A Pitsane based company – Premier Milling Botswana (Pty) Ltd was last week pushed into a tight corner that might force it to close after the Gaborone High Court ruled that it should pay Barclays/ABSA Botswana approximately P7 million.
The first respondent in the lawsuit is Premier Milling Botswana (Pty) Ltd, Second Respondent is African Enterprises (Pty)Ltd, whilst the Third Respondent is Mompati Solomon.
The fourth and fifth respondents are Pieter Kleynhans and Pieter Hendrik Kelynhans respectively.
According to the judgment, African Enterprises (Pty) Ltd was sued on the basis of a surety mortgage bond passed by it in favour of the Plaintiff as security for the loans and facilities so advanced to the 1st Defendant.
“The 3rd, 4th and 5th defendants are sued on the basis of written suretyship agreements they executed in favour of the Plaintiff to cover 1st Defendant’s indebtedness to the Plaintiff,” explains the judgment .
According to the ruling, the respondents were challenging whether the plaintiff’s application for summary judgment was filed within prescribed time.
The summons against the respondents was issued on 9th August 2019 and they entered appearance to defend on 8th October 2019.
The Plaintiff filed application for summary judgment in respect of all the four claims on 31 October 2019.
The matter was set down for summary judgment hearing on 1st April 2020.
However, on March 25th , the Defendants filed an affidavit by Pieter Kleynhans, a director of Premier Milling Botswana (Pty) Ltd as an Application for Condonation – late filing of plea and opposition to Summary Judgment Application.
On the same day, the defendants filed a notice of opposition to summary judgment.
The court had to establish whether the application for condonation was properly filed, and whether the application for summary judgment was filed out of time.
Another issue that the court had to establish was whether the Plaintiff had made a case for granting of the summary judgment.
“I have come to the conclusion that regardless of the reasons therefore, the absence of a Notice of Motion required by Order 12, Rule 11 creates difficulty for the Defendants. I am therefore inclined to agree with the Plaintiff’s counsel that there is no application for condonation properly before the court”.
The court said that the defendants could have sought a postponement of the matter in order to put their house in order, but instead they proceeded with the matter.
The judge also said that the application for summary judgment cannot be dismissed on the basis that it was filed outside the 14 days stated in the High Court’s Order 34.
The Voice efforts to get more information from the company did not bear any fruit, but its Facebook page says it manufactures Papa maize-meal.
The bank had made four claims against the defendants.
The court ordered:
Payment of the amount of P2,553,196.00, with Interest thereon at 20 percent above prime lending rate per annum with effect from 19 October 2019.
Payment of the amount of P2, 317, 725.45, with Interest of 20 % above prime lending rate per annum with effect from 28 October 2019.
Payment of P1,200,000.00, with Interest thereon at 20 % above prime lending rate per annum with effect from 6th July 2019.
Payment of P809,320.93, with Interest thereon at 4.5 % above prime lending rate.
The court ordered the defendants to pay the costs, 10 % collection commission, and that Tribal Lot 3999, Pitsane situated in Barolong Tribal Area is declared specially executable.