ge thinks fit for p a y m e nt of the w h o le or a ny portion of the a m o u nt he w o u ld h a ve to p ay if the a p p e al s h o u ld fail or ( b) refuse that execution be stayed subject to the R e s p o n d e nt giving security for restoration of a ny s um or thing r e c e i v ed u n d er e x e c u t i on or © it m ay order that execution be stayed for a specified t i me b ut that after the lapse of s u ch t i me e x e c u t i on m ay p r o c e ed u n l e ss the appellant h as w i t h in s u ch t i me furnished security for s u ch s um as the j u d ge m ay specify. ( d) T he j u d ge hearing s u ch application m ay m a ke s u ch o r d er as to costs as he m ay think fit." ( My underlining) It is clear f r om the u se of the w o rd m ay in sub-rule 4 of R u le 6 that the C o u rt h as a discretion w h e t h er or n ot to grant an application for stay of e x e c u t i on d e p e n d i ng on the c i r c u m s t a n c es of a particular case. It is trite l aw h o w e v er that s u ch discretion is not an arbitrary o ne but is o ne that m u st be r e a c h ed fairly u p on a c o n s i d e r a t i on of all relevant factors. T h us the discretion m u st be e x e r c i s ed judicially a nd not capriciously. S ee L e s o t ho Flour Mills a nd 2 others v S e h o h o a na J o h a n n es K ao ( C I V / A P N / 1 1 7 / 9 7. As this C o u rt pointed out in that case "the m a in considerations in an application for stay of execution are whether the Applicant has prospects of success on appeal as well as the balance of hardships or c o n v e n i e n c e, as the case m ay b e ." S ee also South C a pe Corporation v Engineering M a n a g e m e nt Service 1 9 77 (3) S. A. 5 34 A . D. at 5 4 5. I h a ve h ad a close look at the solitary g r o u nd of appeal in this matter. It charges that:- " T he learned j u d ge erred in holding that rule 45 (1) of H i gh C o u rt R u l es w as not applicable in the special circumstances of the matter. He o u g ht to h a ve f o u nd that j u d g m e nt in default against applicant w as erronously (sic) obtained." P e r h a ps I should p a u se here to m e n t i on that the reason w hy the Applicant claims that the default j u d g m e nt w as erroneously obtained is that he alleges he w as never served with the s u m m o ns in the matter. As against this allegation there w as a return of service filed, by the D e p u ty Sheriff alleging that the Applicant w as personally served with the s u m m o ns on the 2 2 nd February 1 9 93 a nd that the D e p u ty Sheriff e v en explained the nature a nd exigency of the matter to the Applicant at the s a me time as service. It p r o v es convenient at this stage to r e p r o d u ce the relevant p a s s a g es in the j u d g m e nt of this Court appealed from. I do so even at the risk of overburdening this j u d g m e nt in order to determine w h e t h er the Applicant is correct in alleging that the court o u g ht to h a ve f o u nd that j u d g m e nt in default against Applicant w as erroneously obtained. T h is is w h at the Court said: " A r m ed with the aforesaid return of service plaintiffs attorney then obtained default j u d g m e nt in the matter on 29th M a r ch 1 9 93 in as m u ch as there w as still no a p p e a r a n ce to d e f e nd entered by the A p p l i c a n t / D e f e n d a nt by then. As j u d g es considering applications for default j u d g m e nt invariably satisfy t h e m s e l v es as a matter of practice that defendants h a ve b e en properly served before granting such j u d g m e nt against t h em I am of the v i ew that the learned j u d ge w ho granted the default j u d g m e nt in this matter w as fully alive to the aforesaid return of service of 2 3 rd February 1 9 93 a nd w as fully justified in relying u p on it. I find that the said return of service w as in fact p r i ma facie p r o of of service. In fairness to M r. M da he c o n c e d ed as m u c h, as indeed he w as obliged to in the c i r c u m s t a n c es of the case. M r. M da submits h o w e v er that the learned J u d ge w ho granted default j u d g m e nt w as u n a w a re that at the time he did so the Applicant/Defendant h ad not in fact b e en served with s u m m o ns in the matter as alleged by the D e p u ty Sheriff. C o n s e q u e n t ly he submits that the default j u d g m e nt in the matter w as erroneously g r a n t e d" in the a b s e n ce of the A p p l i c a n t / D e f e n d a nt h e n ce a reliance u n d er R u le 45 (1) of the H i gh C o u rt R u l es in this application. T