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Mothelesi v L.C.S. Wholesalers [1996] BWCA 59; (1992) (Pty) Ltd (Civil Appeal No. 40 of 1995) [1996] BWCA 2 (1 January 1996)

IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Civil Appeal No. CA 40/95 High Court Misca No. 82/94
In the matter of:
TSHIPIETSILE MOTHELESI   Appellant
and
L.C.S. WHOLESALERS (1992) (PTY) LTD Respondent
Mr. I. Pie for the Appellant
Mr. S. Mutoriti for the Respondent
JUDGMENT
Delivered on     1996
CORAM: LORD N. WYLIE J.A. J.H. STEYN J.A. G.G. HOEXTER J.A.
HOEXTER J.A.
In what follows I shall refer to the respondent in this appeal as "the plaintiff" and to the appellant as "the defendant." On 5 May 1993 the defendant signed an Acknowledgement of Debt ("the first A/D") in which he acknowledged himself to be lawfully indebted to the plaintiff in the sum of P333,161.35 in respect of goods sold and delivered to him by the plaintiff during the year 1992. In the first A/D the defendant undertook (1) to effect payment by way of five initial instalments as follows: P15,000 on 20 April 1993; P10,000 on 30 April 1993; P7000.00 on 7 May 1993; P7000.00 on 14 May, 1993; P5000.00 on 21 May 1993; (2) to pay the full balance, by way of lump sum payments, on or before 3 0 June 1993; and (3) to pay

2
interest on the amount outstanding at the rate of 10% per annum.
The defendant defaulted with the payments he had undertaken
to make in the first A/D. On 3 March 1994, and in the High Court
at Lobatse, the plaintiff instituted an action for provisional
sentence against the defendant. In the summons the defendant was
cited as -
"TSHIPIETSILE MOTHELESI of P.O. Box 10, TSABONG t/a TSABONG CASH STORE.
The summons claimed payment of P204,161.35, with interest
thereon at the rate of 10% per annum from 31 March 1993, in
respect of goods sold and delivered, and which amount the
defendant acknowledged to be owing -
"by signing an Acknowledgement of Debt dated 5th May 1993, a copy of which document is annexed hereto marked VA'."
On 19 April 1994 the provisional sentence summons was served on the defendant's wife. The plaintiff's action was not opposed and on 29 April provisional sentence against the defendant was granted as prayed with costs.
The judgment debt was not paid by the defendant and on 19 May 1994 the plaintiff issued against the defendant a writ of execution in respect of movable property. On 10 June 1994 the Deputy Sheriff for the district of Gaborone proceeded to Tsabong where he attached movable goods of the defendant. The Deputy Sheriff did not, however, remove the goods so attached.
On 13 July 1994 attorneys Monthe Marumo & Co, sent a letter
in the following terms to the plaintiff's attorneys:-
"We advise that we act on behalf of Mr. Mothelesi. Client has brought to us the provision [sic] sentence summons issued against him at your client's instance.

3
Unfortunately it was bought [sic] to us after judgment had been obtained.
Although it is our view that the summons is excipiable as not disclosing a cause of action, and further that your judgment was erroneous sought and erroneously granted we are under instructions to propose settlement of the amount owing by way of instalment of P10, 000.00 per month commencing from the date hereof. Our client's first cheque for P10,000.00 is enclosed herewith.
We are to point out further that the amount sued for and in respect of which your client has obtained judgment is in fact wrong. We shall be furnishing you with your proof of other payments made as soon as we have received them from the accountant."
Some four months after judgment had been granted against the defendant and some three months after the attachment of his goods, the defendant on 5 September 1994 signed a further Acknowledgement of Debt ("the second A/D"). Its terms are significant and it is necessary to recite them in full:-
"I, the undersigned
TSHIPIETSILE MOTHELESI
do hereby acknowledge my total indebtedness to LCS Wholesalers (1992) (Proprietary) Limited. The total balance on the Capital to date is P154,161.35.
I undertake to effect payment in full in the following manner:
I undertake to pay all interests thereon calculated on
the capital at the rate of       reckoned from  
pending payment I will hand over the
Blue Books of my vehicles namely:
BH 5 - Toyota Hilux
BH 1005 - Trailer
BH 843 - Toyota Land Cruiser
BH 134 - Hino Truck
The other Blue Books shall be held at Heifer & Company pending payment in full of my total indebtedness to LCS Wholesalers (1992) (Proprietary) Limited.
I undertake to pay all costs and collection commission

4
incurred. I confirm the acknowledgement made by me on the 5th May 1992 [sic] in as far as they are not contradicting to this acknowledgement and should be read together as far as needs be."
Almost a year after his attachment on 10 June 1994 the
Deputy Sheriff again proceeded to Tsabong on 8 June 1995 and on
this occasion he removed the goods earlier attached by him. On
the following day, 9 June 1995, and at Lobatse, the defendant
launched an urgent application on notice of motion for an order
calling on the plaintiff to show cause on 23 June 1995:-
" (a) why the provisional sentence judgment granted against the defendant on 29 April 1994 should not be rescinded;
(b)    
why the sale of execution pursuant thereto should not be rescinded;
(c)    
why the goods attached should not be restored to the defendant;
(d)    
why the plaintiff should not pay the costs of the application."
The application for rescission was resisted by the plaintiff on whose behalf several opposing affidavits were filed. Having heard argument on the matter the learned Judge (Lesetedi Ag. J) in the Court below on 12 October 1995 discharged the rule nisi with costs.
On 2 November 1995, a day before the defendant's attached goods were to be sold in execution, the defendant noted an appeal to this Court against the whole of the judgment of the Court a quo. I proceed to consider the merits of the appeal.
The defendant's founding affidavit in his abortive application for rescission of the provisional sentence judgment is a lengthy and rambling document. In the course of it the

