Nedbank Lesotho Limited v D & P Drilling and Blasting (Pty) Ltd (CCT/0034/2021) [2022] LSHC 81 (4 March 2022)

Nedbank Lesotho Limited v D & P Drilling and Blasting (Pty) Ltd (CCT/0034/2021) [2022] LSHC 81 (4 March 2022)

The defendants failed to disclose a bona fide defence with sufficient particularity as required by Rule 28(3)(b); their assertions were bald and unsubstantiated. The agreements relied upon by the plaintiff were not superseded, the amount claimed was certified by the bank and not specifically disputed, and the 4th defendant’s denial of liability was not supported by facts. There was no contractual basis for collection commission. Service by email did not cause prejudice and was not a bar to hearing the application.

Citation
[2022] LSHC 81
Parties
Plaintiff: Nedbank Lesotho Ltd; 1st Defendant: D & P Drilling and Blasting (Pty) Ltd; 2nd Defendant: Derek Ronald Jacobs; 3rd Defendant: Neo Jeanett Tlhomola; 4th Defendant: David Ireland; 5th Defendant: BMI Group (Pty) Ltd
Court
High Court
Jurisdiction
Lesotho
Judgment Date
4 March 2022
Case Number
CCT/0034/2021
Procedural Posture
Civil / Summary Judgment Application
Outcome
Summary judgment granted in part
Legal Topics
Summary Judgment, Suretyship, Asset Based Finance Agreement, Collection Commission, Service of Process
Source Language
English
Civil Procedure Banking Law Contract Law Summary Judgment Suretyship Asset Based Finance Agreement Collection Commission Service of Process

Case Brief

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Parties

Nedbank Lesotho Ltd

Plaintiff

D & P Drilling and Blasting (Pty) Ltd

1st Defendant

Derek Ronald Jacobs

2nd Defendant

Neo Jeanett Tlhomola

3rd Defendant

David Ireland

4th Defendant

BMI Group (Pty) Ltd

5th Defendant

Procedural Posture

Civil / Summary Judgment Application

Legal Issues

  1. 1 Whether the defendants disclosed a bona fide defence to the plaintiff’s claim for summary judgment under Rule 28(3)(b) of the High Court Rules 1980
  2. 2 Whether the agreements relied upon by the plaintiff were superseded by a later agreement
  3. 3 Whether the amount claimed is correct and due

Ratio Decidendi

The defendants failed to disclose a bona fide defence with sufficient particularity as required by Rule 28(3)(b); their assertions were bald and unsubstantiated. The agreements relied upon by the plaintiff were not superseded, the amount claimed was certified by the bank and not specifically disputed, and the 4th defendant’s denial of liability was not supported by facts. There was no contractual basis for collection commission. Service by email did not cause prejudice and was not a bar to hearing the application.

Court Disposition

Summary judgment granted in part

Orders

  • Summary judgment is granted in favour of the plaintiff in the sum of M25,755,344.05 together with interest at the prime rate plus 1% per annum from 31st December 2020 to date of payment.
  • The defendant is ordered to pay the plaintiff’s costs of suit on attorney and client scale.