he t e rm " e r r o n e o u s ly granted" w as defined by W h i te J in N y i n g wa v M o o l m an N o. 1 9 91 in S. A. 5 08 at 5 10 in the following t e r m s: "It therefore s e e ms that a j u d g m e nt h as b e en erroneously granted if there existed at the t i me of its issue a fact of w h i ch the j u d ge w as u n a w a r e, w h i ch w o u ld h a ve p r e c l u d ed the granting of the j u d g m e nt a nd w h i ch w o u ld h a ve i n d u c ed the j u d g e, if he h ad b e en a w a re of it, not to grant the j u d g m e n t ." I am in respectful a g r e e m e nt with this j u d g m e n t. It is also correct in my v i ew that o n ce the court c o m es to the c o n c l u s i on that j u d g m e nt w as erroneously granted in the a b s e n ce of a ny party affected thereby then an applicant n e ed n ot establish, in addition, g o od c a u se for the rescission w i n ch m u st be granted without a ny further enquiry. T o p ol a nd O t h e rs v L . S. G r o up M a n a g e m e nt S e r v i ce ( P t y) L t d. 1 9 88 in S. A. 6 39 T he crisp question for determination in the c a se before me as I s ee it, therefore, is w h e t h er the default j u d g m e nt granted on 29th M a r ch 1 9 93 as aforesaid w as erroneously granted within the m e a n i ng of R u le 45 ( I) of the H i gh C o u rt R u l e s. In this regard I h a ve already f o u nd that the return of service dated 2 3 rd F e b r u a ry 1 9 93 u p on w h i ch the default j u d g m e nt w as based w as p r i ma facie p r o of that the Applicant/Defendant w as served with the s u m m o ns in the matter. In Doti Store v Herschel F o o ds (Pty) Ltd. 1 9 8 2 - 84 L L R 3 38 at 3 39 M o f o k e ng J (as he then w a s) h ad this to say following D e p u ty Sheriff W i t w a t e r s r a nd v G o l d b e rg 1 9 05 T. S. 6 8 0 .- " M o r e o v e r, the return of a sheriff or authorised person to perform his function is prima facie evidence stated therein. T he clearest evidence m u st be a d d u c ed if it is disputed." I respectfully w i sh to adopt these r e m a r ks in the present matter a nd it is u p on that basis that I proceed then to determine w h e t h er the Applicant/Defendant h as succeeded, on a balance of probabilities, to rebut by clearest a nd m o st satisfactory evidence the presumption that he w as in fact served with the s u m m o ns in the matter. see H e r b s t e in a nd V an W i n s e n: T he Civil Practice of the S u p e r i or C o u r ts in S o u th Africa: 3 rd Edition p . 2 2 3. S ee also P e n u ry Sheriff W i t w a t e r s r a nd v G o l d b e re ( s u p r a) at p 6 84 w h e re S o l o m on J put the principle succinctly in the following w o r d s: "It is, I think, clear, in the first place, that if the return c an be i m p e a c h ed it c an only be i m p e a c h ed on the clearest a nd m o st satisfactory evidence." In my j u d g m e nt the o n us of proof is on the applicant/Defendant in that regard. The Applicant/Defendant avers as follows in paragraph 5 of his founding affidavit:- "5.1 Further to exacerbate my position and more severely to prejudice my case, I only became aware that default judgement was obtained by First Respondent Plaintiff against me when I saw a Notice of Sale in Execution in the press (Lesotho Today) two weeks ago stating that my house would be put up for public auction on Saturday 29 July 1995, as a result of which Notice I directly proceeded to the Chambers of the Registrar of the High Court ascertain what had happened. 5.2 5.3 5.4 I discovered that summons and various writs i.e. Notice of Attachment and Writ of Execution were alleged to have been served on me; but in fact I was never served with any process. A copy of a return of service of civil process which I obtained from the Registrar's Chambers bears a stamp of approval dated 31/01/94 and the name of the Deputy Sheriff appearing thereon is that of Mr. L. Matete w ho in his description of the house states that the house has two bedrooms while in fact there are three bedrooms in that house. I beg leave to annex this copy and mark it Exhibit 2. It seems rather incongruous that the default judgment was entered by the Registrar on 3 M ay 1993 as also the Writ of Execution, but the Writ of Attaclument was entered by the Registrar on 30 November 1993. The significance here is that the Writ of Attachment indicates that judgment was obtained on 29th March 1993, for what it is worth. The point that I wish to make under this paragraph 5 in all its sub-paragraphs is that the balance of probabilities