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defendant describes the plaintiff's action as "wrong, unlawful
and malicious." The defendant says that, as far as his
calculations go, he has paid the plaintiff P345,974.55, and he
points out that this sum far exceeds the amount of the first A/D.
He maintains that he has "a very strong counterclaim" against the
plaintiff.
In paragraph 17 of his founding affidavit the defendant
states:-
"The first I got to hear of the matter was on the 10th June 1994 wherein I received a Notice of Attachment indicating that I was indebted to the Plaintiff/Respondent for the sum of P204, 161.35. I strongly do not know how this amount was made up and how it was reached."
Despite its great length, what leaps to the eye at once is that the defendant's founding affidavit remains silent in regard to two very significant matters. First, the defendant fails entirely to explain why it was that he first heard of the judgment on 10 June 1994 despite the fact that the summons had been served on his wife four weeks before that date. To make matters worse, the defendant files no affidavit by his wife in this connection. Second, the defendant has sedulously avoided making any reference to or explaining why on 5 September 1994 he signed the second A/D in which he admitted indebtedness to the plaintiff in an amount of P154,161.35; undertook to deliver security to the plaintiff pending payment; and confirmed the acknowledgement made by him in the first A/D.
In discharging the rule nisi the learned Judge in the Court below held that the defendant had failed to satisfy the three requirements essential to the relief sought by him. The Court

6 a quo found against the defendant -
(a)    
that he had failed to give a reasonable explanation for his delay;
(b)    
that he had failed to show that his application was not brought simply to delay the plaintiff's claim;
(c)    
that he had no bona fide defence to the plaintiff's claim.
The last-mentioned requirement ( a bona fide defence) involves no more than that the applicant for rescission should set forth averments which, if established at the trial, would be sufficient to defeat the plaintiff's claim. The applicant need not deal with the merits of the case and produce evidence to demonstrate that the probabilities are in his favour.
In the instant case, however, the defendant has in the course of his discursive affidavit tried to deal extensively with the merits. I consider, nevertheless, that the defendant has come nowhere near satisfying the third requirement.
It appears that from time to time cheques given by the defendant in reduction of his indebtedness to the plaintiff were not met by the bank and were referred to drawer. The defendant alleges that in replacement of some of these dishonoured cheques he gave (on unspecified dates) the plaintiff various cash amounts totalling P156,306.05. He says that throughout their dealings the plaintiff never gave him receipts for his payments. In an opposing affidavit the plaintiff's former Managing Director categorically denies that the defendant ever made the cash payments alleged by him; and he further states that for every payment made directly to the plaintiff the defendant was always issued with a receipt. Annexed to his opposing affidavit are

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copies of a number of such receipts from the defendant.
The defendant's inability to produce any record of the large
cash payments alleged by him read with the rebutting evidence
adduced on behalf of the plaintiff in regard to receipts, so
considered the learned Judge in his judgment:-
"casts doubt on the genuineness of the defendant's defence."
I respectfully agree. Having dealt with the provisions of
the second A/D signed by the defendant on 5 September 1994, the
Court below, correctly in my opinion, made the following
assessment of the probabilities in the case:-
"If it is true that the defendant believed he had overpaid the plaintiff and if he wanted a reconciliation of the accounts why would he then still go and sign an acknowledgement of debt in the sum of P154,161.35? The only reasonable inference that can be drawn from this state of affairs is that the defendant is making this application merely to delay the plaintiff's claim. He paid part of the claim after the attachment and later signed an acknowledgement of the balance. Since signing the acknowledgement of debt for P154,161.35, defendant has made no payments towards the settling of the debt."
Despite the full and careful argument presented to us by counsel for the defendant, I am unable to find any fault with the conclusion of the Court below that the appellant has no bona fide defence to the plaintiff's claim.
I further find myself in full agreement with the finding of the learned Judge that the defendant has failed to give a reasonable explanation for his delay. It has already been noticed that in respect of the delay between the service of the summons and 10 June 1994 the defendant has offered no explanation, whatever. The explanation proffered for the

8
inordinately long delay thereafter is entirely unconvincing.
Suffice it to say that I agree with the following summary by the
learned Judge:-
"Instead of the defendant reconciling his account himself he pestered Plaintiff's attorneys for a reconciliation. He does not state why he was unable to do the reconciliation himself. When the reconciliation was not forthcoming he stopped paying the plaintiff. Defendant does not tell the Court exactly when he stopped paying. He also did not take any action when he stopped paying. This is a very unsatisfactory situation."
For the aforegoing reasons the appeal is dismissed with costs.
Delivered in open court at Lobatse on    1996
•"
G.G. HOEXTER [JUDGE OF APPEAL]
I agree 
LORD N. WYLlE [JUDGE OF APPEAL]
I agree
J.H. STEYN [JUDGE OF APPEAL]

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