suggests that the default judgement seems from a careful perusal of the Registrar's records to have been obtained fraudulently especially for the reason that I was never served with any papers whatsoever." I observe straight away that the Applicant/Defendant makes a bare denial that lie was ever served with the summons in the matter. He has not filed any supporting affidavit in so far as the question of service or lack thereof is concerned. He does not give particulars from which the court can determine the issue such as his whereabouts at the time of the alleged service on 23rd February 1993; whether he was outside the country or not or generally w hy he could not have been served with the summons as alleged. Be that as it may it is significant that the allegations by Applicant/Defendant are denied in paragraph 9 of the opposing affidavit of V e m on Kennedy w ho deposes therein as follows: "9. RE P A RA 5.1 I take the greatest exception to an allegation of the nature which is n ow being made. With the greatest of respect, the Applicant/Defendant is lying when he indicates to your Lordship, under oath, that he only became aware that the Default Judgment was obtained when he saw the Notice of Sale in Execution in the Press, two weeks ago. As has been exhaustively pointed out to your Lordships elsewhere, the Deputy Sheriff properly served the S u m m o ns on the Applicant/Defendant personally and the house which forms the subject matter of the dispute has been advertised for public auction previously. RE P A RA 5.2 Again, the contents of this sub-paragraph are not true. There is no doubt that the Defendant has been personally served (he Summons and he is perfectly aware of the Judgment against him. It is irrelevant that the Registrar's stamp bears an approval date 31st January 1994. The fact of the matter is that the Deputy Sheriff has attempted to execute a Warrant of Execution against Movables, the return of which is a Nulla Bona Return and clearly, the Applicant/Defendant must have been aware of the Judgment against him since 1993. AD P A RA 5.3 The contents of this sub-paragraph are noted but are irrelevant and argumentative in nature. AD P A RA 5.4 I deny that the Default Judgment could have been obtained by fraud. This is an outrageous suggestion and is a slur on the professional integrity of the Bank's Attorneys and is rejected with the contempt that it most manifestly deserves." I find it extremely significant that in his replying Applicant/Defbndant does not deal with the aforesaid paragraph 9 of the opposing affidavit of V e m on Kennedy. He does not deny the serious allegations contained therein to the effect that he was "properly" and "personally" served with the Summons. In the circumstances I find that this is a fit case where the version of the Respondent should be preferred to that of the Applicant in accordance with the principle laid down in Plascon - Evans Paints v can Riebeeck 1984 (3) S. A. 623 (At See also National University of Lesotho Students Union v National University of Lesotho and 2 others C of A ( C I V ) N O . 1 0 of 1990. In my judgment the subsequent conduct of (lie Applicant/Defendant after the default judgment was granted in the matter is also important in determining whether he was served with the summons and thus took a deliberate decision not to defend the action. In this regard V e m on Kennedy deposes in paragraph 4 of his opposing affidavit that after judgment was obtained against the Applicant/Defendant a series of meetings and correspondence took place in which the latter attempted to settle payment of the judgment debt. Such meetings and correspondence were between Applicant/Defendant and 1st Respondent/Plaintiffs attorneys as well as Lesotho Bank and Lesotho Building Finance Corporation. Once more it is significant that Applicant/Defendant does not deny the contents of paragraph 4 of the opposing affidavit of V e m on Kennedy. He does not deny that during the course of his negotiations for settlement as aforesaid he even at one stage agreed to sell the house in question to one Mr. Sello by private treaty and that 1st respondent's attorneys wrote him a letter Annexture " G l" requesting him to sign an affidavit authorising them to sell the property. This was on the 4th M ay 1994. In particular the Applicant/Defendant does not deny that on 8th June 1994 the 1st Respondent/Plaintiffs attorneys wrote him a letter Annexture " L" which reads as follows:- "For the attention of Mr. Mike Ramphalla White City Maseru SCH/mn/B878 RE: B A R C L A YS B A NK P LC VS Y O U R S E LF - CIV/T/565/92 We refer to the above mentioned matter and confirm the following: (1) that on the the (sic) 7th M ay 1994 you called at our office, and together with Mr. Sello, agreed that you would sell to him your property known as Plot No. 12292-285, White City, Maseru, by private treaty for the sum of M75,000.00 and that such funds would be paid to Barclays Bank P LC in reduction of your indebtedness to them. We accordingly enclose, herewith, a copy of the Deed of Sale which we have drafted for your perusal. Should you find this Deed in order, we shall attend upon you in order that the original Dees of Sale, together with the transfer documents may be signed by you so that this matter may proceed. We trust that this will not inconvenience you in anyway during your illness. Yours faithfully H A R L EY A ND MORRIS." There is again the aspect of the various writs of execution in the matter. It is not seriously disputed that on the 12th April 1993 the 1st Respondent's attorneys issued a writ of execution against Applicant/Defendant's movables. The response to this was a nulla bona return of service filed by the Deputy Sheriff on the 28th October, 1993. Then followed a writ of execution against Applicant/Defendant's immovable property on 12th November 1993. The return of service thereof was filed on 31st January 1994 and it reads:- "In the High Court of Lesotho at Maseru CIV/T/565/92 In the matter between Barclays Bank and M M. Ramphalla Plaintif/Applicant Defendant/Respondent I. L. Matete Deputy Sheriff of the High Court of Lesotho and such as entrusted with the service of the court processes state that:- Copy of the writ was served upon the defendant personally and I attached 1 residential house - Description of the house:- 1 Kitchen, ] dinning room, 1 toilet room, two bed rooms." The service is alleged to have been ejected on 28th January 1994. As earlier stated I consider that the return of service by the Deputy Sheriff is prima facie proof that the Applicant/Defendant was served with the aforesaid writs of execution. It is further significant that the property in question was duly advertised for sale in a local newspaper and in the Government Gazette on the 7th M ay 1994 in terms of Annextures " E" and "F" respectively. Nor does the Applicant/Defendant deny the material allegation in paragraph 4 of Vernon Kennedy's opposing affidavit that because of the negotiations between the Applicant/Defendant and 1st Respondent/Plaintiff the latter's attorneys "accordingly cancelled the Sale which was due to take place on the 6th of M ay 1994 by addressing a letter to the Registrar of the High Court." Annexture "I" to the following effect:- "The Registrar The High Court Maseru Dear Sir 6th M ay 1994 RE: BARCLAYS B A NK PLC VS M in RAMPHALLA - CIV/T/565/92 - SALE OF PLOT NO. 12292-285 BY PUBLIC AUCTION ON SATURDAY 7TH M AY 1994. We respectfully refer to the above mentioned matter and wish to advise that the Defendant has agreed to the sale of the above mentioned property by private treaty. We therefore advise you that we wish to cancel the sale by public auction tomorrow. By copy of this letter, we shall inform the Messenger involved, Mr. Matete, of the cancellation of the sale. Yours faithfully H A R L EY A ND MORRIS C. C. Mr. Matete Received a copy hereof this 6th day of May 1994. MR. MATETE." In the circumstances therefore I find that the evidence is indeed overwhelming on probabilities that the Applicant/Defendant was aware of the default judgment in the matter as far back as 1993. I reject as false therefore his allegation that he only became aware of the default judgment on 29th July 1995. I also find that at no stage since becoming aware of the default judgment in 1993 or at any time thereafter did the Applicant/Defendant ever raise the issue that he was never served with summons in the matter. The first time he raised this issue was in July 1995 when he filed the present application for rescission. I am of the view that if he had not been served with the summons at all he would have certainly raised the issue at an early stage. As it is the Applicant/Defendant has waited for about two years to raise this issue. In my view this is a factor which the court is entitled to take into account against the Applicant/Defendant in the matter. In all the circumstances of the case therefore I have come to the conclusion that the Applicant/Defendant was properly served with summons in the matter and that consequently the default judgment granted against him on 29th March 1995 was not erroneously granted. That being so this application must fail." Viewed against the above mentioned background I apprehend that there can be no doubt but that the Applicant failed dismally to rebut by clearest and most satisfactory evidence the presumption that he was in fact served with the summons in the matter. See Deputy Sheriff Witwatersrand v Goldberg 1905 T. S. 680 at 684 That being the case I find that the Applicant's ground of appeal that this Court "ought to have found that judgment in default against applicant was erronously (sic) obtained" is both misconceived and indeed preposterous. By the same token and in the particular circumstances of the case I find that there are no prospects of success on appeal. I have also considered the timing of this application against the Applicant in this matter. In doing so I observe that the judgment of this court appealed from w as delivered on the 5th February 1997. The Applicant sat back and did nothing until the very last day on which the six weeks period within which to note an appeal expired namely the 19th March 1997 when he filed an appeal with the Registrar of this Court. Bearing in mind the aforesaid Rule 6(1) of me Court of Appeal Rules 1980 to the effect that the noting of an appeal docs not operate as a stay of execution of the judgment appealed from it was, in my view, incumbent upon the Applicant to m a ke a timeous application for stay of execution. Yet he once more sat back and did nothing until apparently a notice of sale of his house was published in the newspapers in July 1997. Even then he conveniently hides the exact date on which he became aware of the sale hiding behind the expression "I have been informed recently that my house is to be executed on the 30th August 1997." Nor is the Court amused by the fact that there is absolutely no explanation for the delay in making the application. In all the circumstances I have considered the Applicant's application as amounting to nothing more than delaying tactics to the prejudice of the Respondent/Plaintiff w ho has waited for execution of the judgment in its favour since the 29th March 1993. I am satisfied that to accede to Applicant's request would no doubt bring the court into disrepute in the particular circumstances of this case. The principle justice delayed is justice denied is certainly not an empty slogan. There is again the aspect that the Applicant has no bona fide defence to the claim by the Respondent/Plaintiff. I have considered this factor against the Applicant. This is so because in paragraphs 3 and 4.8 of his founding affidavit to the original application under Rule 45 the Applicant deposes as follows:- "3. First Respondent and I entered into an agreement whereby it advanced and lent me certain monies to build a house in accordance with its policy. 4.8 I strongly contend further that it is this purported unlawful dismissal that has frustrated me and rendered it impossible for me to meet my obligations under the loan agreement I had entered into with First Respondent/Plaintiff to enable me to build my house." As this Court pointed out in its judgment appealed from the fact that the Applicant is unable to meet his financial obligations merely because he was allegedly dismissed unlawfully by Respondent/Plaintiff from work is no defence to the latter's claim in the matter. Before I close this judgment I would like to add a few observations namely that this case has been slackly presented and that the Applicant was obviously poorly if not ill advised both in the intended appeal and in the instant application. It must be stressed that an application for stay of execution pending appeal is not just there for the mere asking as the Applicant appears to think (or is it his counsel?). The Applicant must set out a full explanation for the delay in making the application if such be the case and he must also state whether there are prospects of success on appeal and give reasons for such a conclusion. In my view it is not enough for the Applicant, as in this case, to merely m a ke a bare unsubstantiated allegation that there are prospects of success and rest. In the result I have c o me to the conclusion that the Applicant has failed to m a ke out a case for the relief sought in the Notice of Motion. Accordingly the application is dismissed with costs. M M. Ramodibedi JUDGE 10th September 1997 For Applicant : Mr. Lesuthu For Respondents : Mr. Malebanye